Marijuana Users and Their Gun Rights

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)1 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 ahead2.

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.

  1. According to a 2011 national survey conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA) []
  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) []

Nothing to Hide: The False Tradeoff between Privacy and Security

The title of this article is also the title of this piece by Daniel J. Solove and is available via SSRN. This lengthy argument highlights the argument I made in this post about the tradeoffs between safety and security. His point seems to mirror my own. Here is the abstract:

“If you’ve got nothing to hide,” many people say, “you shouldn’t worry about government surveillance.” Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

In addition to attacking the “Nothing-to Hide Argument,” Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments – such as the “Luddite Argument,”the “War-Powers Argument,” the “All-or-Nothing Argument,” the “Suspicionless-Searches Argument,” the “Deference Argument,” and the “Pendulum Argument” – have skewed law and policy to favor security at the expense of privacy.

The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn’t fatal to security measures; it merely involves adequate oversight and regulation.

The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.

The argument is often made that any infringement on privacy, when measured against a potential unacceptable security risk, is tolerable for the protection of our society as a whole. Further, those that resist infringement on their privacy must be hiding something and shouldn’t have such privacy anyhow. I reject these arguments and recommend a full read of this paper.

How Far is Too Far? Trading Freedoms for the Children

What are We, as Americans, Putting up With?

“‘The state must declare the child to be the most precious treasure of the people.’ .. as long as the government is perceived as working for the benefit of children, the people will happily endure almost any curtailment of liberty and almost any deprivation. It is truly heartwarming to see how well this lesson has been learned by the American government. In the name of children, incursions into the private lives of American citizens have been made that we Nazis would have gazed at with open-mouthed admiration.”
— Mein Kampf, Adolph Hitler, Page 403

For the Children

One of the easiest vehicles a politician can use to push an unpopular bill through congress is using the excuse of “protecting the children”. As one can see in the quote above, this is not a new concept. Trading freedoms for security is a very popular theme in today’s culture in America. Look at the Traffic Safety Administration: the TSA can overtly grope a traveler’s groin or label them a terrorist if they refuse or complain about the molestation.

In the name of protecting children, the civil rights of entire portions of the United States population are infringed, trampled, or stripped away entirely. I am referring to, of course, Sex Offenders. Ah, the dreaded Sex Offender…

To be objective, there are admittedly monsters out there who are predators and prey on children. They kidnap and kill them after committing unspeakable sexual assaults on the victim. The news is chalk full of the most twisted, sensationalized stories in the U.S. regarding these unconscionable monsters. There is no excuse for these actions and predators like this are absolutely un-defensible. However, these are the exception, not the rule.

Sex Offender Registries became prevalent in State laws in the 1990’s, and focused on keeping tabs on violent, predatory, and repeat offenders. Back then there were 11 crimes that were worthy of such administrative monitoring (rape, aggravated sexual assault on a minor, kidnapping a minor, etc.).

There are now, on average, 1891.

Many laws being passed make lives more difficult for sex offenders. The presumption is that these laws are aimed protecting the community and directed at the predators who are guilty of the 11 heinous crimes referenced above. That presumption is usually false. Many laws that place higher restrictions on sexual offenders, do so across the board to anybody registered as a sex offender. Take Nebraska’s law, LB-2852, for example. Among other things, this law changed the State’s web site to include anybody and everybody on its sex offender registry. Good idea, or bad idea?

Does a man who had a baby with his girlfriend when she was 1 month away from the age of consent, really need to be on the same website as a pedophile-kidnapper? Before you balk at this for being irrational, ask yourself this: if you’ve ever looked up a sex offender locating website, can you tell who are the predators and who aren’t? Do you immediately lump everybody on that website into the same group of gutter-scum?

Can you tell the difference between crime codes? The man above is real, and his crime is Attempted 1st Degree Sexual Assault. Would you know what that means? He is now in his thirties and has been on the registry since the 1990’s. Most would assume now, because of his current age, that his crime was that of a pedophile.

