The Twin Crusades Against Drugs and Guns

I filled in the part you ignored because it's the genesis of this thread.

Did you actually do what the court did and consider Sonzinsky and the Harrison Narcotic Act precedents?

I'm guessing no, so spoiler alert. If you do, you will discover that the stupid drug war precedents have been eroding our freedoms for a very long time and the precedents have entangled the twin crusades in a gruesome embrace for a hundred years.

Before the commerce power was stretched beyond all recognition, the power to tax was used for power grabs. That's what the Harrison Act was. That's what the National Firearms Act was. That's what the Marihuana Tax Act of 1937 was.

It means the same thing to me as it has for a long time: our various prohibition programs are stupid.
Regardless of your opinion, the case says what it says, not what you want it to say.

Lots of stupid laws are on the books. HTFU.
 

jocal505

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Dogballs, you are stuck on this one. On record, on OCD, for a few years on this one...and yet it is none of your damn business. But that's not the only problem.


Your loud, obstructive, monotonous, and sustained butthurt here is a never-ending admission that this AW does not belong in circulation, for one thing.

Thirdly, it's an interesting intrusion, on a people-type guy, eh? Is freedom selective to you, is it just a prop? Is freedom just a tool for trolling for Tom?

Fourth: coercion. This @badlatitude supergun imposition is relentless...and hypocritical, to the core. Like a regal, or like a two-bit high school bully, you are openly denying the rightful property of another person (um, a gun lo less) to that person.

Dogballs, why was your learning curve entirely flat in 2022? You get to try again, in public, this year, which is one of the reasons I love this place.

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Pertinacious Tom

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This @badlatitude supergun imposition is relentless...and hypocritical, to the core. Like a regal, and like a two-bit high school bully, you are openly denying the rightful property of another person (um, a gun lo less) to that person.
Yeah, I should apologize about that.

Sorry, @badlatitude for taking your gun away by pointing out that the gungrabby chorus here wants you to sell it again.

Or was that buyingback your gun? Either way, sorry.
 

Pertinacious Tom

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I solved the gun crime problem last night while I was watching a spider crawl across my ceiling.
Any crime involving a gun, whether fired or not, mandatory life sentence. Got a speeding ticket with a gun on the seat next to you? Life in jail.
This is the kind of stupidity that even Joe Biden now regrets from his career in the stupid drug war.

One of the many reasons it's stupid is that it just didn't, doesn't, and won't work.
 

Pertinacious Tom

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Jesus Perez-Garcia Found the Twin Crusades' Intersection

On June 14, 2022, Jesus Perez-Garcia, was arrested as a passenger in a car crossing the Mexican border into the United States. A significant quantity of Illegal drugs was found in the vehicle’s bumper. Jesus claimed he did not know about the drugs being there. The driver of the vehicle, Antonio, supported Jesus’ claim, saying he took full responsibility for the drugs in the vehicle. Jesus admitted the driver told him he was going to get drugs but says he thought the drugs would be for personal use in Mexico.

Jesus has no criminal history. He worked in California as a security guard and is a U.S. citizen. He pled not guilty and was released on bond on June 30. The conditions of bail were not disclosed at the hearing.

Later, Jesus learned one of the conditions of the bond was that he be disarmed.

This meant he could not work as an armed security guard or protect his family. After learning of the no firearms condition, Jesus appealed the bail condition on July 29, 2022. The District Judge, Gonzalo P. Curiel, held the bail condition of no firearms did not violate rights protected by the Second Amendment because there was historical precedent in 19th-century surety statutes, which required a bond for people who were accused of violent intent, for them to carry firearms in public. Judge Curiel found the surety statutes to be close enough fit for purposes of release on bond. Jesus has appealed the District court ruling to the Ninth Circuit.

