Bruen, guns, and controlled substances

AP Photo/Keith Srakocic

For a long time, there wasn’t much of a fight over guns and controlled substances. After all, if they were controlled, only those breaking the law obtained them. It wasn’t a popular hill for most folks to be willing to die on in the discussion of gun rights.

I mean, you talk about law-abiding gun owners, then those who are using drugs illegally? Yeah, it’s a hard sell for a lot of people.

But then states began to legalize marijuana. People could follow state law and obtain a controlled substance, and that made things…interesting.

However, there’s been an issue with regard to guns. In particular, those who are using marijuana, even for medical reasons, have been denied their gun rights over and over again.

Over at The Truth About Guns, Dan Zimmerman argues it’s time to use the Bruen decision to change that.

The Bruen decision established text, history and tradition as the criteria for evaluating gun control laws. That puts the prohibited person criteria of the Gun Control Act (18 U.S.C. § 922(g)) in the crosshairs. There are 10+ disqualifying criteria, including anyone: “. . . who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);

Just like many TTAG readers, I have been a lawful user of a “controlled substance.” And so, I wonder what distinguishes me (or you) from the unlawful user of any such controlled substance.  What are these “controlled substances” exactly?

There are hundreds enumerated in Schedules I through V. Cough medicines containing codeine are at the low end of the scale in Schedule V. Testosterone is in the middle in Schedule III. Marijuana is in Schedule I; and weed is undoubtedly the most prominent drug of concern overall. Still, it’s not the only drug we ought to be concerned about.

What is an “unlawful” use? Suppose your spouse was prescribed a codeine-containing drug some time ago, perhaps for a cough or dental procedure. She didn’t use it all. You come down with a nasty, uncontrollable, cough and grab the most promising substance in your medicine cabinet.

Presto! You are an unlawful user. Alternatively, you’ve been prescribed testosterone (and Viagra) for that little performance problem. Your son has a hot date tonight and he pinches one of your patches. Presto! He’s a prohibited person.

What distinguishes the unlawful user of any other controlled substance from the legally prescribed patient? If codeine is too dangerous for firearm owners, then how does a prescription make it non-dangerous? If testosterone is too dangerous for firearm owners then shouldn’t all men be declared to be prohibited persons due to their endogenous poisoning by this controlled substance?

I’d advise you to go and read the whole thing. Zimmerman makes a lot of excellent points about the stupidity of this prohibition.

After all, a prescription is just a piece of paper, a permission slip to obtain a controlled substance. It doesn’t fundamentally change the nature of that substance to make it less dangerous.

Of course, he also brings up a valid point about how easy and how common it is for someone to become an illegal user of a controlled substance. I suspect most households have some leftover painkillers that are later used when someone else is hurting.

Under current law, owning a gun and doing such a thing is yet another criminal charge.

Zimmerman argues that this prohibition needs to be examined under Bruen’s “text and history” standard and, if it doesn’t meet the criteria, it should be overturned. I happen to agree.

While some readers may not particularly care, we need to remember that every prohibition against gun ownership is eventually used to justify additional prohibitions. This one has been used to justify banning gun ownership for those convicted of DUI, which could then be used to justify bans for those with other driving offenses, and so on.

Zimmerman gives other reasons why people might opt to care.

Regardless, we shouldn’t tolerate gun rights being denied to any American without due process of law, even if they’re using a substance we would prefer they didn’t.