A Feb. 3 decision in an Oklahoma federal court affirms that the Second Amendment right to possess firearms may not broadly be restricted.
Even those of us who strongly support laws against marijuana use should recognize that mere marijuana possession and small-batch use should not negate a fundamental constitutional right to own (not use) a gun that is in no way connected to the alleged cannabis infraction.
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At issue here is the nature of a fundamental constitutional right. It is true that even rights of such exalted status can be restricted for carefully targeted reasons that are well-rooted in the nation’s history and legal traditions. Thus, First Amendment speech rights still allow for laws against libel and threats of violence. The Sixth Amendment right to a trial by jury doesn’t necessarily apply for misdemeanor offenses. And so on. Even so, however, the exceptions are all narrow and rooted in original public understanding of the Constitution and long-standing common law. Except in such narrow circumstances, constitutional rights are sacrosanct.
Likewise with gun rights. Nobody seriously argues that legislative bodies lack authority to regulate, in limited ways, how and where guns may be kept or borne. For example, guns can be banned from school grounds or airports, guns may not be held aloft by people who are inebriated, and gun ownership rights can be forfeited upon conviction for violent felonies.
Otherwise, though, the right to keep arms “shall not be infringed.”
For years, though, one provision of federal law arguably has violated that Second Amendment right. That provision, 18 U.S.C. § 922(g)(3), was designed to combat major illegal narcotics traffickers, specifically to curb gun violence that so often accompanies such trafficking. It says that nobody who “is an unlawful user of … any controlled substance” may “possess” a firearm.
Occasionally, prosecutors seize on this law, especially as part of tactics to pressure defendants accused of other laws as well, to indict people whose mere ownership of a gun has nothing to do with the alleged offense of using a controlled substance. In 2012, for example, I wrote of a high-profile case in Alabama in which a politician was slapped with a weapons violation for a handgun kept in the closet in his house in Mobile because he admittedly smoked marijuana on the beach 90 minutes away in Florida. The gun had nothing to do with the marijuana (or vice versa), nor was it used to commit or even threaten any violence, nor was the politician even allegedly under the influence when in the same room, house, city, county, or state as the gun. I argued then — and a separate U.S. Fourth Circuit Court of Appeals decision a week before that concluded in similar circumstances — that 18 U.S.C. § 922(g)(3) was unconstitutionally applied in that case.
By rough comparison, the provision in question is akin to saying that somebody who is charged (but not yet convicted) of a reckless driving felony in Washington, D.C., (and thus under federal jurisdiction) can also be charged with illegal gun possession for a handgun in rural Virginia — a gun that was legally possessed up until the moment that he drove recklessly two hours away. The principle is the same: One cannot be denied a fundamental constitutional right for an offense (alleged but not yet convicted for) utterly unrelated to the exercise of that right. If you cause an accident by jaywalking, government has no right to retroactively make illegal one of your earlier diatribes against local government at a public town meeting.
In the case in Oklahoma federal district court, the judge ruled that 18 U.S.C. § 922(g)(3) is unconstitutional as written, not just as applied in that case. There, a man on bail for an alleged violent offense was discovered to have both a loaded handgun and marijuana in his car, the former of which was otherwise legal and the latter of which he claimed was legal because he worked at a state-allowed medical marijuana dispensary. Clearly, the man was no angel. Still, he had not yet been convicted for any offense that could subsequently trigger a diminution of his constitutional rights.
The judge made perfect sense, in logic and in constitutional application, to rule that “mere status as a user of marijuana [does not] justif[y] stripping [the defendant] of his fundamental right to possess a firearm.”
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As it happens, the Supreme Court on Oct. 31, 2022, unfortunately declined to consider a similar marijuana-gun case out of Missouri in which the Eighth Circuit U.S. Court of Appeals had ruled in favor of the government, against the person accused of illegal gun possession. Now that the Oklahoma district judge has ruled otherwise, though, the question might wend its way back to the Supreme Court.
If petition for such a high court hearing eventually is filed, this time the justices ought to accept it. The statutory provision at issue is an egregiously over-broad infringement on a fundamental constitutional right. Nobody should lose a fundamental right merely upon allegations that he broke a minor, unrelated law.