Lets look at this from another angle. A real teenage boy in Georgia receives a ‘Sext’ from a girl he went to high school with. Catastrophe strikes and he is put on probation for possessing child pornography. That is 25 years on Georgia’s sex offender registry. When this kid is 40, he will still be on the registry with a child pornography conviction. Would you assume he was a teenager when he was charged, or would you immediately be afraid of him?

With over 728,0003 people now registered as sex offenders in the United States, the state of fear is gripping the average American citizen. In States like Nebraska there are three levels of sexual offenders4.

  • The first level is misdemeanor crimes like public indecency (flashing at Mardi Gras, pissing in the alley behind the bar), child pornography cases like the kid described above, and non-contact crimes.
  • The second is for non-aggravated contact crimes, and more severe crimes with no contact.
  • The third is a lifetime registration for aggravated contact/assault crimes, repeat offenders, and violent predators.

The law cited above, LB-285, puts all of these classes together online on Nebraska’s Sex Offender web site. Many ordinary people without a law degree would tend to believe that anybody bad enough to be on that website is dangerous and should be avoided. It’s a common misconception.

Back to the issue at hand: unconstitutional laws that are tolerated by the People under the guise of protecting our children.

Constitutional issues:

Ex Post Facto violations – Legally this means punishment after the fact. Somebody is charged, convicted, sentenced, and later punished again beyond their sentence. Sometimes called double-jeopardy, this is unconstitutional. People that were never on the sex offender registry because their crime was not a registrable offense at the time of conviction get put on a registry after the fact because of laws like LB-285. The Supreme Court considers sex offender registries legal because it does not believe being placed on a registry is a punishment (only civil administrative action). Would you feel punished if you were subject to these laws? (Some registrable crimes are not even sexual in nature like kidnapping or using a misleading domain name on the internet.)

Fourth Amendment5 violations – This means a search and seizure of property without proper cause. Many laws make provisions for State Police agencies to enter the home of a sex offender at any time and conduct a search. Fortunately, at this time, these portions of law have been held unconstitutional, but that doesn’t keep states from trying.

Eighth6 and Fourteenth7 Amendment violations – These are Due Process of Law and Excessive, Cruel, and Unusual punishment. In Colonial times, an individual convicted of an unpopular crime would be forced to wear a sign around their neck and stand in the town square to be publicly mocked. Others were branded like cattle with a letter like ‘M’ for murder, ‘T’ for Thief, or ‘A’ for Hester Prynne8, to shame these individuals and drive them away from communities. The US Supreme Court doesn’t make the connection between these laws (which it considers as violating the Eighth Amendment) and sex offender registries.

Real Danger to Children

Fear makes many citizens want to lock up sexual offenders and throw away the key. However, lets look at the dangers:

According to a 1994 study by the Bureau of Justice Statistics9, slightly over 5% of all sex offenders re-offend sexually, over 90% of sexually offenses happen from first-time offenders, and the recidivism rate of sexual offenders (returning to prison for any reason) was 25% lower than the average rates of any other crime (43% v. 68%). The recidivism rate of sexual offenders is the lowest of any offense type except for murder/homicide.

The natural proclivity of some sex offenders (i.e. predators, untreated addicts, etc.), however, shows that a convicted sex offender is four times more likely to commit a sex crime in the future than somebody convicted of another type of crime. This may scare some people, but think to yourself: how much more likely is a bank robber to commit another bank robbery than an average citizen who has never robbed a bank? Statistics show they are much higher than four times more likely than the average non-bank-robber citizen of America to repeat that crime.

The study above showed that 90% of all sexual offenses occurred by a non-registered, first-time sexual offender. A child, or anybody for that matter, is more likely to be sexually assaulted by somebody who is not on the registry at all (first-time offenders are obviously not on the registry). Logically, then, this means that the registered sex offender in your neighborhood is statistically SAFER than your non-registered neighbors.

The Nation, and its States, spend a huge amount of time and money on sexual offender registries to protect our children. But how are we protecting our children?

