Drug users lose right to bear arms

The U.S. District Court in the Western District of Wisconsin has issued what appears to be first opinion in the country since D.C. v. Heller, 128 S.Ct. 2783 (2008), to consider whether the federal ban on possession of firearms by users of controlled substances runs afoul of the Second Amendment.

On Oct. 3, Judge Barbara B. Crabb denied a motion to dismiss the charge, concluding that the right to bear arms does not extend to drug users.

Dismissing the argument by the defendant, Matthew Yancey, Judge Crabb wrote, “Defendant is one of many charged or convicted persons who believe that the United States Supreme Court’s decision in [Heller] means that no one in possession of a firearm can be convicted of a crime, whatever the status of the person possessing it. Defendant is wrong.”

Crabb noted that the Supreme Court in Heller explicitly stated, “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill …”
18 U.S.C. 922(g)(3) prohibits any person “who is an unlawful user of or addicted to any controlled substance” from possessing a firearm.

Crabb concluded that the statute contains the same type of longstanding prohibition on firearm possession that the Supreme Court allowed in Heller.

“Although to my knowledge no court has confronted the provision defendant challenges, which prohibits firearm possession by an unlawful user of a controlled substance, the provision’s constitutionality is not suspect. Rather, it is another example of a longstanding prohibition on firearm possession that Heller permits,” she wrote.

Analysis

The opinion is the second in the last month and a half from Judge Crabb, which rejects a Heller-based challenge.

On Aug. 27, the court rejected a Second Amendment challenge to the federal ban on possession of a firearm by a person who has been convicted of a misdemeanor crime of violence, in violation of 18 U.S.S.C. 922(g)(9).

Both opinions contain flaws, albeit different ones.

In Skoien, the court found that the ban was “longstanding,” without any acknowledgement that the statute dates only to 1996. The ban on felons and the mentally ill, in contrast, dates to 1968.

In the case at bar, the ban on drug users possessing guns is as longstanding as that concerning felons and the mentally ill. However, while Heller explicitly references the ban concerning felons and the mentally ill, it makes no mention of the ban on drug users possessing firearms.

One plausible interpretation of that omission is that the Heller Court recognizes that, unlike the felon in possession ban, the statute at issue here likely is unconstitutional.
The district court’s opinion makes no reference to the extent of Yancey’s drug use or addiction. Reading just the opinion, he could be a long-time heroin addict, or he may be just a casual user of marijuana.

In Heller, the court declined to expressly state what level of scrutiny it would apply to Second Amendment cases. In the case at bar, the district court did not state what level of scrutiny it was applying.

However, assuming that the standard is anything higher than rational basis, defense attorneys have a strong argument that citizens do not forfeit all Second Amendment rights, merely by smoking marijuana occasionally.