Amicus Curiae Brief — Keith L. Carnes, Petitioner v. United States

No. 22-76

In the Supreme Court of the United States

__________

KEITH L. CARNES,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

__________

Clark M. Neily III

Counsel of Record

Trevor Burrus

Nicole Saad Bembridge

Laura A. Bondank

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

cneily@cato.org

August 25, 2022

i

QUESTION PRESENTED

Federal law prohibits the possession of a firearm or

ammunition by any person who is “an unlawful user of

or addicted to any controlled substance.” 18 U.S.C. §

922(g)(3) (emphasis added).

The question presented is: Whether the government, to establish that the defendant is an “unlawful

user” of a controlled substance, must show the defendant’s regular or habitual drug use, or instead may establish that element based on a single incident of drug

use on the day of arrest.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 5

I. PROHIBITING GUN POSSESSION

BASED ON ONE-TIME UNLAWFUL

DRUG USE IS UNKNOWN IN THE

HISTORY AND TRADITION OF

AMERICAN FIREARM REGULATION .......... 5

II. THE EIGHTH CIRCUIT’S

INTERPRETATION OF SECTION

922(G)(3) IS AHISTORICAL,

UNPOPULAR IN THE CIRCUITS,

AND LEADS TO

UNCONSTITUTIONAL RESULTS ............... 11

III.THIS COURT SHOULD GRANT

CERTIORARI TO CLARIFY WHAT

BRUEN MEANS FOR THE LARGE

NUMBER OF PEOPLE WHO COULD

BE CONSIDERED “UNLAWFUL

USERS” OF CONTROLLED

SUBSTANCES ................................................ 15

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Barrett v. United States, 423 U.S. 212 (1976)........... 12

District of Columbia v. Heller, 554 U.S. 570

(2008) ............................................................ 2, 13, 16

Huddleston v. United States, 415 U.S. 814

(1974) ........................................................................ 5

New York State Rifle & Pistol Ass’n v. Bruen,

142 S. Ct. 2111 (2022) .................................... passim

United States v. Carter, 750 F.3d 462 (4th Cir.

2014) ....................................................................... 15

United States v. Dugan, 657 F.3d 998 (9th

Cir. 2011) .......................................................... 13, 15

United States v. May, 538 Fed. App’x 465 (5th

Cir. 2013) ................................................................ 15

United States v. Seay, 620 F.3d 919 (8th Cir.

2010) ....................................................................... 15

United States v. Yancey, 621 F.3d 681, (7th

Cir. 2010) .......................................................... 12, 15

Wilson v. Lynch, 835 F. 3d 1083 (9th Cir.

2016) ....................................................................... 15

Statutes

1631 Va. Act. 173 ......................................................... 6

18 U.S.C. § 922(g)(3) .................................................... 5

18 U.S.C. § 924(a) ...................................................... 14

1868 Kan. Sess. Laws 353 ........................................... 7

1879 Mo. Laws 224 ...................................................... 7

iv

1881 Nev. Stat. 19........................................................ 9

1896 R.I. Pub. Laws 232 .............................................. 8

1899 S.C. Acts 97 ......................................................... 9

1907 Ariz. Sess. Laws 15 ............................................. 9

1909 Idaho Sess. Laws 6.............................................. 8

Other Authorities

Alex Kreit, Controlled Substances,

Uncontrolled Law, 6 Alb. Gov’t L. Rev. 332

(2013) ........................................................................ 6

Amanda Cargill, What Did the Founding

Fathers Eat and Drink as They Started a

Revolution?, Smithsonian Magazine (July

3, 2018) ................................................................... 11

Ben Ramberg, Prior Involuntary

Institutionalization Does Not Justify a

Lifetime Second Amendment Ban: An

Originalist Approach to 18 U.S.C. §

922(g)(4), 31 Kan. J. L. & Pub. Pol’y 297

(2022) ........................................................................ 6

Dru Stevenson, The Complex Interplay

Between the Controlled Substances Act and

the Gun Control Act, 18 Ohio St. J. Crim. L.

