The Federal Prohibitor and Unlawful Drug Users

I’m reading a draft of a fantastic forthcoming article by Dru Stevenson on the how federal drug law operates as what he calls one of the primary forms of gun control today. Under federal law anyone “who is an unlawful user of or addicted to any controlled substance” is forbidden from possessing firearms. So those active users are barred, whether they have any conviction or not. And, of course, the felon prohibitor in 18 U.S.C. § 922(g)(1) bars anyone who has ever had a felony drug conviction from ever again possessing firearms. We are fortunate that Dru will be blogging on his own article, but in this short post, I wanted to just highlight a few things that stood out to me from his article and the broader debate over guns and drugs (also the name of a great article by Benjamin Levin).

Consider first the breadth of the federal prohibition. An “unlawful user” or someone “addicted to” a controlled substance covers a heck of a lot of people. Under ATF regulations, this includes “any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.” Current use is the touchstone in the ATF definition and under those regulations “[a]n inference of current use may be drawn from evidence” of relevantly recent use, including from at least three different exemplary types of evidence: (1) a conviction for use or possession of a controlled substance within the past year; (2) multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; (3) or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.

There’s been a good deal of attention placed on a particularly difficult issue with the federal prohibitor, including in Dru’s excellent paper: users of medical marijuana in states where such use is lawful and regulated. That’s certainly an area for concern. But there are many other types of use of controlled substances other than as directed by a physician that ought not to raise concerns about (1) a person’s judgment, willingness to follow the law, or pro-social behavior, or (2) ability to safely handle firearms. Take Xanax, a Schedule IV drug. Suppose you’re facing some particularly stressful days ahead at work and you decide to take 0.5 mg of your Xanax for the next week even though your doctor prescribed only 0.25 mg. You’re now an unlawful user of a controlled substance. Or consider Robitussin AC, a Schedule V controlled substance. Say your doctor prescribes 5 ml each night before bed to treat your bad cough caused by a tough bout with the common cold. But you are really feeling crummy and decide to take 7.5 ml for the next week instead. In both of these situations, you have committed a crime if you happen to have a gun in the house while you take the medicine. And not just any crime, but a felony punishable by 10 years in federal prison, so long as your actions are “knowing.”

To be sure, the Supreme Court last term held that “knowingly” here means that you knew both that you possessed the firearm and that your actions violated the elements of the prohibition (in that case, whether an individual was lawfully present in the United States); that might mitigate some concerns from the language of the statute, because the people in my examples might not know they “belonged to the relevant category of persons barred from possessing firearms.” On the other hand, gun owners are typically much more familiar with gun laws than the general public, and thus might know that misusing prescriptions counts as disqualifying. As to them, at least, the prospect is 10 years in prison.