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Firearm Policy and Alcohol Abuse

By on February 26, 2020 Categories: , ,

In my forthcoming article, The Complex Interplay Between the Controlled Substances Act and the Gun Control Act, I focus on 18 U.S.C. §922(g)(3), which in its current form incorporates the Controlled Substances Act (CSA) by reference and thereby prohibits violators of the CSA from possessing a firearm. This statutory intersection currently results in more than 14,200 individuals per year failing a background check for gun purchases, and around two hundred prosecutions per year for possession of guns by drug users as the lead charge.  Circuit courts have consistently upheld the constitutionality of §922(g)(3), even in the years after Heller.

Many of the policy reasons for prohibiting users of illegal drugs from owning firearms would seem to apply equally, if not more, to alcohol abuse, but federal law ignores alcohol abuse in its list of prohibiting factors in §922(g).  Alcohol is not a “controlled substance” under federal law, even though there is a federal minimum age requirement, and it is highly regulated by states and localities.  The fact that narcotics are contraband creates a distinction between drug users and alcohol abusers, especially from a political standpoint.  In addition, due to the illegality of controlled substances, illegal drug users may be more likely than alcohol users to interact regularly with violent street gangs, or at least violent dealers, and removing guns from one side of the transaction can lower the risk of disagreements escalating into shootings.

Even so, several prominent experts on firearm policy advocate for adding alcohol abusers to the list of federal prohibited persons, and some states have done this in one form or another (see also here and here and here).  Suicides make up roughly two-thirds of the gun fatalities of every year, and these gun deaths disproportionately involve either a history of alcohol abuse, alcohol abuse at the time of the self-inflicted gunshot wound, or both. Interestingly, some empirical studies also indicate that firearm owners are more likely to abuse alcohol or become alcoholics.  Alcohol-related gun violence is more lethal than car crashes, according to one recent study. We lack a federal regulation even against the use or purchase of firearms while intoxicated. States, therefore, sometimes try to fill this gap by adopting laws to help remove guns from those with a pattern of alcohol abuse, or to prohibit firearm use while intoxicated.

Ohio, for example, prohibits firearm carrying for alcohol users: “No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance,” which apparently applies even if the firearm is unloaded. State v. Weber was a 2019 case involving an as-applied Second Amendment challenge to this statute by a defendant charged with using weapons while intoxicated.  Weber’s wife had reported a domestic dispute to the police, alleging Weber was intoxicated and in possession of a gun, though there was no proof that Weber was intending to use the gun to perpetrate a crime, but only that he was severely intoxicated.  In court, Weber claimed that the statute forces citizens like him to choose between their constitutional right to keep arms at home, and to defend himself and his family against potential (hypothetical) criminal attacks, and alcohol use.  The court rejected this argument because Weber had not, in fact, faced a situation that required him to defend his family.  Then, invoking the famous disclaimer in Heller that the Second Amendment is not an unlimited right, the court concluded that the State has a strong and compelling interest to prevent gun violence, which is closely related to alcohol abuse. The statute was sufficiently tailored to serve the significant government interest of guarding public safety, and it left open ample opportunities to bear and keep arms.

Another way that states fill the gap in federal firearm policy regarding alcohol is to adopt statutes that make repeated alcohol-related offenses (typically DUI or DWI arrests and/or convictions) a felony, which then triggers a felony report to the NICS database, or a state counterpart. The most frequently-applied federal firearm disqualifier, both in terms of gun purchase denials (failed background checks) and prosecutions, is 18 U.S.C. §922(g)(1), which prohibits firearm possession by prohibited persons who have been convicted for a crime punishable by over one year in prison. Some states, such as Pennsylvania, impose a penalty of up to five years imprisonment for multiple convictions of driving under the influence (DUI) at the highest blood alcohol content (BAC). Individuals who receive this penalty thus fall under §922(g)(1), and they are ineligible to purchase or possess a firearm.

Last month, in Holloway v. Attorney General, the Third Circuit upheld the statute’s validity against a Second Amendment challenge, concluding that a DUI is considered a “serious crime.” Holloway was convicted twice for driving under the influence.  The first charge, in 2002, was eventually dismissed under an accelerated rehabilitation program.  For the second charge, in 2005, he entered a guilty plea for violating the Pennsylvania statute.  Eleven years later, Holloway was denied from purchasing a firearm under §922(g)(1).  The Third Circuit acknowledged that there is no bright line rule for determining whether the offense reaches the “serious crime” threshold, but it analyzed several factors such as the legislature’s intent and the degree of punishment.  Note that this decision is consistent in result but different in methodology from some other recent federal district court decisions analyzing disarmament under the same Pennsylvania statute.

Part of what makes the Holloway case significant is that the Third Circuit had previously broken from other federal circuit courts, in Binderup v. Attorney General, in holding that the felon prohibition did violate the Second Amendment, at least as applied in the case, because the felony itself had been a nonviolent crime that received a lenient sentence.  Binderup receives frequent mention in discussions about the Second Amendment and the felon disarmament, due to its unique place among circuit court decisions on this topic.  It is unclear whether Holloway signals a change in direction for the Third Circuit, or if it merely narrows the applicability of the approach in Binderup.