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The Ninth Circuit Federal Public and Community Defenders filed an amicus brief supporting Jesus. From the amicus brief in USA v Jesus Perez Garcia:

II. The district court’s affirmance of the no-firearms condition violated this Court’s precedents requiring conditions that infringe upon significant constitutional liberty interests to be justified by on-the-record, evidence-based findings of necessity.



Here, notwithstanding these principles, the magistrate judge disarmed Mr. Perez-Garcia without making any findings at all. Mem. Ex. C at 25. Unfortunately, this is the norm in this Circuit. Mr. Perez-Garcia has shown that, in the Southern District of California, the Second Amendment right is stripped from pretrial releasees virtually across the board. Mem. Ex. C at 28–72. An informal survey of amici’s offices confirms that the same practices are in effect across the Circuit. Pretrial releasees are routinely disarmed—generally with no discussion and no explanation of why their disarmament qualifies as the “least restrictive” measure necessary to reasonably assure their appearance at trial or the safety of the 11 community. 18 U.S.C. § 3142(c)(1)(B). And this practice is largely impervious to the type of charge, affecting even those accused of the least violent—and least weapons-related—offenses imaginable. See, e.g., United States v. Lopez, No. 21-cr -69 (D. Mont.) (Doc. 11 at 2) (bookkeeper charged with embezzlement);United States v. Mosmiller, No. 21-cr -84 (D. Mont.) (Doc. 13 at 2) (pharmacy technician charged with purloining hydrocodone pills); United States v. Uziewe, No. 20-cr -196 (E.D. Cal.) (Doc. 20 at 1) (owner of Christian bookstore charged with bank fraud).
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None of those crimes seem to presage violence and Mr. Perez-Garcia also seems unlikely to commit a violent crime, but it's enough that he's accused of a serious drug crime. Because ZERO TOLERANCE. No one says it that much any more, but it's still very much here.
 

Pertinacious Tom

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Ban on marijuana users owning guns is unconstitutional, U.S. judge rules

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Wyrick said that while the government can protect the public from dangerous people possessing guns, it could not argue Jared Harrison's "mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm."

He said using marijuana was "not in and of itself a violent, forceful, or threatening act," and noted that Oklahoma is one of a number of states where the drug, still illegal under federal law, can be legally bought for medical uses.

"The mere use of marijuana carries none of the characteristics that the Nation's history and tradition of firearms regulation supports," Wyrick wrote.
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Obviously the judge never saw Reefer Madness.
 

Pertinacious Tom

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A Federal Judge Says the Ban on Gun Possession by Cannabis Consumers Is Unconstitutional

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The government argued that Harrison's marijuana use excluded him from "the people," a category it said was limited to "law-abiding citizens." But in the landmark 2008 case District of Columbia v. Heller, Wyrick notes, the Supreme Court rejected that narrow reading of "the people." The Court said the phrase "unambiguously refers to all members of the political community, not an unspecified subset."


Based on that understanding, the Court said last year in Bruen, there is a "strong presumption" that the right to carry handguns in public for self-defense "belongs to all Americans."
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And maybe even illegal immigrants, but that's another thread.

And why does cannabis use mean that a person is not part of "the people?"

Because it's a felony!

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Wyrick's take is similar. "History and tradition support disarming persons who have demonstrated their dangerousness through past violent, forceful, or threatening conduct," he says. "There is no historical tradition of disarming a person solely based on that person having engaged in felonious conduct."


Such a policy, Wyrick warns, would be an open-ended license to deprive people of their Second Amendment rights. "A legislature could circumvent the Second Amendment by deeming every crime, no matter how minor, a felony, so as to deprive as many of its citizens of their right to possess a firearm as possible," he writes. "Imagine a world where the State of New York, to end-run the adverse judgment it received in Bruen, could make mowing one's lawn a felony so that it could then strip all its newly deemed 'felons' of their right to possess a firearm."
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That's ridiculous, of course. No one would say that lawn mowing could be a felony that justifies deprivation of rights, would they?