211 (2020) ....................................................... 2, 6, 14

Ira P. Robbins, Guns N’ Ganja: How

Federalism Criminalizes the Lawful Use of

Marijuana, 51 U.C.D.L. Rev. 1783 (2018) ........ 5, 14

Jacob Sullum, Six More States Could Legalize

Recreational Marijuana This Fall, Reason

(Aug. 15, 2022) ....................................................... 14

v

Jeffrey M. Jones, Nearly Half of U.S. Adults

Have Tried Marijuana, Gallup (Aug. 17,

2021) ......................................................................... 3

Mark R. Jones et al., A Brief History of the

Opioid Epidemic & Strategies for Pain

Medicine, 7 Pain & Therapy 13 (2018) .................. 10

Mary B. Bridgeman & Daniel T. Abazia,

Medicinal Cannabis: History,

Pharmacology, & Implications for the Acute

Care Setting, 42 Pharmacy & Therapeutics

180 (2017) ............................................................... 10

Robert J. Spitzer, Guns Across America:

Reconciling Gun Rules and Rights (2015)..... 3, 7, 12

Sarah Herman Peck, Cong. Research Serv.,

R44618, Post-Heller Second Amendment

Jurisprudence (2019) ............................................. 15

State Medical Cannabis Laws, National

Conference of State Legislatures (July 18,

2022) ....................................................................... 13

W.J. Rodabaugh, A Nation of Sots: When

Drinking Was a Patriotic Duty, The New

Republic (Sept. 29, 1979) ....................................... 11

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies helps restore

the principles of constitutional government that are

the foundation of liberty. Toward those ends, Cato

publishes books and studies, conducts conferences,

and produces the annual Cato Supreme Court Review.

This case interests Cato because the right to keep

and bear arms for self-defense is fundamental. An individual does not forfeit this right by engaging in onetime unlawful drug use.

1 Rule 37 statement: All parties were timely notified and con-

sented to the filing of this brief. No part of this brief was authored

by any party’s counsel, and no person or entity other than amicus

funded its preparation or submission.

2

SUMMARY OF ARGUMENT

The Second Amendment protects the individual

right to keep and bear arms. District of Columbia v.

Heller, 554 U.S. 570 (2008). Last term, this Court held

that a government seeking to regulate this individual

right “must affirmatively prove that its firearms regulation is part of the historical tradition that delimits

the outer bounds of the right to keep and bear arms.”

New York State Rifle & Pistol Ass’n v. Bruen, 142 S.

Ct. 2111, 2127). Only if the regulation comports with

history and tradition “may a court conclude that the

individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Id. at 2126. Yet, in the

decision below, the Eighth Circuit’s pre-Bruen interpretation of the Gun Control Act (GCA) treated the individual right to keep and bear arms as flimsy enough

to crumble once the government presents evidence of a

single incident of unlawful marijuana use. This interpretation of the scope of Second Amendment rights is

untethered from history and tradition and incompatible with Bruen.

Before the promulgation of the Gun Control and

Controlled Substances Acts, few laws regulated the

possession of firearms based on past intoxicant use.

Dru Stevenson, The Complex Interplay Between the

Controlled Substances Act and the Gun Control Act, 18

Ohio St. J. Crim. L. 211, 230–31 (2020) (detailing the

history of drug and firearm regulation in America, beginning with the original language of the Gun Control

Act of 1968). Between 1868 and 1909, a handful of

states passed laws addressing the use, sale, and possession of firearms by intoxicated individuals rather

than by individuals who, at some point in their lives,

had been intoxicated or had used prohibited

3

intoxicants. See Robert J. Spitzer, Guns Across America: Reconciling Gun Rules and Rights 185 (2015). Further, the few state laws that existed were narrowly tailored and focused on public safety stemming from the

present use of intoxicants. Id. at 39. But even the most

committed proponent of drug prohibition can’t make a

serious case that having ever used illegal drugs even

once marks someone as a threat to public safety for

life. Moreover, the penalties imposed by state laws involving present intoxication were also limited, imposing small fines or short-term imprisonment in the

county jail. Lifetime dispossession was certainly not

the result.

