Shooting Straight

An short ode to conservative principles

Pardon the interruption.

Here at On Drugs, we’ve long argued that when it comes to dialing back the War on Drugs, conservative values often offer us far more than liberal ones do. Conservatism, not liberalism, champions restrained government and federalism. From the administrative state to religious freedom to textualism, conservative principles often play the winning hand. The ruling in Range v. Attorney General United States two days ago illustrates the point.

1.

In the case, an en banc Third Circuit Court of Appeals concluded that a non-violent felon could not be stripped of Second Amendment rights. The Range case centers on the federal “felon-in-possession” law—18 U.S.C. § 922(g)(1). Under 18 U.S.C. § 922(g)(1):

It shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.

Nearly three decades ago, Brian Range pleaded guilty to a count of making a false statement to obtain food stamps. Range did not recall reviewing the application that his wife had filled out. But he, accepted full responsibility for the misstatement anyway. What a mensch. Range got 3 years of probation. At the time, however, the misdemeanor of making a false statement was “punishable” by a sentence up to five years’ imprisonment, making Range ineligible to own a firearm under § 922(g)(1).

Range sued and invoked the recent decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), where the Supreme Court held that when the text of the Second Amendment covers an individual’s conduct, “the Constitution presumptively protects that conduct.” “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

The Government argued that because of Range’s food stamp crime, he was not one of “the people” entitled to Second Amendment protection. Only “law-abiding, responsible citizens,” it said, have those rights. Range did not fit the bill.

The Third Circuit did not buy it. In an opinion authored by Judge Hardiman (R) and joined by Judges Chagares (R), Jordan (R), Greenaway Jr. (D), Bibas (R), Porter (R), Matey (R), Phipps (R), Freeman (D), the en banc court ruled that the Nation’s historical tradition did not allow the Government could to strip a non-violent felon like Range of gun ownership rights. In particular, it noted that while federal law has generally prohibited individuals convicted of crimes punishable by more than one year of imprisonment from having firearms since 1961, that law fell “well short” of establishing a “longstanding” tradition for Second Amendment purposes.

2.

Range has nothing to do with drugs. Moreover, the opinion describes itself as “a narrow one,” valid only under the specific circumstances raised by Range in the case. Range did not seek—nor did the Third Circuit make any pronouncement—about the constitutionality of § 922(g)(1) generally. But you can see where I’m going.

Today, many folks are prohibited from owning guns due to drug crimes punishable by more than one year imprisonment. If 1961 is our benchmark, then our nation does not have a “longstanding” tradition of stripping non-violent drug users or convicts of firearm rights either. After all, the War on Drugs launched after 1961. Simple drug possession wasn’t a federal crime until 1968. The law did not link gun ownership prohibitions to drugs until the Drug Control Act of 1968. One could persuasively argue, in a different case, that Bruen spells the death of § 922(g)(1) under certain drug-laced circumstances.

3.

Better yet, consider § 922(g)(3), a prohibition in the Drug Control Act of 1968 that bars anyone who is “an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))” from owning a gun. Back in January, one court held that this law could not prevent marijuana users from owning guns because “the mere use of marijuana carries none of the characteristics that the Nation’s history and tradition of firearms regulation supports.”

In April, a Texas federal judge reached the same conclusion in Connolly. Actually, the Connolly ruling is more sweeping than the January ruling. It appears to have involved more than just marijuana. The opinion describes the defendant as having other controlled substances, including cocaine and patent medicine (i.e., psilocybin).

The court resolved factual disputes over the drugs in the Government’s favor. That did not matter, however, because the court invalidated the “unlawful user of or addicted to any controlled substance” provisions in their entirety.

The Connolly court could not find historical support for prohibiting controlled substance users from owning guns prior to the Gun Control Act of 1968. It rejected, for example, comparisons to colonial laws that prohibited gun use while intoxicated because, of course, using a drug while drunk is quite different from prohibiting one who uses drugs from owning a gun. The court likewise rebuffed the Government’s argument that drug users comprised “potentially dangerous groups,” “unvirtuous . . . citizens,” and “presumptively risky people”:

Over twenty states have legalized the recreational use of marijuana, and millions of U.S. citizens regularly use the substance. It strains credulity to believe that taking part in such a widespread practice can render an individual so dangerous or untrustworthy that they must be stripped of their Second Amendment rights.

In ruling as it did, the Connolly court leaned heavily on the recent Fifth Circuit case, United States v. Rahimi, where a conservative panel (in a conservative Circuit) found the domestic violence offender provision of 18 U.S.C. § 922(g)(8) to be incompatible with the Second Amendment and invalidated it in its entirety. The Fifth Circuit further held that Bruen made earlier Fifth Circuit Second Amendment precedent obsolete.

The Government took an appeal in mid-April in Connolly, and that appeal is now pending in the Fifth Circuit.¹

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Love or hate guns, my point is not about guns. Rather, it is that individuals with non-violent drug offenses ought not to be treated like violent criminals for Second Amendment stripping purposes. Also, (1) don’t write off conservatives, conservativism, or conservative values and (2) realize that conservative principles applied in one case that does not involve drugs may come to the aid in a later case that does involve drugs.

Here’s why that is: When the central underlying problem with the War on Drugs is federal expansion and overreach, applying principles hostile to federal overgrowth more often than not leads us to a better answer than one that promotes further overgrowth.

Now back to your regularly scheduled programming.

1. Care about drug policy issues, dialing back the War on Drugs, promoting equitable access, and changing the law? Consider filing, supporting, or organizing the writing of an amicus brief in this case—a far better investment than propping up Potemkin “psilocybin services” attic projects or academic thought pieces. Indeed, this ruling is worth protecting if you are a proponent of “psilocybin services” and defending the rights of “psilocybin services” users.