  • Jaycee Dugard was kidnapped by a level 3 sex offender, under the harshest conditions of sex registry, but nothing in the registry protected her from Phillip Gurrido.
  • Dru Sjodin was kidnapped and murdered by a registered sex offender, but nothing in the registry requirement could have prevented her murder.
  • Michael Devlin kidnapped two boys, one of them for 5 years. He had no criminal record and will never have to register as a sex offender (he received 3 life sentences).
  • Adam Walsh was abducted from a Sears department store at the Hollywood Mall in Hollywood, Florida, on July 27, 1981, and later found murdered and decapitated. Adam’s Father, John, was the force behind the Adam Walsh Act10.

In all of these cases, the kidnapper traveled well out of his way to abduct his victim. Nothing in any State’s sex offender registry could have prevented these crimes. These men were sick, pathological, focused on finding a victim, and the rarest of sexual offenders. Yet, how could registries have prevented these crimes? Answer: the crimes could not have been prevented by sexual offender registries.

In this new decade, sex registries are required to be compliant with the federal Adam Walsh Act, which lists every level of sex offender are actually counter-productive to their stated cause. By listing all levels of offenders online, the violent and predatory offenders can hide within the masses of the online databases.

“The registry is not being used as it was intended, so let’s get rid of it and focus on the 10,000 violent offenders and track them.”
-John Walsh

What kills children?

The following is from the CDC and the American Journal of Psychiatry on the top causes of deaths to minors in 200211:

  • A child is 1,400% more likely to hang themselves than to be kidnapped and killed by a Sex Offender
  • A child is 1,500% more likely to shoot themselves than to be kidnapped and killed by a Sex Offender
  • A child is 3,200% more likely to murdered by a firearm from somebody besides a Sex Offender
  • A child is 4,000% more likely to shot, stabbed, burned alive or poisoned than kidnapped and killed by a Sex Offender
  • A child is 15,300% more likely to killed in a car accident than to be kidnapped and killed by a Sex Offender

So really, how bad is it to be a Sex Offender?

Besides being virtually unemployable, and subject to vigilantism and harassment, all Sex Offenders:

  • Cannot use FEMA storm shelters
  • Cannot travel without prior approval
  • Cannot stay in hospital overnight without approval

and can be:

  • Barred from living with their family/children
  • Barred from gyms
  • Barred from children’s events
  • Barred from tourist destinations
  • Barred from public parks
  • Barred from student loans and continuing education
  • Barred from any type of scholarship
  • Barred from FHA loans
  • Barred from Small Business Loans
  • Barred from Tax Credits
  • Barred from Section 8, public housing, homeless shelters.

Would you choose this life for violent, predatory sexual assailants? I would. What about low-risk men and women who made stupid choices and never touched a child or another human being in a sexual way?

How far will things go before the American public takes a stand against trampling the Constitutional rights of a group of people in the name of a greater cause? This is a very slippery slope of government subtly trading freedoms away under the guise of protecting children.

Three examples:
Sexual Offender Laws (America) – cause: child safety
TSA molestation and profiling (America) cause: public safety from terrorists

. . .and eventually. . .

Genocide (Nazi Germany, ca. 1930’s) – cause: racial purity

This might seem like a huge jump, but consider the quote, and I’ll end with that:

“First they came for the Socialists,
and I did not speak out because I was not a socialist.
Then they came for the trade unionists,
and I did not speak out because I was not a trade unionist.
Then they came for the Jews,
and I did not speak out because I was not a Jew.
Then they came for me,
and there was no one left to speak for me.”
– Pastor Martin Niemöller
Interned from 1941-1945 at the Nazi Concentration Camp in Dachau

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  1. Taken from the aggregate of all federal penal codes identified under SORNA []
  2. Full text of LB-285 []
  3. Source is an NCMEC study on the geographical locations of sex offenders. []
  4. Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking []
  5. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. []
  6. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. []
  7. Full text of the Fourteenth Amendment to the United States Constitution []
  8. Main character in Nathaniel Hawthorne’s classic novel The Scarlet Letter []
  9. Recidivism of Sex Offenders Released from Prison in 1994 []
  10. The Adam Walsh Child Protection and Safety Act of 2006 []
  11. CDC study for all deaths in 2002 []