The Eighth Circuit’s holding conflicts with Bruen

by allowing the government to effectively deprive Petitioner of his Second Amendment rights without “affirmatively proving” that the regulation has sufficient

basis in history and tradition. Bruen, 142 S. Ct. at

2156. It also leads to constitutionally absurd results:

49 percent of American adults report having tried marijuana at least once. Jeffrey M. Jones, Nearly Half of

U.S. Adults Have Tried Marijuana, Gallup (Aug. 17,

2021).2 If one-time use were sufficient to permanently

deprive “unlawful users” of their Second Amendment

rights, then the only thing preventing the government

from dispossessing half the country is the lack of resources required to prosecute and convict the tens of

millions of gun owners and who have consumed marijuana. And because the GCA’s “unlawful user” prohibition applies to “any controlled substance”—which includes all five schedules of the CSA—a wide range of

less-restricted drugs are also covered. Thus, taking

Xanax (listed in Schedule IV) once without a

2 Available at https://bit.ly/3K7Nk5X.

4

prescription would make someone an “unlawful user”

under the Eighth Circuit’s test, as would taking a dose

of a friend’s prescription decongestant. This is why

Section 922(g)(3) can’t be interpreted with blunt,

mechanistic textualism—“unlawful user” means unlawful user—as indeed the majority of circuit courts

recognize. If the Eighth Circuit’s interpretation were

given nationwide effect, over half the country would be

at risk of becoming felons because they once sampled

a pot-infused brownie or shared a spouse’s Ambien to

be able to sleep on a long flight. While the government

would doubtless argue that it is unlikely prosecutors

would go after untold Americans for taking Xanax and

sleeping pills, it is equally unlikely that the government would disclaim the authority to do so. Like the

First Amendment, the Second Amendment requires

more.

This Court should grant certiorari not only because

the Eighth Circuit was wrong pre-Bruen—and certainly wrong post-Bruen—but also to ensure that

Bruen is the standard the government must meet in

all settings where it seeks to deprive someone of a firearm. Modern Second Amendment doctrine is still in its

infancy—lower courts have shown that they need substantial oversight and direction to get it right. The extensive literature about regulating firearms based on

individuals’ use of intoxicants, together with the doctrinal developments in Bruen, present an ideal opportunity for the Court to articulate and update the relevant analytical framework for lower courts.

5

ARGUMENT

I. PROHIBITING GUN POSSESSION BASED

ON ONE-TIME UNLAWFUL DRUG USE IS

UNKNOWN IN THE HISTORY AND TRADITION OF AMERICAN FIREARM REGULATION

The Bruen decision instructed lower courts to employ a historical analysis—looking to America’s historical tradition of firearm regulation to determine

whether an individual’s conduct falls outside the Second Amendment’s “unqualified command.” Bruen, 142

S. Ct. at 2126. If the challenged restriction is not consistent with the text, history, and tradition of firearm

regulation in America, then it fails under Bruen. Forever prohibiting gun ownership or possession by those

who have ever used illegal intoxicants falls well outside acceptable historical regulation of firearms.

Congress enacted the Gun Control Act of 1968 with

the purpose of “keeping firearms out of the hands of

those not legally entitled to possess them because of

age, criminal background, or incompetency.” See Huddleston v. United States, 415 U.S. 814, 824 (1974)

(quoting S. Rep. No. 90-1501, at 22 (1968)). Just two

years after the passage of the GCA, Congress enacted

the Controlled Substances Act (CSA). The purpose of

the CSA was to “combat the heightening drug epidemic” by creating “a unified federal drug policy.” Ira

P. Robbins, Guns N’ Ganja: How Federalism Criminalizes the Lawful Use of Marijuana, 51 U.C.D.L. Rev.

1783, 1790 (2018). Section 922(g)(3) of the GCA marries the two acts and targets the possession of firearms

by “unlawful users” of controlled substances. 18 U.S.C.

§ 922(g)(3).

6

Today, the CSA, through its incorporation in Section 922(g)(3), is one of the main instruments for firearm regulation in America. See Stevenson, supra, at

215 (“Given that most felony convictions are drug-related, our otherwise-goofy federal drug law ends up being our primary operational form of gun control—nothing else even comes close, except the age requirements

for purchasers. Despite the awful problems with the

Controlled Substances Act and the mass incarceration

it produces, one could argue that the CSA is our main

form of gun control right now.”). Prior to the enactment

of the CSA, federal drug prohibition had been built

over time through “a patchwork of regulatory, revenue, and criminal measures.” Alex Kreit, Controlled

Substances, Uncontrolled Law, 6 Alb. Gov’t L. Rev.