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Wyrick posed that very hypothetical to the government's lawyers. "Remarkably," he says, "when presented with this lawn-mowing hypothetical argument, and asked if such an approach would be consistent with the Second Amendment, the United States said 'yes.' So, in the federal government's view, a state or the federal government could deem anything at all a felony and then strip those convicted of that felony—no matter how innocuous the conduct—of their fundamental right to possess a firearm."
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OK. Mark me "sorry I asked." I forgot that absolutely anything goes. Indoor militias, the bill of rights not applying to modern tech, Trump's abuse of power being OK, battlefield .22's, and now felonious lawn mowing. Nothing can go too far for grabbers.
 

Pertinacious Tom

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The felonious lawn mowing thing was a hypothetical question.

Not hypothetical: drug warriors still dominate the legal landscape, starting at the top. Hence the claim that using cannabis makes a person a dangerous lunatic and signals a lack of the "virtue" supposedly required by the second amendment but not any others.

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In addition to arguing that illegal drug users are guilty of felonies even if they have never been convicted, the government compared them to "dangerous lunatics" whose liberty can be curtailed to protect public safety. "The mere use of marijuana does not indicate that someone is in fact dangerous, let alone analogous to a 'dangerous lunatic,'" Wyrick notes. "There are likely nearly 400,000 Oklahomans who use marijuana under state-law authorization. Lumping all those persons into a category with 'dangerous lunatics,' as the United States' theory requires, is a bridge too far."

Wyrick was similarly unimpressed by the government's argument that "drug
users, like the mentally ill, 'have difficulty exercising self-control, making it dangerous for them to possess deadly firearms.'" That argument "appears to have no limit," he notes. "The Diagnostic and Statistical Manual of Mental Disorders, for example, lists autism, attention deficit disorder, and nicotine dependence as mental disorders. All those groups 'have difficulty exercising self-control,' and yet, it is hard to see how any of those groups could be categorically prohibited from the right to armed self-defense on that basis."

Wyrick likewise rejected the government's argument that people deserve the right to armed self-defense only if they are "virtuous," which marijuana users supposedly are not. He says the claim that the Second Amendment includes a "vague 'virtue' requirement'" is "belied by the historical record" and "inconsistent with Heller."

Nor was Wyrick persuaded by the argument that legislators may restrict gun rights to people they deem "trustworthy," a principle that the government supported by citing early bans on firearm possession by slaves, Catholics, loyalists, and Native Americans. Wyrick, who describes the government's reliance on those "ignominious historical restrictions" as "concerning," rejects the idea that such exceptions were incorporated into the Second Amendment.
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I still believe that it was probably OK to trust even Hunter Biden with a gun, but I do share the ACLU's tolerance for arming the mentally ill.
 

Pertinacious Tom

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A true crusader never quits.

'America Has Lost the War on Drugs,' The New York Times Says, but Should Keep Fighting It Anyway

In 2014, more than a century after The New York Times began warning readers about the insanity-inducing, violence-provoking properties of "a harmless-looking plant" known as "marihuana," the paper published an editorial endorsing legalization of a drug it had once blamed for causing madness, mayhem, and murder. That reversal happened 18 years after California became the first state to legalize medical use of cannabis, two years after Colorado and Washington became the first states to legalize recreational use, and a year after Gallup reported that most Americans already favored repealing pot prohibition.


The Gray Lady's cannabis conversion followed decades of hemming and hawing, during which the Times first toyed with the idea of "legalizing or at least decriminalizing marijuana" and then cheered on the Clinton administration as it threatened to punish doctors for recommending marijuana as a medicine. Today's editorial urging the replacement of the war on drugs with "something more humane or more effective" is similarly belated and confused.

"America Has Lost the War on Drugs," the headline says. "Here's What Needs to Happen Next." What follows is a mixture of sensible suggestions and dangerously misguided thinking.

Since the essence of the war on drugs is the use of force and violence to stop people from consuming psychoactive substances that politicians do not like, you might think that ending the war on drugs would entail desisting from that unjust, harmful, and manifestly ineffective crusade. But if you think that, you clearly are not a New York Times editorial writer.


