Most liberals aren't in favor of putting people in prison for using marijuana, but the gun control lobby thinks its just fine... at least if the marijuana user also possesses a firearm. A 2023 Gallup survey found 87% of Democrats support legalization (along with 70% of independents and 55% of Republicans), which puts groups like Everytown, Giffords, and Brady at odds with their liberal base.
The gun control groups have filed a pair of amicus briefs in support of the government's position in U.S. v. Hemani that Section 922(g)(3)'s prohibition on gun ownership by "unlawful" users of drugs is Second Amendment-compliant.
Everytown's brief largely focuses on the ability for courts to use post-1868 gun laws when deciding whether or not a modern-day statute comports with the national tradition of gun ownership, but the organization still states that "Disarming unlawful users of controlled substances is constitutional under the Second Amendment analysis established in New York State Rifle & Pistol Ass’n v. Bruen."
Everytown offers no carveout for those with state-issued medical marijuana cards, even though 40 states have legalized cannabis for medical use.
Here, late 19th- and early 20th-century history is especially relevant because that is when the nationfirst recognized the harms of widespread drug abuse.While many drugs existed in some form at the founding, “[s]oon after the Civil War, several factors combined to force the drug habit out from the shadows and to recast it as a pressing social problem.” During the war, military doctors had issued millions of doses of opium products, and many soldiers continued to use opium after the war to ease their pain. At the same time, scientists developed more potent versions of and means of consuming drugs, creating modern cocaine and injectable morphine.
Still, Everytown's brief admits that laws meant specifically "to prohibit drug addicts or drug users from possessing, carrying, or purchasing handguns” weren't put in place until decades later, in the early part of the 20th Century. And while those laws might have forbade drug addicts from possessing some firearms, it wasn't until the 1960s that Congress adopted the statute prohibiting "unlawful" users of drugs from possessing any guns.
Brady and Giffords teamed up for their amicus brief, in which they argue that Congress has broad authority to enact "categorical limitations" on gun possession in the name of public safety.
In drafting our foundational documents, the Framers embraced this longstanding historical tradition of restricting access to firearms to promote public safety. During the Revolutionary War era, the Continental Congress “prohibited possession of firearms by people who refused to declare an oath of loyalty.”
I'd say there's a pretty big difference between a Tory and a toker, but to the gun control groups its a distinction without a difference.
Notably, the historical tradition confirms that regulations may restrict a category of individuals from possessing firearms. A potential or proclivity for future dangerousness by a particular category of persons has long been deemed a sufficient basis for disarmament, without any individualized determination of dangerousness. See Rahimi, 602U.S. at 695-96 (recognizing that founding-era surety laws were a form of “preventive justice,” which “targeted the misuse of firearms,” and applied to “those persons, [of] whom there is a probable ground to suspect of future misbehavior.”
Surety laws weren't always directed at entire categories of people, though. There was often an individualized finding of dangerousness applied to someone required to post a surety bond before exercising their Second Amendment rights. What's more, those surety laws didn't impose an outright prohibition on gun possession. Instead, it conditioned keeping or bearing arms on an individual posting a surety bond that would be forfeit if they were convicted of a crime involving that firearm.
That's a very different thing than telling an 60-year-old grandmother and breast cancer patient that she's too dangerous to own a gun because she eats a gummy every day to help with the nausea of her chemo medication.
There also appears to be little to no limiting principle in the anti-gunners' argument. If Congress or state legislatures have the power to deny gun ownership to any category of people they deem dangerous, what's to prevent a red state from prohibiting transgender individuals from possessing a firearm, or a blue state from banning young men under the age of 25 from owning a gun? The Fourteenth Amendment not only ensures that states can't violate our Second Amendment rights any more than the federal government can. It also guarantees us equal protection under the law, and a categorical ban on gun possession for tens of millions of Americans who use marijuana in accordance with state statute because they're all presumed to be dangerous is just as absurd as banning gun possession for everyone who enjoys a beer at a ballgame or a cocktail with dinner.
I've made no secret about my own position on 922(g)(3). I think it's ridiculous that my late wife could have gone to prison for eating a gummy or applying a few drops of a THC tincture to her tongue to counter chemo's brutal side effects, but it would have been perfectly legal for her to own a gun while she was doped to the gills on prescription narcotics to dull the pain of her lung cancer. I just can't see the logic in this system, and I don't think the Founders would have either. My fervent hope is that SCOTUS is equally mystified by the arguments presented by the DOJ and the gun control lobby, but it will still be several months before we hear any of the justices's questions during Hemani's oral arguments... and even longer before the Court issues its decision on the validity of Section 922(g)(3).
Editor's Note: Christmas is coming a little early here at Bearing Arms!
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