Weed, Guns, and the Second Amendment

This issue has roots in a criminal code which says that it is a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm. 18 U.S.C. §922(g)(3). Translation? A citizen with no criminal record can still have their gun rights stripped

So aside from felons, and certain domestic violence misdemeanor offenders, any individual who the government can prove is a user of marijuana (and there are 17.4 million of them) ¹According to a 2011 national survey conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA) is guilty of a federal firearms felony.

Since its conception, the Second Amendment to the United States Constitution has been consistently restricted. Only recently, in the Supreme Court case District of Columbia v. Heller, did the Second Amendment come out ahead ²“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” District of Columbia v. Heller, 554 U.S. 570 (2008) .

United States v. Carter

The Fourth Circuit Court of Appeals recently reversed a case like this (weed, gun rights, and a federal felony conviction), as reported by this article by the Federal Criminal Appeals Blog. Here is an excerpt from that article:

Like many Americans, Benjamin Carter liked to smoke marijuana. He also lived in a bad neighborhood, and worried about being the victim of crime.

When the government found out about his guns and his marijuana habit, they charged him violating section 922(g)(3).

He challenged whether section 922(g)(3) can lawfully apply to someone like himself. The district court did not accept his challenge to the statute.

He pled guilty and went to the Fourth Circuit. Today, in United States v. Carter, the Fourth Circuit remanded the case, saying that the government has to do more work to show that it can constitutionally prevent potheads from possessing a gun.

[T]he court of appeals noted that

“the government still bears the burden of showing that § 922(g)(3)’s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence. And we conclude that in this case, the record it made is insufficient. Without pointing to any study, empirical data, or legislative findings, it merely argued to the district court that the fit was a matter of common sense.”

This appeal to common sense, the Fourth Circuit determined, was not sufficient.

The court remanded so that the government could develop a record in the district court to justify section 922(g)(3).

One suspects that things won’t be much different on remand, but, at least, the Fourth Circuit is taking the Second Amendment seriously.