Every state prohibits driving while intoxicated, recognizing that alcohol use impairs the ability to safely operate a motor vehicle and increases the risk of potentially lethal accidents. Using a cellphone also impairs the ability to safely operate a motor vehicle and increases the risk of potentially lethal accidents. It therefore makes sense to prohibit cellphone users from owning cars.
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That faulty syllogism bears more than a passing resemblance to the Biden administration’s defense of the federal law that makes it a felony for cannabis consumers to possess firearms. That law, the U.S. Department of Justice (DOJ) argues in an appeal brief filed last week, is “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test established by the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. To make its case, the government cites laws passed in the 17th, 18th, and 19th centuries that prohibited people from carrying or firing guns while intoxicated, which it implausibly argues are analogous to the gun ban for marijuana users that Congress imposed in 1968.
The DOJ is asking the U.S. Court of Appeals for the 11th Circuit to uphold a 2022 decision in which Allen Winsor, a federal judge in Florida, dismissed a Second Amendment challenge to that gun ban by state-authorized medical marijuana patients. In the 10th Circuit, meanwhile, the Biden administration is appealing a contrary 2023 ruling by Patrick Wyrick, a federal judge in Oklahoma who concluded that the law, 18 USC 922(g)(3), is unconstitutional.
The government’s 11th Circuit brief wisely eschews the DOJ’s earlier reliance on what Wyrick called “ignominious historical restrictions” that disarmed slaves, Catholics, loyalists, and Native Americans. Those precedents, the government had argued, showed that legislators have the authority to withhold gun rights from any group they deem “untrustworthy.” But the DOJ is still arguing that “the people” protected by the Second Amendment are limited to “law-abiding, responsible citizens,” a category that it says does not include cannabis consumers or anyone else who breaks the law, no matter how trivial the offense.
That claim seems inconsistent with President Joe Biden’s position that marijuana use should not be treated as a crime. But the meat of the Justice Department’s argument is the claim that early laws targeting drunken gun handlers establish a “historical tradition” that justifies threatening cannabis consumers with up to 15 years in prison if they dare to exercise their Second Amendment rights. That argument glosses over crucial details that show these “historical analogues” were fundamentally different from the law that the Biden administration is defending. …
The DOJ also quotes a 1946 history noting that “at the founding ‘those afflicted with mental diseases were generally treated as though they had been stripped of all… their rights and privileges.’” In the 18th century, the government adds, quoting a 2009 law review article, “justices of the peace were authorized to ‘lock up’ ‘lunatics’ who were ‘dangerous to be permitted to go abroad.’” Evidently, marijuana users should be thankful that they have been stripped only of their Second Amendment rights and not all of their other “rights and privileges,” including the right to be free of arbitrary and indefinite imprisonment.
The constitutional question is not whether this attitude makes sense. It manifestly does not, as Biden himself should be willing to concede, since he decries the injustice of criminalizing marijuana use. The constitutional question, as framed by the Supreme Court in Bruen, is whether the policy based on that attitude is “consistent with this Nation’s historical tradition of firearm regulation.” If these are the best “historical analogues” the government can come up with, the answer seems clear.
— Jacob Sullum in The DOJ Says Forbidding Pot Users to Own Guns Is Like Telling People Not to Carry Guns When They’re Drunk