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Another District Court Upholds Ban on Firearms Possession by Unlawful Users of Controlled Substances:

The case is U.S. v. Chafin, 2008 WL 4951028 (S.D. W. Va. Nov. 18), and came about when Juan Chic and Cory Chafin tried to buy a gun while smelling of marijuana. The gun dealer refused to sell then gun and called law enforcement; law enforcement eventually learned that Chafin already had a gun, and Chafin was prosecuted for various crimes, including possessing a gun while "an unlawful user of or addicted to any controlled substance" (18 U.S.C. § 922(g)(3)). Here's how the court rejected Chafin's Second Amendment argument:

Following Heller, it is ... apparent ... that the individual right [to keep and bear arms] is "not unlimited, just as the First Amendment's right of free speech ... [is] not" unlimited. ("[W]e do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.")Specifically, the Heller decision observes as follows:

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The Supreme Court stressed that these ... significant carve outs were "presumptively lawful regulatory measures" that were "examples[,]" rather than an "exhaustive" listing, of legitimate prohibitions.

The foregoing discussion suggests at least two reasons why defendant's reading of Heller is too broad. First, the Supreme Court addressed only the constitutionality of a sweeping District of Columbia firearm regulation -- one that included a total ban on handguns -- that was far more restrictive than the statutes [involved here]. Second, Heller sanctioned some well-rooted, public-safety-based exceptions to the Second Amendment right that appear consistent with Congress' determination that those unlawfully using or addicted to controlled substances should not have firearms at the ready.

An in-depth analysis is likewise unwarranted concerning defendant's contention that any post-Heller firearm restriction must satisfy strict constitutional scrutiny. The law appears otherwise. See Heller (Breyer, J., dissenting) ("Respondent proposes that the Court adopt a 'strict scrutiny' test, which would require reviewing with care each gun law to determine whether it is 'narrowly tailored to achieve a compelling governmental interest.' But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws -- prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales -- whose constitutionality under a strict scrutiny standard would be far from clear.").

J. Aldridge:
Well like Blackstone said, arms suitable for defense was contingent upon being allowed by law.
11.24.2008 10:26am
boose:
Is using a controlled substance a felony? If not, does this also mean that you can't get a gun if you commit other misdemeanors?
11.24.2008 10:39am
ForWhatItsWorth:
"...The gun dealer refused to sell then gun and called law enforcement..."

Well, so much for the typical "evil dealer" anti-gun argument. Actually, I don't even know a dealer who hasn't refused to sell firearms to someone at some point. I know of none who WOULD sell to a doper..... especially when they are stinking of their dope. :) :)
11.24.2008 10:45am
ForWhatItsWorth:
Boose: "...does this also mean that you can't get a gun if you commit other misdemeanors?...."

Yes, domestic violence...... misdemeanor versions of that are specifically mentioned on the 4473 as disqualifiers.
11.24.2008 10:50am
cboldt (mail):
-- But the majority [in Heller] ... broadly approving a set of laws -- prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales -- whose constitutionality under a strict scrutiny standard would be far from clear. --
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I can't imagine any federal district or appellate court not taking advantage of Scalia's dicta in Heller. He might as well have expressly held that the only type of law that is invalid under the 2nd is one that outright bans possession in the home; and even complete bans on possession are okay when applied to a person who breaks laws.
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"Broad approval" is being transmogrified into "expressly upheld on challenge."
11.24.2008 10:54am
cboldt (mail):
J. Aldridge: -- like Blackstone said, arms suitable for defense was contingent upon being allowed by law. --
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Was he referring to the US, or to England? What other context surrounds the expression? A specific cite for your direct proposition would be helpful.
11.24.2008 10:58am
JosephSlater (mail):
No comment on the merits, but Juan Chic is a pretty great name.
11.24.2008 11:02am
Melancton Smith:
I totally agree with not being allowed to 'bear' arms while under the influence (of any drug, including alcohol) but does this mean he is banned from owning guns?

The judge said he can't have "guns at the ready." What does that mean?
11.24.2008 11:34am
Jim at FSU (mail):

those unlawfully using or addicted to controlled substances should not have firearms at the ready.


Wait a second, he wasn't prosecuted for "having a firearm at the ready" he was prosecuted for owning a firearm while being high. He didn't have the firearm at the ready or anywhere on his possession, he merely owned one and told the cops about it when they asked.