332, 334 (2013) (internal quotations and citation omitted). It was not until 1914, when Congress functionally

banned the sale of opiates and cocaine, that the federal

government started taking drug regulation seriously.

Id. Similarly, the first federal law regulating firearms

was not enacted until 1919, “when the Sixty-Sixth

Congress imposed an excise tax on imported firearms

and ammunition.” Ben Ramberg, Prior Involuntary Institutionalization Does Not Justify a Lifetime Second

Amendment Ban: An Originalist Approach to 18

U.S.C. § 922(g)(4), 31 Kan. J. L. & Pub. Pol’y 297, 301

(2022).

Before these 20th-century federal statues, few laws

existed in America targeting the possession of firearms

by users of intoxicants. One of the earliest such laws

was enacted in Virginia in 1631 and prohibited individuals from wasting gun powder by firing guns while

under the influence of alcohol. 1631 Va. Act. 173 (“No

commander of any plantation, shall either himself or

suffer others to spend powder unnecessarily, that is to

7

say, in drinking or entertainments.”) (cleaned up). But

statutes regulating the use of guns by intoxicated persons were scarce until the late 19th century, when a

handful of other states began enacting legislation to

regulate alcohol consumption and firearm use. See

Spitzer, supra, at 185 (providing a detailed appendix

listing state gun laws enacted between 1607 and

1934).

Between 1868 and 1909, a handful of states passed

laws addressing the use, sale, and possession of firearms by intoxicated individuals. Id. While the ultimate goal of these statutes was to promote public

safety, each law varied in the activities it restricted.

Id.

In 1868, Kansas enacted a law prohibiting “any

person under the influence of intoxicating drink” from

carrying a pistol “on his person.” 1868 Kan. Sess. Laws

353.3 Violation of this statute resulted in a fine or imprisonment, but not forfeiture of the weapon. Id. At the

beginning of the 20th century, Missouri and Idaho enacted similar laws prohibiting possession of a firearm

while “intoxicated or under the influence of intoxicating drinks,” with Idaho providing an exception for individuals demonstrating a need to possess the weapon

for self-defense.4

3 “A]ny person under the influence of intoxicating drink . . .

who shall be found within the limits of this state, carrying on his

person a pistol, bowie-knife, dirk or other deadly weapon, shall be

subject to arrest upon the charge of misdemeanor, and upon conviction shall be fined in a sum not exceeding one hundred dollars,

or by imprisonment in the county jail not exceeding three months,

or both, at the discretion of the court.”

4 1879 Mo. Laws 224 (“If any person . . . shall have or carry

any [firearm or dangerous weapon] upon or about his person

when intoxicated or under the influence of intoxicating drinks . .

8

In 1896, Rhode Island enacted a law prohibiting intoxicated individuals from carrying firearms “concealed upon [their] person” and did, in fact, give the

state authority to confiscate the weapon. 1896 R.I.

Pub. Laws 232.5 This statute, however, only prohibited

possession of a concealed firearm if the intoxicated

person was arrested and charged with a crime “or for

being drunk or disorderly.” Id. The law did not prohibit

intoxicated individuals from possessing guns but rather allowed the state to impose fines and confiscate

weapons where an individual was intoxicated and being arrested or charged with another crime. Id. Moreover, the statute made no indication that the confiscation of the firearm was to be permanent or for longer

than it would take for the drunken individual to sober

up. Id.

In 1907, Arizona enacted a similarly narrow law

prohibiting gun possession while intoxicated. The

. he shall, upon conviction, be punished by a fine of not less than

five nor more than one hundred dollars, or by imprisonment in

the county jail not exceeding three months, or by both fine and

imprisonment.”); 1909 Idaho Sess. Laws 6 (“If any person . . . shall

carry concealed upon or about his person [a firearm or other dangerous weapon] . . . [and] shall have or carry any such weapon

upon or about his person when intoxicated, or under the influence

of intoxicating drinks . . . he shall, upon conviction, be punished

[by fine or imprisonment]; [p]rovided however, that it shall be a

good defense to the charge of carrying such concealed weapons if

the defendant shall show that he has been threatened with great

bodily harm, or had good reason to carry the same in the necessary defense of his person, family, home or property.”).

