We could learn as early as tomorrow whether the Supreme Court will take one or more cases dealing with the federal prohibition on gun ownership for “unlawful” users of drugs; an issue that has caused a fracture in appellate courts around the country. Some circuit courts have upheld the federal statute in its entirety, while others have ruled that the law violates the Second Amendment rights of at least some individuals convicted of possessing or using illegal drugs.
This past week it was the First Circuit’s turn to consider the question. A three-judge panel on Thursday heard oral arguments in a case brought by a Maine resident convicted of felony possession of methamphetamine who was later caught with a deer rifle. Jason Levasseur and his attorneys argue that there’s a national tradition of barring violent and dangerous felons from possessing firearms, but not for simply possessing illegal drugs.
On appeal, the First Circuit struggled to find analogies between the felon-in-possession law, which Congress passed in the 1930s, and the colonial era.
“Is there a historical tradition of disarming people for drug possession?” U.S. Circuit Judge Julie Rikelman asked the government’s lawyer, Brian Kleinbord.
Kleinbord said no; drugs are a modern problem. But “there were drugs at the time of the Founding,” Rikelman, a Joe Biden appointee, observed.
Kleinbord argued that even nonviolent felons were often strictly punished in early America, including being put to death or deprived of all their property. But the judges said that was different from disarmament.
“If I did my time, and had my forfeiture, could I now buy a gun?” asked U.S. Circuit Judge David Barron, who was appointed by Barack Obama.
“I don’t know,” Kleinbord admitted.
Rikelman was dubious that 18th-century felony punishment included permanent disarmament, saying that “it doesn’t seem like it did.”
Courthouse News Service says the panel appeared to be more amenable to the government’s contention that bans on all illegal drug users is akin to historical prohibitions on other classes, like loyalists, Native Americans, Catholics, and freemen.
Loyalists “were a real danger” because they might revolt, suggested U.S. Circuit Judge Seth Aframe, also a Biden appointee. “Now the problem is individual people using guns on the street. The problem has changed, but the idea of risk hasn’t changed. We can’t have the law in amber. Don’t we have to evolve?”
But the Founding-era class bans “weren’t a punishment for a crime,” said Levasseur’s lawyer, Scott Hess of Augusta, Maine. “That’s different.”
Hess added, “Felonies existed back in the day, but disarming wasn’t an option. … If a societal problem existed, and it wasn’t addressed through disarmament, we can’t change that now.”
I think Hess is right, but there’s another problem with the DOJ’s argument. Those categorical bans on entire classes of individuals deemed untrustworthy would be seen as unconstitutional today. Judge Aframe dismissed the idea of a law trapped in amber, but that’s exactly what he wants to do with the gun ban for “unlawful” users of drugs by comparing it to statutes that are morally and legally repugnant to us today.
Another issue with comparing illegal drug users to Loyalists is that Loyalists were generally allowed to regain access to their guns once they’d sworn allegiance to the U.S. government. Levasseur, on the other hand, is categorically denied his Second Amendment rights, with the only option available to him a proposed rule by the DOJ that would allow him to apply to have his rights restored if the Attorney General agrees.
Some circuit courts have suggested that there needs to be an individualized finding of dangerousness before someone convicted of drug possession can be barred from possessing a firearm, but the panel seemed skeptical of the practicality of such a requirement. Aframe argued that the courts “can’t get into everyone’s personal history,” while Judge David Barron “worried that a felony-by-felony analysis could open a can of worms.”
Drug dealing, as opposed to possession, could be empirically connected to dangerousness, he said. “And do we care what the drug is?”
It’s a legitimate question, but not one that the panel has to answer in this case.
Given the makeup of the panel (one Obama-appointed judge and two others appointed by Joe Biden), my guess is that the judges will uphold Levasseur’s conviction unless the Supreme Court accepts one of the five cases it was scheduled to hear in conference last Thursday that deal with the gun ban for “unlawful” users of drugs. If SCOTUS grants cert in one or more of those cases Levasseur’s own appeal will most likely be put on hold until the Supreme Court decides whether or not the statute comports with the Second Amendment.
It’s a complicated issue, but history, tradition, and the text of the Second Amendment do appear to be on the side of people like Jason Levasseur and Patrick Darnell Daniels, who was sentenced to nearly five years in prison for possessing guns as an “unlawful” user of marijuana. There’s a strong case to be made in favor of a historical tradition that prohibits actively intoxicated people from possessing firearms, at least in public, but there’s a distinct lack of laws from the 18th and 19th century that treat possessing or using intoxicating substances as an offense that disqualifies someone from exercising their right to keep and bear arms.
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