It is a bad sign when judges uphold a law based on what they wish it did and not what it actually does.
11.24.2008 11:38am
cboldt (mail):
-- The judge said he can't have "guns at the ready." What does that mean? --
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It means he cannot posses (by ownership, loan, or otherwise) or keep or bear any firearm. He would have a firearm "at the ready" if it was kept in a bank safe deposit box, where he had the key.
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This federal prohibition applies to all recreational pot smokers, cocaine users, and those who use prescription or over-the-counter medications beyond the labeled doses, etc.
11.24.2008 11:41am
Obvious (mail):
This is a major problem with the Heller decision; no guide as to reasonableness was given regarding proper restriction. There are so many non-violent ways to violate the law, often unintentionally, that it seems prima facie improper to lose a basic right of self-defense for life as a result. I'd guess there'd be many fewer legal gun owners if everyone who'd ever smoked MJ was prevented from owning a gun.

Given that felonies are a matter of public record, I'm frankly surprised more home invasions don't occur directed to a segment of the population known to not be legally entitled to defend themselves.
11.24.2008 11:43am
Melancton Smith:
Actually the question on the 4473 to buy a firearm is not whether you have ever used recreational drugs but whether you currently use them. Smoking MJ in the past (whether you inhaled or not) is not a disqualifying factor by my reading.

I find the rule that users can't own firearms reprehensible. I favor something more along the lines of how we treat automobile ownership...you can't drive while under the influence, but the automobile is 'at the ready'.

My feeling is that one under the influence (drugs or alcohol) should not 'bear' arms. They should have their firearms put away for the duration of their intoxication.
11.24.2008 11:53am
Sean M.:
Let's be careful of sliding language here. Felons do not lose the right to self-defense. They lose the right to own a gun. One can defend one's self and one's home in ways other than firearms.

I support firearm ownership and the individual view of the Second Amendment, but to say the right to own a gun is the same as the right to self-defense is inexact and does not do credit to the pro-gun view.
11.24.2008 11:54am
JohnO (mail):
Obvious:

This might be completely wrong, but if I were a burglar (which I'm not), I would think the likelihood of a gun in the home is greater among convicted felons than non-convicted felons, no matter what the law says.
11.24.2008 11:56am
arbitraryaardvark (mail) (www):
So what is the standard of scrutiny under the second amendment? Is the only answer, we don't know yet?
About half the population has tried marijuana. Maybe 10-15% of the population would be considered users. Sounds to me like that infringes on the right, but then I'm not the court.
Scalia in Heller discussed the meaning of most of the words of the second amendment, but never discussed what "infringed" meant.
11.24.2008 11:57am
Gaius Obvious (mail):
ATF Form 4473 Part 12(e):

"Are you an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or any other controlled substance?"

Tobacco is a "controlled substance" (it's the "T" in BATFE after all). Does that count?
11.24.2008 12:02pm
cboldt (mail):
-- what is the standard of scrutiny under the second amendment? --
.

Longstanding prohibitions are presumptively lawful [constitutional].
11.24.2008 12:08pm
cboldt (mail):
-- Tobacco is a "controlled substance" (it's the "T" in BATFE after all). Does that count? --
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I don't think so. But steroids are regulated under the Controlled Substances Act.
11.24.2008 12:19pm
zippypinhead:
Yet another post-Heller decision indicating that the §922(g) prohibited person classifications in general are likely to survive. This decision appears consistent with the probable intent of Justice Scalia's rather pointed dicta. The only exceptions may be §922(g)(8) and (9), which prohibit firearms possession by those under a domestic relations restraining order and those convicted of misdemeanor crimes of domestic violence. It will be interested to see if the Second Amendment issue shows up in dicta in the 922(g)(9) case currently pending before the Supreme Court.

Or the cynic might simply chalk this up to the "pseudo-Darwin Award" exception to the Second Amendment: If you're dumb enough to show up at the gun store reeking of pot or alcohol, or covered in human blood, or babbling incoherently about the need to shoot the Space Aliens (or democrats?), you deserve everything that's coming to you...
11.24.2008 12:25pm
Bill McGonigle (www):
Is there data on violent behavior among those high on marijuana? The ones I've known have trouble getting motivated to stand up. Compare/contrast with those high on alcohol. (per Gaius, BATFE)

So, if a guy with a bad back can be shown to be addicted to pain patches I can grab his guns? I'll keep that in mine the next time I try to become a despot.

BTW, how does the aforementioned felon defend his home, booby traps and katanas?
11.24.2008 12:30pm
Bill McGonigle (www):
Oh, yeah, subpoena AA attendance records as well, for the public safety.
11.24.2008 12:33pm
Oren:
922(g)(8) &(9) seem far more defensible than (3), at least in the statistical sense of being a strong predictor of future violence.