5 “Whenever any person shall be arrested charged with any

crime or misdemeanor, or for being drunk or disorderly, or for any

breach of the peace, and shall have concealed upon his person [a

firearm] such person, upon complaint and conviction . . . shall be

subject to a fine of not less than five dollars nor more than twentyfive dollars and the confiscation of the weapon so found.”

9

Arizona law specifically focused on police officers and

prohibited “any constable or other peace officer, while

under the influence of intoxicating liquor of any kind,

to carry . . . a pistol, gun, or other firearm while so intoxicated.” 1907 Ariz. Sess. Laws 15.6 Arizona did not

prohibit gun possession by intoxicated individuals who

were not members of law enforcement. Id.

Not all states viewed the mere possession of a

weapon by intoxicated individuals as inherently dangerous, and instead restricted people from using or

purchasing firearms while under the influence of alcohol. Thus, for example, Nevada and South Carolina

prohibited activities posing obvious threats to public

safety, such as drunkenly firing a gun along a public

road. 1881 Nev. Stat. 19; 1899 S.C. Acts 97.7

6 “It shall be unlawful for any constable or other peace officer

in the Territory of Arizona, while under the influence of intoxicating liquor of any kind, to carry or have on his person a pistol, gun,

or other firearm, or while so intoxicated to strike any person, or

to strike at any person with a pistol, gun or other firearm, or to

use any vile or abusive language to any person, or for any such

officer while under the influence of intoxicating liquor of any

kind, to attempt to arrest, or threaten to arrest any person, without a warrant, except for offenses committed at the time in his

own view.”

7 1881 Nev. Stat. 19 (“Any person in this State under the influence of liquor or otherwise, who shall, except in necessary selfdefense, maliciously, wantonly or negligently discharge or cause

to be discharged any pistol, gun or other kind of firearm, in or

upon any public street or thoroughfare . . . shall be deemed guilty

of a misdemeanor . . . .”); 1899 S.C. Acts 97 (“[T]hat any person

who shall engage in any boisterous conduct, under the influence

of intoxicating liquors, or while feigning to be under the influence

of such liquors, or without just cause or excuse, shall discharge

any gun, pistol or other firearms while upon or within fifty yards

of any public road, except upon his own premises, shall be guilty

of a misdemeanor, and upon conviction thereof shall pay a fine of

10

The use of intoxicants is of course not unique to

modern American society, nor is the possession of firearms by those who periodically use intoxicants. See

Mary B. Bridgeman & Daniel T. Abazia, Medicinal

Cannabis: History, Pharmacology, & Implications for

the Acute Care Setting, 42 Pharmacy & Therapeutics

180, 180 (2017) (“[C]annabis was widely utilized as

medicine during the 19th and early 20th centuries.”);8

Mark R. Jones et al., A Brief History of the Opioid Epidemic & Strategies for Pain Medicine, 7 Pain & Therapy 13, 15 (2018) (“There was no regulation on the use

of cocaine and opioids, resulting in widespread marketing and prescribing for many ailments ranging

from diarrhea to toothache.”).9 “When a challenged

regulation addresses a general societal problem that

has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that

problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.”

Bruen, 142 S. Ct. at 2131. The use of substances like

marijuana and opiates went federally unregulated until the Harrison Narcotics Tax Act of 1914. Jones et al.,

supra, at 15. States, of course, have long regulated the

permissible uses of alcohol, and the simultaneous consumption of alcohol and possession of firearms could

not have been unusual during the Founding era. In

fact, the Founding era was flush with alcohol use. According to one account, “From morning until night,

people in the 18th century drank.” Amanda Cargill,

What Did the Founding Fathers Eat and Drink as They

Started a Revolution?, Smithsonian Magazine (July 3,

not more than one hundred dollars or be imprisoned for not more

than thirty days.”

