Supreme Court justices have several cases dealing with the federal prohibition on gun possession for “unlawful users of drugs” to consider when they return from their summer break, and with appellate courts split on whether that prohibition comports with the text of the Second Amendment and the tradition of gun ownership the odds of the Court taking up the issue are fairly decent.
In the meantime, though, the debate (and disputes) continue in the lower courts. On Tuesday, the Eighth Circuit Court of Appeals vacated an Iowa man’s conviction for possessing guns at the same time he regularly consumed marijuana, sending the case back to the district court for further review.
In a 14-page opinion, a three-judge panel for the U.S. Court of Appeals for the Eighth Circuit noted that after an Iowa district court initially decided the case, the appeals court issued new guidance in a February ruling that said the prohibition on gun ownership by drug users is justified only in certain circumstances—not always.
In returning the current case—U.S. v. Cordova Perez—to the Southern District of Iowa, judges said the lower court failed to make a determination as is now required in the Eighth Circuit as to whether defendant Aldo Ali Cordova Perez Jr.’s marijuana use made him a credible threat to public safety.
On the surface, the ruling is good news for those hoping to see Section 922(g)(3) weakened or struck down altogether. The panel, however, gave the district court judge very broad leeway to determine whether Cordova Perez was a threat to public safety because he smoked pot. According to the panel, there’s no need for prosecutors to provide direct evidence that using the drug caused him to be violent or careless with a firearm.
“If marijuana caused Cordova Perez to act or drive in an erratic way, for example, he might be disarmed constitutionally under § 922(g)(3) even if his outward behavior was not violent in the same way as, perhaps, the ‘combative hostility’ sometimes associated with ‘a drug like PCP,’” the opinion says.
“Even if Cordova Perez normally used marijuana without issue,” it adds, “marijuana could have triggered a single erratic or dangerous episode.”
The Eighth Circuit has previously held that “neither drug use generally nor marijuana use specifically automatically extinguishes an individual’s Second Amendment right,” but by setting such a low bar to decide that Cordova Perez is dangerous because of his drug use the panel is opening the door for judges to uphold Section 922(g)(3) in almost every circumstance.
That jibes, at least somewhat, with a recent decision from the Third Circuit. In U.S. v. Harris the appellate court rejected a facial challenge to the statute, but laid out several questions to determine whether a particular drug user poses enough of a danger to legally prohibit them from owning or carrying a gun, including the length and recency of the defendant’s use during and shortly before his gun possession; the drug’s half-life; whether use of the drug affects a person’s decision making or judgment, and the long-term physical and mental effects of the use of that drug.
While that decision pays lip service to an individualized finding of dangerousness, it still opens the door for judges to conclude that use of a particular drug would bar someone from owning a gun in every possible circumstance. It also conflicts with what the Fifth Circuit has said; Section 922(g)(3)’s language violates the Second Amendment, though laws barring gun possession while someone is actively intoxicated may comport with the national tradition of gun ownership.
The Justice Department, meanwhile, has argued in a cert petition that Section 922(g)(3) applies to “habitual” drug users, even though that word never appears in the statute. The federal prohibition simply applies to anyone who ““is an unlawful user of or addicted to any controlled substance,” no matter the frequency of their use.
I have no idea if SCOTUS will address this issue next term, but based on the Rahimi decision my guess is that a majority of justices would agree that there needs to be some finding of dangerousness before someone could be barred from possessing a gun as a drug user.
The devil is going to be the details. What does that dangerousness test look like? Are the general effects of a particular drug like PCP or methamphetamine enough to presume all users are dangerous? As the Eighth Circuit suggested, could someone be deemed dangerous if a drug made them act “erratically”, even though no harm was done?
By their very nature, drugs and alcohol change our behavior. If that alone is enough to justify stripping an “unlawful” user of drugs of their Second Amendment rights, why wouldn’t that also apply to any lawful users of alcohol or prescription narcotics?
This may not be an easy issue for the courts to decide, but it is an important one. With more than half the states legalizing cannabis for medical and/or recreational purposes, tens of millions of people will be affected by whatever the Supreme Court ultimately says.
Editor’s Note: With dozens of Second Amendment-related cases in the federal courts, the decisions by unelected judges are having a major impact on our right to keep and bear arms.
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