"Criminal justice still has a role to play in tackling addiction and overdose," the Times says. Why? Because "the harm done by drugs extends far beyond the people who use them, and addictive substances—including legal ones like alcohol—have always contributed to crime." The Times thus concedes that the problems posed by illegal drugs are fundamentally similar to the the problems posed by alcohol, which the government addresses without prohibiting the manufacture, sale, and possession of booze. Might that approach be extended to other drugs?

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But even if the federal government treated crack the same as cocaine powder, it would still be arresting, prosecuting, and incarcerating people for supplying it. The Times says nothing about that policy, which includes a five-year mandatory minimum sentence for offenses involving 500 grams or more of cocaine and a 10-year mandatory minimum that kicks in at five kilograms. Defendants with one prior drug felony conviction receive a 20-year mandatory minimum, and two prior convictions trigger a life sentence.


Drug defendants who own guns, whether or not they use them to threaten or harm anyone, are committing another felony, punishable by an additional five-year mandatory minimum for a first offense. That penalty rises to 25 years for subsequent offenses.


This is what the war on drugs does: It locks people in cages for years, decades, or life based on conduct that violates no one's rights. But in an editorial that is ostensibly opposed to the war on drugs, the Times finds no room to even mention this reality.

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The Times also wants the government to expand funding for research and drug treatment, make it easier for doctors to provide "medication-assisted treatment" by prescribing buprenorphine, and "address root causes" through increased spending on social welfare programs. But the one root cause the Times conspicuously does not address is the war on drugs itself, which is supposedly the subject of the editorial.

That omission has practical as well as moral implications. "Drug use is soaring," the Times says. "More Americans are dying of overdoses than at any point in modern history." According to federal survey data, "drug use" is not soaring. But drug-related deaths have climbed dramatically in recent years, and prohibition plays a key role in that problem.

Prohibition makes drug use more dangerous by creating black markets in which quality and potency are highly variable and unpredictable. Prohibition also drives traffickers toward more-potent products, which are easier to smuggle. The recent rise in opioid-related deaths illustrates both of those phenomena.

When the government cracked down on pain medication, nonmedical users replaced legally produced, reliably dosed pharmaceuticals with black-market drugs of uncertain provenance and composition. That hazard was magnified by the emergence of cheaper and stronger fentanyl as a heroin booster and substitute, which made potency even harder to predict. After the government succeeded in reducing opioid prescriptions, the upward trend in drug-related deaths did not slow or reverse direction; it accelerated. Nowadays fentanyl is turning up not only in heroin and ersatz pain pills but also in drugs such as cocaine and methamphetamine.

Although the Times is concerned about record drug-related deaths, it does not pause to consider how this situation came about or how it could be avoided. To the contrary, the paper's editorialists endorse continued criminalization of drugs without giving a moment's thought to the lethal consequences.

The mandatory minimums and firearms enhancements ensure that we'll keep locking "people in cages for years, decades, or life based on conduct that violates no one's rights." The Times and most drug warriors are not ready to admit it, but legalization is going to have to involve not just possession and use but supplying recreational drugs that are extremely dangerous. I mean ones other than alcohol.
 

Pertinacious Tom

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The twin crusades intersected tragically in the killing of Philando Castile. There's an old thread about it.

The Drug Exception to the Second Amendment

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When Yanez pulled Castile over, violating that ban was punishable by up to 10 years in prison. The Bipartisan Safer Communities Act of 2022 increased the maximum penalty to 15 years. That law also created a new offense, "trafficking in firearms," which it defined broadly enough to include marijuana users who buy guns. That crime is likewise punishable by up to 15 years in prison. Gun buyers who falsely deny marijuana use when they fill out the form required for firearm purchases from federally licensed dealers are guilty of yet another felony, punishable by up to 10 years in prison.