Question: does mere possession of a controlled substance qualify (combined with possession of a firearm) provide sufficient evidence of a (g)(3) or does the state have to prove the "user or addicted" prong more literally?
11.24.2008 12:33pm
zippypinhead:
Tobacco is a "controlled substance" (it's the "T" in BATFE after all). Does that count?
Nope. Under Federal law "controlled substance" is defined at 21 U.S.C. §802(6) as including only specifically-scheduled drugs. The statutory definition expressly states that "[t]he term does not include distilled spirits, wine, malt beverages, or tobacco, at those terms are defined . . . [in] the Internal Revenue Code. . ."

So Joe Camel's guns are safe for now. Although if the wrong member of the Presidential Transition Team happens to visit this blog thread, your question might give them a great new idea for another legislative initiative to throw in the hopper come January...
11.24.2008 12:34pm
Obvious (mail):
JohnO: Your thought would be reasonable if the only felons of note were robbers, rapists, murderers, etc. But we have hundred of thousands of people convicted of felonies such as consuming drugs, offering or purchasing sex for payment or facilitating such transactions, or consensual sex between teenagers

I don't think Wendy Whitaker or Genarlow Wilson should be barred from owning firearms: from Reason magazine's blog,

"Wendy Whitaker, 29, has been on Georgia's sex offender list for more than 12 years. Her crime? She performed oral sex on a high school classmate just after turning 17. The boy was just shy of his 16th birthday. Both were sophomores. Whitaker is now suing, claiming that given her crime, her sex offender status is cruel and unusual punishment.

After the international uproar associated with the Genarlow Wilson case (Wilson, you'll remember, was convicted of a similar crime—having consensual oral sex with a 15-year-old while he was 17), Georgia's legislature clarified state law to prevent these sorts of cases—what Whitaker did 12 years ago is no longer a crime in Georgia. But because some Georgia lawmakers stubbornly wanted to keep Wilson in jail, the legislature took a separate vote to keep the law from applying retroactively. Wilson and Whitaker are still convicted felons."

As to Sean M, I'm sure you feel quite confident, when hooded men with guns break into your home at 3AM, that your possession of a knife, nunchucks, and your wits is sufficient. But most people would like a gun. That might be particularly true of people who are known, as a matter of public record, to not be allowed to legally possess them.

I suspect, as a non-lawyer, one of the occupational hazards lawyers face is getting too caught up in the intricacies of an argument. This is just wrong, people. It's rather obvious common sense. If you live in a country where more and more peaceful actions are felonies, it becomes less and less reasonable to prevent felons from keeping and bearing arms.
11.24.2008 12:48pm
cboldt (mail):
-- does mere possession of a controlled substance qualify (combined with possession of a firearm) provide sufficient evidence of a (g)(3) --
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Possession coupled with a forensic evidence would be plenty adequate to show present "use." Testimonial evidence might be sufficient, as something more than possession to indicate use. E.g., "smelled like smoked pot" might be enough. As for "proof" via forensic evidence, THC shows in the hair for months.
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A couple of pages from the US Attorneys Criminal Resource Manual:
Firearms Charges
Department Memorandum -- Prosecutions under 922(g)
11.24.2008 1:02pm
Oren:
cboltd, as I understood it, THC use from months ago does not disqualify present gun ownership unless that use is continuous. So, while "smelled like pot" might qualify but THC traces in the hair do not (at least in my ignorance) suffice to show current drug use.

Of course, if the gun was possessed for a year and the THC traces show use within the past 3 months, that's surely beyond a reasonable doubt.
11.24.2008 1:36pm
cboldt (mail):
-- THC use from months ago does not disqualify present gun ownership unless that use is continuous. --
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Bear in mind that I was responding to a question where "mere [current] possession" of a controlled substance was a given assumption.
11.24.2008 1:52pm
Fub:
Obvious wrote at 11.24.2008 12:48pm:
I suspect, as a non-lawyer, one of the occupational hazards lawyers face is getting too caught up in the intricacies of an argument. This is just wrong, people. It's rather obvious common sense. If you live in a country where more and more peaceful actions are felonies, it becomes less and less reasonable to prevent felons from keeping and bearing arms.
Agreed. Unfortunately legislators don't really care about what is reasonable, nor do they have to care. On "hot button" issues such as felons and firearms, being reasonable is almost a guaranteed way to lose an election.
11.24.2008 2:44pm
bobby b (mail):
"Is there data on violent behavior among those high on marijuana? The ones I've known have trouble getting motivated to stand up."
- - - -

The obvious concern has to do with happening upon an armed and intoxicated pot smoker while you are carrying Hostess Twinkees, Oreos, Beernuts, etc.

Clear and present danger, without question.
11.24.2008 3:42pm
Oren:


Bear in mind that I was responding to a question where "mere [current] possession" of a controlled substance was a given assumption.

