I was momentarily mystified when I saw an email from the gun control group Brady today trumpeting " Brady, GIFFORDS Urge SCOTUS to Protect Effectiveness of Life-Saving Brady Background Check System on Public Safety." I know the Supreme Court has taken two Second Amendment cases this term, but neither of them deal with background checks. As it turns out, this brief was filed in the Hemani case, which deals with the federal prohibition on gun ownership for "unlawful" drug users... including those who use marijuana legally under state law where it has been decriminalized for medical and/or recreational use.
That fact doesn't appear anywhere in the gun control groups' press release though. The closest they get is a vague statement about protecting public safety by "prohibiting certain categories of people from accessing firearms," without every mentioning what specific category they're talking about.
The brief explains:
“Since the Founding, legislatures have exercised their power to protect against potential threats to public safety by restricting certain categories of people from accessing firearms. Courts have routinely upheld these categorical restrictions, recognizing that the individual right to bear arms is not absolute and that these reasonable public safety regulations are entirely consistent with this Nation’s historical regulatory tradition.
“Such prohibitions serve important purposes in the broader framework of modern gun safety regulations. Through enacting categorical prohibitions, legislatures provide clear lines to effectively mitigate potential risks. And today’s regulatory systems, such as the federal Brady background check system, depend on these prohibitions for clear and timely determinations on firearm eligibility. Were the background check system to be compromised—as it would be without categorical prohibitions—more individuals who should not be permitted to possess firearms would be given access to them, a demonstrated direct threat to public safety. In resolving this appeal, the Court need not, and should not, call into question the centuries-old national practice of allowing legislatures to enact such prohibitions and regulators to rely on them to advance public safety.”
So, their theory is that if SCOTUS decides that Section 922(g)(3) requires an individualized finding of dangerousness before someone can be prohibited from owning guns because of their drug use, it would gum up the NICS system. I don't see how that would be the case, though. Someone arrested for violating 922(g)(3) would be able to raise an affirmative defense that they're not dangerous and therefore shouldn't be charged for possessing a gun, but once the case has been adjudicated they would either be guilty or not, and their record would reflect that when and if a NICS check took place.
What Brady and Giffords are really saying is that the feds should be able to prosecute anyone who uses marijuana while possessing firearms, whether its a 19-year-old gang member busted for selling drugs or a 69-year-old grandmother who eats an edible to help her deal with the side effects of chemotherapy.
The amicus brief they've filed urges SCOTUS to recognize that both Congress and state legislatures can impose a categorical ban on firearms possession on any group they deem to be dangerous... and that's a dangerous idea all its own. It's one thing to argue that allowing meth addicts or even cannabis users to exercise their Second Amendment rights is too risky, but if the gun ban lobby got its way states (and Congress) could impose similar prohibitions on virtually any group that politicians don't like. Blue states could ban gun ownership for evangelical Christians or anyone who calls themselves a III percenter, while red states could target self-proclaimed Antifa members or those who identify as transgender.
And yes, states would be free to ban marijuana users from possessing guns, even if using marijuana isn't a crime under state law.
I can't help but think that Brady and Giffords know that a large portion of their base is uncomfortable with this argument, if not opposed outright. Support for legalizing marijuana generally polls above 50% in every political ideology, but self-described liberals always have the highest levels of support, and it's usually around 80%. I'm sure there's a significant number of gun control fans who are okay with the position staked out by Brady and Giffords, but my guess is that there's an even bigger group that believes simply using marijuana shouldn't be reason to deprive someone of their constitutional rights... even if they themselves aren't fond or fans of the Second Amendment.