Despite those stiff penalties, the original rationale for banning gun ownership by illegal drug users was hazy, relying on the assumption that no one who consumes marijuana or other prohibited intoxicants can be trusted with a firearm. The Senate report on the legislation that would become the Gun Control Act, for instance, mentioned "narcotic addicts," along with unsupervised "juveniles," "mental defectives," and "armed groups who would supplant duly constituted public authorities," as a category of people "whose possession of firearms" is "contrary to the public interest."

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In her lawsuit, Fried called that claim, at least as applied to cannabis consumers, "obsolete and without scientific support." She noted a 2013 study commissioned by the Office of National Drug Control Policy that found "marijuana use does not induce violent crime." The Biden administration, in any event, did not assert a link between marijuana use and violence. It instead argued that the law Fried challenged was consistent with longstanding historical precedent.


The implausibility of that argument was compounded by the fact that the "crime" of consuming marijuana or other currently prohibited drugs did not exist when the Second Amendment was ratified in 1791. Nor did it exist when the 14th Amendment, which made the Second Amendment applicable to state and local governments, was ratified in 1868. During the 19th century, cannabis, opium, morphine, and cocaine were legally available over the counter and widely consumed as ingredients in patent medicines. It seems unlikely that Americans of that era would have thought eschewing such products should be a condition for exercising the rights protected by the Second Amendment and similar provisions of state constitutions.

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LaPierre's enthusiasm for waging the war on drugs and enforcing the gun restrictions it has spawned is hard to reconcile with his avowed concern for civil liberties. In that 2018 speech, he warned that overweening government threatens due process, privacy, "personal liberty," and freedom of speech. "Some people out there think the NRA should just stick to its Second Amendment agenda and not talk about all of our freedoms," he said. "But real freedom requires protection of all of our rights. And a Second Amendment isn't worth its own words in a country where all of our other individual freedoms are destroyed."

Because it dictates which psychoactive substances people may consume, drug prohibition is a direct assault on "personal liberty." It has steadily eroded privacy by inviting the Supreme Court to whittle away at the Fourth Amendment's protection against unreasonable searches and seizures. It is also the main justification for civil asset forfeiture, a system of legalized larceny that makes a mockery of due process. So much for defending "all of our freedoms."

In a 1995 letter to NRA members, LaPierre warned that the federal "assault weapon" ban enacted the previous year "gives jack-booted government thugs more power to take away our constitutional rights, break in our doors, seize our guns, destroy our property, and even injure or kill us." The same could be said of the drug laws that LaPierre thinks should be vigorously enforced. Criminalizing possession of certain psychoactive substances, like criminalizing possession of certain firearms or firearm accessories, invites armed agents of the state to "break in our doors, seize our guns, destroy our property, and even injure or kill us."

When Louisville police killed 26-year-old Breonna Taylor in 2020, for example, drug prohibition was the pretext for invading her home in the middle of the night. She died in a hail of bullets because her boyfriend, Kenneth Walker, fired a shot at the cops, whom he mistook for criminal intruders. Walker, who was exercising what the Supreme Court has called the "core" Second Amendment right to "use arms in defense of hearth and home," initially faced an attempted murder charge, which prosecutors dropped two months later.

In a video on his YouTube channel, Noir said the deadly raid "should terrify every gun owner." As in the Castile case, critics faulted the NRA for not speaking up.

The NRA's selective concern about the dangers posed by "jack-booted government thugs" reflects a broader tendency among conservatives. President Ronald Reagan was a vocal supporter of gun rights during his two terms in office, when he was equally vocal in supporting the war on drugs.

Addressing the NRA's national members banquet in 1983, Reagan hailed the defeat of a 1982 California ballot initiative that would have required registration of handguns. Had it passed, he said, police would have been "so busy arresting handgun owners that they would be unable to protect the people against criminals." He acknowledged the "nasty truth" that "those who seek to inflict harm are not fazed by gun control laws" and called for "reform" of "firearms laws which needlessly interfere with the rights of legitimate gun owners."