Yes, that was unclear. On the other hand, both of the links you sent me and all my research is still wanting in determining the burden on the prosecution to prove current that an individual is a current user/addict.
11.24.2008 5:54pm
cboldt (mail):
-- both of the links you sent me and all my research is still wanting in determining the burden on the prosecution to prove current that an individual is a current user/addict. --
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Perhaps because the fact that the burden is on the prosecution (to produce evidence, to prove all elements of a charge to the relevant standard) is axiomatic. If the charge and/or proof is missing an element, the case is not made.
11.24.2008 6:13pm
cboldt (mail):
As to what constitutes "enough evidence," put yourself in the mind of a juror, trying to discern if the evidence supports a conclusion that the perp is a current user. In possession, plus what is enough to convince you beyond a reasonable doubt? That's the answer for sufficiency of evidence.
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I figure possession plus forensic evidence of a pattern of use is sufficient to find "current" use. It would be sufficient to convince me.
11.24.2008 6:17pm
elscorcho (mail):
What other rights can we take away from people who use banned substances? Maybe we should ban them from voting. Or take away their free speech. There is inherent danger anytime an unqualified person exercises their rights.
11.24.2008 6:45pm
Dave Hardy (mail) (www):
Lots of the prohibited person categories in the Gun Control Act got in by near-happenstance. If I remember the leg history correctly--

"All felonies" got in because no one could agree on what was a proper, seriously felony ("Al Capone only got nailed on tax evasion"). The solution was to let ATF give exemptions via relief for disability. Until Violence Policy Center went on a media offensive about that ("federal money being used to let felons have guns") and got budget riders forbidding it.

Servicemen given a dishonorable discharge got on because (1) it turned out Lee Harvey Oswald would not have been prohibited, and a legislator (incorrectly) thought he'd gotten a dishonorable, and (2) someone argued that if a person wasn't fit to bear arms for their country, they shouldn't be fit to have them now.

Persons who have given up their citizenship got on the list because some legislator didn't like them and figured they ought to be listed. There are probably a dozen still alive who meet this standard, and they're too old to do much in the way of violent crime.
11.24.2008 9:32pm
zippypinhead:
"All felonies" got in because no one could agree on what was a proper, seriously felony...

Here's an interesting tidbit: §922(g)(1) actually does NOT encompass every felony. §921(a)(20) expressly exempts Federal or state offenses "pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices," as well as 2-year sentence state "misdemeanors," and most other convictions that have been expunged, pardoned, or had the defendant's civil rights restored (the last subcategory currently being a null set in the Federal system, as Dave Hardy points out above).

The antitrust/business practices exemption is especially interesting, since the maximum sentence for criminal Sherman Act violations is currently 10 years imprisonment, double the max sentence for general Federal Class E felonies.

It might be interesting to see what the legislative history suggests were the policy reasons behind the antitrust/business practices exemption. Perhaps one way of addressing the issue of the 922(g)(1) prohibition being overbroad would be to legislatively expand the 921(a)(20) exemption to broader categories of non-violent offenses that raise (or lack) the same considerations as antitrust/business practices offenses?

...although in the likely 2009 legislative environment, I suspect that would be a real long shot (no pun intended).
11.24.2008 10:55pm
Oren:

As to what constitutes "enough evidence," put yourself in the mind of a juror, trying to discern if the evidence supports a conclusion that the perp is a current user. In possession, plus what is enough to convince you beyond a reasonable doubt? That's the answer for sufficiency of evidence.

I would require nothing less than concrete evidence that the defendant did, in fact, use (not merely possess) the substance in question after he came into possession of the firearm.
11.24.2008 11:10pm
juris_imprudent (mail):
Talk about bad cases making bad law.

Gura &co. work to find a good case, and every stupid SOB with his tit in a wringer tries to piggyback, and pollutes all the good work.

I know, I know, zealous defense and all that, but JEEZ people, enough with trying to worm the losers out of their own stupidity (a la the Darwin comment above).
11.25.2008 1:27am
Philip F. Lee (mail) (www):
It is ironic that the judge rejects "An in-depth analysis . . . concerning . . . strict constitutional scrutiny" by citing Breyer's dissent in Heller. When did precedent become established by the dissents?

And, the judge's assertion that the Heller dicta, establishing a list of disqualifications (felons and the mentally ill . . .) presumptively constitutional, forever precludes a need for applying "strict scrutiny" in other cases since "constitutionality under a strict scrutiny standard would be far from clear" in the Heller list.

If the Heller dicta list of disqualifications means anything, it should be that the ones listed should not be presumed to be unconstitutional under the Heller decision, not that some other (not on the list) disqualifications should be presumed to not needing a strict scrutiny test.

This judge's opinion is just overreaching -- even for a bad case involving a bad guy.
11.25.2008 9:10am