Monday, January 30, 2012

Gun violence and drug use - connection?

US v. Carter:   In this appeal, Benjamin Carter raised the issue of the constitutionality of his conviction under 18 U.S.C. § 922(g)(3), which prohibits persons who currently and unlawfully use or become addicted to any controlled substantive (in this case, marijuana) from possessing a firearm. In an opinion in which the Fourth Circuit informed the government not once, but twice, exactly what evidence it could have but chose not to present in order to win, the Fourth Circuit vacated the conviction, finding that the government failed to make the record to substantiate the fit between disarming drug users and its means of accomplishing this goal.

On appeal, the government contended that unlawful drug users deserve no Second Amendment protections whatsoever. The government bore the burden of showing that the statute’s limited imposition on an individual’s Second Amendment rights (unlike other parts of § 922(g) in which an individual receives a permanent disarmament, the statutory provision in this case only applies to person currently using and/or abusing illegal drugs and only temporarily prohibits their possession of guns: once the drug use ends, gun possession can ostensibly occur), advanced the goal of preventing gun violence. The government staked its success here, not on any academic research or empirical data, but by simply asserting that common sense justified taking guns away from drug users, and that addicts are sufficiently dangerous to require disarming them.

The Fourth Circuit joined its sister circuits in concluding that intermediate scrutiny applies to a review of the enforcement of § 922(g)(3), and any other subsection of § 922(g). Under intermediate scrutiny, the government must establish a reasonable fit between the statute in question and a substantial governmental objective, e.g. ending gun violence associated with drug use. Carter argued that as applied to him, the statute does not substantially further the government’s interest without excessively intruding upon his Second Amendment rights. While the Fourth Circuit did not outright disagree with Carter by concluding that Congress had an important objective for enacting the statute here, it did find that the government did not give the court sufficient evidence to substantiate the fit.

Congrats to the FPD in the southern district of WV for the win!

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