In the same speech, Reagan touted his determination to "cripple the drug pushers" through mandatory minimum sentences, "firm and speedy application of penalties," and abolition of federal parole. And although he said "we will never disarm any American who seeks to protect his or her family from fear and harm," that was plainly not true, since the drug laws he was keen to enforce underlie a policy that denies millions of Americans the right to armed self-defense even when they have no history of violence.

Reagan saw no contradiction between those two positions, and the same is true of many Republican politicians today. Legislators who receive high grades from the NRA, signifying opposition to gun control, are often enthusiastic about drug control. Sen. Tom Cotton (R–Ark.), for example, is an NRA member with an "A" rating from the organization. He is also one of the most gung-ho drug warriors in Washington, opposing even modest sentencing reforms. And Cotton is so committed to the ban on gun possession by "prohibited persons" that he has proposed a five-year mandatory minimum sentence for violating it.
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The NRA still hasn't said anything about Nikki Fried's lawsuit, so the Reagan-era pattern continues.
 

Pertinacious Tom

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Biden's DOJ is appealing that ruling.

President Joe Biden thinks it is unfair that people convicted of simple marijuana possession face lingering consequences for doing something that he says should not be treated as a crime. Biden cited those burdens last October, when he announced a mass pardon of low-level federal marijuana offenders, which he said would help "thousands of people who were previously convicted of simple possession" and "who may be denied employment, housing, or educational opportunities as a result." Yet the Biden administration, which recently began accepting applications for pardon certificates aimed at ameliorating those consequences after dragging its feet for five months, is actively defending another blatantly unjust disability associated with cannabis consumption: the loss of Second Amendment rights.

Under federal law, it is a felony, punishable by up to 15 years in prison, for an "unlawful user" of a "controlled substance" to possess firearms. The ban applies to all cannabis consumers, even if they live in one of the 37 states that have legalized medical or recreational use. That disability, a federal judge in Oklahoma ruled last month, is not "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. The Justice Department recently filed a notice indicating that it intends to appeal the decision against the gun ban for marijuana users.

The Biden administration's defense of the ban relies on empirically and historically dubious assertions about the sort of people who deserve to exercise the constitutional right to keep and bear arms. Among other things, the Justice Department argues that "the people" covered by the Second Amendment do not include Americans who break the law, no matter how trivial the offense. It also argues that marijuana users are ipso facto untrustworthy and unvirtuous, which it says makes them ineligible for gun rights.
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It's synergy in government when two idiotic prohibitions reinforce each other. As a bonus, they can then give added excuses for more drug war looting! It's a nanny state win-win!
 

Pertinacious Tom

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The DOJ Says Forbidding Pot Users To Own Guns Is Like Telling People Not To Carry Guns When They're Drunk

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.


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.

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The Biden administration thinks the 11th Circuit (and the 10th) should defer to "Congress's judgment that marijuana is a controlled substance the users of which cannot responsibly possess firearms." When Congress passed the Gun Control Act in 1968, the DOJ says, it was worried about the "ready availability" of guns to "narcotic addicts," "criminals," and "others whose possession of firearms is similarly contrary to the public interest." Legislators also mentioned "juveniles," "mental defectives," and "armed groups who would supplant duly constituted public authorities."

According to the Biden administration, it was perfectly reasonable to put cannabis consumers in the same category as "narcotic addicts," "criminals," children, armed revolutionaries, and "mental defectives." The DOJ explicitly compares marijuana users to "the mentally ill," saying both can be "dangerous when armed." The government approvingly quotes a 2016 decision in which the U.S. Court of Appeals for the 9th Circuit averred that illegal drug users, "like those with mental illnesses," are apt to "experience or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior."

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.
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How would the argument being put forth by our government look any different if we had a TeamR-run DOJ?

It wouldn't, of course. The stupid drug war remains an area of blessed bipartisan unity.
 
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