8 Available at https://bit.ly/3zYrSwx.

9 Available at https://bit.ly/3oSMPmx.

11

2018).10 And that trend continued in the years after

the Founding. W.J. Rodabaugh, A Nation of Sots:

When Drinking Was a Patriotic Duty, The New Republic (Sept. 29, 1979) (“The average adult drank about

three times as much alcohol in the 1820s as adults do

now. And the consumption of alcohol had been growing

vigorously. Between 1790 and 1830 the annual

amount of hard liquor—primarily whiskey—that an

average American drank nearly doubled.”).11

Nevertheless, statutes regulating possession and

use of firearms by those engaging in drug or alcohol

use were exceedingly rare until the late 19th and early

20th centuries. Prohibitions on merely possessing a

firearm based on past use of intoxicants are a novelty

of the mid-20th-century and not remotely comparable

to the firearm laws of the past.

II. THE EIGHTH CIRCUIT’S INTERPRETATION

OF SECTION 922(G)(3) IS AHISTORICAL,

UNPOPULAR IN THE CIRCUITS, AND

LEADS TO UNCONSTITUTIONAL RESULTS

The Eighth Circuit’s interpretation of Section

922(g)(3) takes it even further outside the bounds of

analogous historical firearm restrictions by prohibiting anyone who has engaged in the unlawful use of a

controlled substance at least one time from possessing

a firearm. The existence of a handful of 19th- and 20thcentury state laws regulating the possession of firearms by intoxicated persons is not remotely sufficient

to justify dispossessing Americans of their right to own

a firearm based on one-time drug use. See Bruen, 142

S. Ct. at 2154 (“[T]he bare existence of . . . localized

10 Available at https://bit.ly/2z9YN3T.

11 Available at https://bit.ly/3TbnHoR.

12

restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition.”);

see also id. at 2154 (“[L]ate-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.”). In determining whether a given firearm regulation is consistent with the Second Amendment,

courts must determine “whether modern historical

regulations impose a comparable burden on the right

of armed self-defense,” and “whether that regulatory

burden is comparably justified.” Id. at 2133. The

Eighth Circuit’s interpretation of Section 922(g)(3) departs from history and tradition by stripping individuals of their Second Amendment rights upon evidence

of a single instance of marijuana use.

As discussed above, historically, laws restricting

the possession of firearms focused on public safety and

were narrowly tailored to address specific and self-evidently hazardous activities. Spitzer, supra, at 39. In

contrast, Section 922(g)(3) bars anyone who falls

within the broad classification of “unlawful user” from

possessing a firearm because of the potential for danger. Barrett v. United States, 423 U.S. 212, 218 (1976)

(“The very structure of the [GCA] demonstrates that

Congress . . . sought broadly to keep firearms away

from the person Congress classified as potentially irresponsible and dangerous.”) (emphasis added).

The desire to prevent the potentially dangerous individuals from possessing firearms is a compelling

government interest. For this reason, lower courts

have upheld Section 922(g)(3)’s prohibition as applied

to habitual drug users under their post-Heller framework. See United States v. Yancey, 621 F.3d 681, 685–

86 (7th Cir. 2010) (describing how habitual drug users,

13

like felons and the mentally ill, are ‘more likely to have

difficulty exercising self-control,” thus, “making it dangerous for them to possess deadly firearms”); United

States v. Dugan, 657 F.3d 998, 999 (9th Cir. 2011)

(“Like our sister circuits, we see the same amount of

danger in allowing habitual drug users to traffic in

firearms as we see in allowing felons and mentally ill

people to do so.”). Nevertheless, as this Court held in

Bruen, a compelling interest is not by itself a sufficient

justification for stripping individuals of their Second

Amendment rights. 142 S. Ct. at 2129 (declining to engage in means-end scrutiny because “the very enumeration” of the right to keep and bear arms “takes out of

the hands of government—even the Third Branch of

Government—the power to decide on a case-by-case

basis whether the right is really worth insisting upon”)

(quoting Heller, 554 U.S. at 624). Even if this Court

were to conclude that history and tradition supports a

ban on firearm ownership for habitual drug users, the

Eighth Circuit goes farther still in stripping non-violent citizens of their right to own a firearm for self-defense simply because they engaged in one-time drug

use.

