January 23, 2012

Guns and Weed: The Fourth Circuit Remands on the Second Amendment for Marijuana Users


Like many Americans, Benjamin Carter liked to smoke marijuana. He also lived in a bad neighborhood, and worried about being the victim of crime.

Even though 18 U.S.C. § 922(g)(3) says that it is a crime for any person "who is an unlawful user of or addicted to any controlled substance" to possess a firearm, Mr. Carter did just that.

52691_marijuana_plant.jpgWhen the government found out about his guns and his marijuana habit, they charged him violating section 922(g)(3).

He challenged whether section 922(g)(3) can lawfully apply to someone like himself. The district court did not accept his challenge to the statute.

He pled guilty and went to the Fourth Circuit. Today, in United States v. Carter, the Fourth Circuit remanded the case, saying that the government has to do more work to show that it can constitutionally prevent potheads from possessing a gun.

Of course, after the Supreme Court's decision in District of Columbia v. Heller, our right to have a weapon enjoys more protection than it did just a few years ago.

Justice Scalia in Heller did observe that,

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.

Nonetheless, the Supreme Court did interpret the Second Amendment as protecting a person's right to possess a gun.

Mr. Carter argued to the Fourth Circuit that,

Acknowledging that he is a user of marijuana, he contends that he was nonetheless entitled, under the Second Amendment, to purchase the guns for the lawful purpose of protecting himself and his nephew in his home against those who might intrude. And because the right of self-defense in the home is the "central component" of the Second Amendment protection, Heller, 554 U.S. at 599, and is "fundamental" and "necessary to our system of ordered liberty.

For that reason, because his right to have a gun is most protected when he's having the gun to protect his house, Mr. Carter argued he should be able to have the gun, despite his marijuana use. Mr. Carter, though, "challenges the link between marijuana usage and gun violence."

The Fourth Circuit was inclined to go halfway with Mr. Carter. Bemoaning that

[i]n developing its record in this case, the government has chosen not to rely on academic research or other empirical data to demonstrate the connection between drug use and gun violence, even though such evidence is abundantly available

the court of appeals noted that

the government still bears the burden of showing that § 922(g)(3)'s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence. And we conclude that in this case, the record it made is insufficient. Without pointing to any study, empirical data, or legislative findings, it merely argued to the district court that the fit was a matter of common sense.

This appeal to common sense, the Fourth Circuit determined, was not sufficient.

The court remanded so that the government could develop a record in the district court to justify section 922(g)(3).

At bottom, we conclude that Congress had an important objective for enacting § 922(g)(3) to reduce gun violence and that disarming drug users and addicts might reasonably serve that objective. But the burden of demonstrating the fit rests on the government. Because the government did not present sufficient evidence to substantiate the fit, we vacate the judgment and remand the case to allow it to do so and to allow Carter to respond.

One suspects that things won't be much different on remand, but, at least, the Fourth Circuit is taking the Second Amendment seriously.

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