Moreover, the Eighth Circuit’s conclusion leads to

unconstitutional and absurd results. As mentioned

above, nearly half of American adults report having

tried marijuana at least once. Jones, Gallup poll, supra. As of February 3, 2022, 37 states have legalized

marijuana for medical use, and as of May 27, 2022, 19

states have enacted measures to legalize marijuana for

recreational use. State Medical Cannabis Laws, National Conference of State Legislatures (July 18,

2022).12 And six more states could legalize recreational

12 Available at https://bit.ly/3SRLfiB.

14

marijuana by the end of 2022. Jacob Sullum, Six More

States Could Legalize Recreational Marijuana This

Fall, Reason (Aug. 15, 2022).13 Nevertheless, marijuana remains a Schedule I drug under the CSA, meaning those using marijuana lawfully under state law,

medicinally or recreationally, are still prohibited from

legally purchasing or possessing a firearm. See Stevenson, supra, at 213. The federal firearm backgroundcheck form, ATF Form 4473, asks buyers whether they

are “an unlawful user of, or addicted to, marijuana or

any depressant, stimulant, narcotic drug, or any other

controlled substance?” The meaning of this question is

not clarified—except to remind the applicant that it is

irrelevant whether marijuana is legal under his state’s

laws—and the ATF has stubbornly refused to define or

clarify the terms. But lying on the form is still a felony

that carries up to a ten-year sentence. 18 U.S.C. §

924(a).

As noted above, and on Form 4473, the GCA’s “unlawful user” prohibition applies to “any other controlled substance,” such as Robitussin AC, Ambien,

and decongestant antihistamines. See Robbins, supra,

at 1791. The Eighth Circuit’s decision below would abrogate the constitutional right of a large portion of the

population to keep and bear arms based on one-time

unlawful use of intoxicants or prescription drugs. This

is far from being rooted in the “affirmative proof” of

history and tradition that this Court requires.

13 Available at https://bit.ly/3pFn0Xi.

15

III. THIS COURT SHOULD GRANT CERTIORARI TO CLARIFY WHAT BRUEN MEANS

FOR THE LARGE NUMBER OF PEOPLE

WHO COULD BE CONSIDERED “UNLAWFUL USERS” OF CONTROLLED SUBSTANCES

“Before the Supreme Court’s 2008 opinion in District of Columbia v. Heller, the Second Amendment

had received little Supreme Court attention.” Sarah

Herman Peck, Cong. Research Serv., R44618, PostHeller Second Amendment Jurisprudence (2019).14

And until Bruen, lower courts had little guidance on

how to interpret and apply the Second Amendment to

the myriad state and federal laws regulating the acquisition, possession, and use of firearms. See Bruen,

142 S. Ct. at 2111. Besides providing much needed direction to lower courts, the Bruen decision clarifies

Second Amendment jurisprudence and affirms the importance of looking to history and tradition when examining the constitutionality of firearm regulations.

During the post-Heller, pre-Bruen era, lower courts

consistently upheld Section 922(g)(3) against Second

Amendment challenges. See United States v. Yancey,

621 F.3d 681 (7th Cir. 2010). United States v. Seay, 620

F.3d 919 (8th Cir. 2010), cert. denied, 562 U.S. 1191

(2011); United States v. Dugan, 657 F.3d 998 (9th Cir.

2011); United States v. May, 538 Fed. App’x 465 (5th

Cir. 2013), cert. denied, 571 U.S. 1102 (2013); United

States v. Carter, 750 F.3d 462 (4th Cir. 2014), cert. denied, 574 U.S. 907 (2014); Wilson v. Lynch, 835 F. 3d

1083 (9th Cir. 2016), cert. denied, 137 S. Ct. 1396

(2017). Now, post-Bruen, courts will necessarily have

14 Available at https://bit.ly/3wh9Mny.

16

to apply a different standard, and this Court can help

clarify what that new framework is and how it should

be applied.

The Eighth Circuit’s interpretation of the GCA is

not congruent with Bruen. The rich historical evidence

available about regulating firearms based on an individual’s use of intoxicants presents an ideal opportunity for this Court to expand on Bruen and elaborate

its own analysis for lower courts. “Constitutional

rights are enshrined with the scope they were understood to have when the people adopted them, whether

or not future legislatures or (yes) even future judges

think that scope too broad.” Heller, 554 U.S. at 635.

CONCLUSION

For the foregoing reasons, and those described by

the Petitioner, this Court should grant the petition.

........................................... Respectfully submitted,

August 25, 2022

Clark M. Neily III

Counsel of Record

Trevor Burrus

Nicole Saad Bembridge

Laura A. Bondank

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

cneily@cato.org