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It’s Time to Use Bruen to Make Feds Show Why Controlled Substances Void the Right to Keep and Bear Arms


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Gun-control isn’t just about concealed carry, modern sporting rifles nor NICS checks. The prohibited person laws are almost as important as the gun laws themselves.

Recall that the Veterans’ Administration feeding NICS the names of veterans who gave powers-of-attorney to handle their VA benefits. The VA asserted that since these vets declared themselves incompetent to administer their personal affairs they fell under the definition of a prohibited person.

There was nothing novel in this gun-control gambit. Those in power have always strived to dis-arm their anticipated enemies. Colonial governments declared Indians prohibited persons and early gun control laws targeted slaves and freed blacks.

The Bruen decision established text, history and tradition as the criteria for evaluating gun control laws. That puts the prohibited person criteria of the Gun Control Act (18 U.S.C. § 922(g)) in the crosshairs. There are 10+ disqualifying criteria, including anyone: “. . . who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);

Just like many TTAG readers, I have been a lawful user of a “controlled substance.” And so, I wonder what distinguishes me (or you) from the unlawful user of any such controlled substance.  What are these “controlled substances” exactly?

There are hundreds enumerated in Schedules I through V. Cough medicines containing codeine are at the low end of the scale in Schedule V. Testosterone is in the middle in Schedule III. Marijuana is in Schedule I; and weed is undoubtedly the most prominent drug of concern overall. Still, it’s not the only drug we ought to be concerned about.

What is an “unlawful” use? Suppose your spouse was prescribed a codeine-containing drug some time ago, perhaps for a cough or dental procedure. She didn’t use it all. You come down with a nasty, uncontrollable, cough and grab the most promising substance in your medicine cabinet.

Presto! You are an unlawful user. Alternatively, you’ve been prescribed testosterone (and Viagra) for that little performance problem. Your son has a hot date tonight and he pinches one of your patches. Presto! He’s a prohibited person.

Our veteran neighbor, who treats his PTSD with cannabis, won’t be so lucky. He will have difficulty keeping his marijuana use a secret from his hoplophobe neighbors, any one of whom could drop a dime on him. If he lives in a medical marijuana state, he likely needs a prescription (a discoverable medical record) and a medical marijuana card (a discoverable public record) to use this controlled substance under his state’s law. But he is still a federal felon.

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Our frenemy Nikki Fried, Florida’s Agriculture Department head who issues the widely honored Sunshine State’s CWPs, is suing the Feds seeking to allow medical marijuana users to buy and own guns. Biden’s DoJ is defending the law arguing that it would be too “dangerous to trust regular marijuana users to exercise sound judgment.”

What distinguishes the unlawful user of any other controlled substance from the legally prescribed patient? If codeine is too dangerous for firearm owners, then how does a prescription make it non-dangerous? If testosterone is too dangerous for firearm owners then shouldn’t all men be declared to be prohibited persons due to their endogenous poisoning by this controlled substance?

Second, shouldn’t we distinguish each supposedly “dangerous” drug from all other molecules on the controlled substances lists? Isn’t this a matter of principle?  Shouldn’t each molecule be judged on its own merits or lack thereof?

Consider the drug ketamine (Schedule III). It’s a derivative of PCP. Nevertheless, it’s so safe that WHO lists it as an essential medicine. Under-trained medical personnel in third-world countries can safely use it as an anesthetic without expensive monitoring equipment. There is no persuasive evidence of violent behavior from ketamine use. So, why should any use — unlawful or legally prescribed — of ketamine represent a danger for firearms ownership?

Ultimately, this “unlawful user of a controlled substance” criterion must surmount the Bruen “text, history and tradition” standard. If it can’t pass that test, it must be struck-down as unconstitutional. Why should we bother? This is important for two reasons.

First, because gun-controllers are inflamed that Bruen struck-down their may-issue permitting regimes and are further outraged by the “text, history, and tradition” standard.  They will seek every alternative avenue to constrain lawful gun ownership to the narrowest possible scope.

What better way than to vigorously pursue unlawful users of controlled substances Congress, even the DEA, can add any substance whatsoever to the controlled substances schedules at a whim.

Suppose they add Viagra to Schedule V. Then anyone who gave his (OFWG) hunting buddy a little blue pill for an upcoming hot date would render that gun owner a prohibited person. The obvious risk staring us in the face is that countless veterans who suffer from PTSD, are easily discoverable unlawful users of weed.

Second, we have an unexploited opportunity to make common cause with our fellow belligerents in the contra-War on Drugs, including powerful people such as Florida’s Nikki Fried. It’s perfectly well established that there are legitimate medicinal uses of marijuana. Nevertheless, Congress has refused to demote pot from the Schedule I to a lower Schedule so that gun owners can lawfully use medical marijuana under guidance from their physicians. Congress wants to reserve to the DEA the power to round up all weed users and strip them of their 2A rights.

It’s natural for each of us to ask ourselves: ‘Why should I care? I don’t use weed and none of my friends do. It doesn’t affect me. Why should I stand up to speak in defense of vets who use it to treat their PTSD?’

The obvious answer is that if we don’t stand up for veterans’ cannabis use there will be no one who stands up for us when we run afoul of the “unlawful use of a controlled substance” tripwire.

As I’ve mentioned above, I am a lawful user of a Schedule III controlled substance. It will cost me $3,000 for my first year’s use of this substance; $1,720 per year thereafter.  That’s the price for my annual lawful use of $10 worth of a drug at wholesale prices.

Suppose — purely hypothetically, of course — that in a few years I were tempted to buy my drug in the black market for $100 per year. I cut out my beloved prescriber and registered pharmacist. I would then become a prohibited person. Why? Would I be any more dangerous as a gun owner taking the exact same dosage of black-market drug as the one my physician has prescribed for me?

Millions more patients will soon face this same dilemma as unlawful marijuana users and I face. FDA has declared two Schedule I substances, MDMA and psilocybin, as “breakthrough therapies” for PTSD and depression. One is approaching the end of its Phase III trials with spectacular results. The other is beginning Phase I and II trials with a foregone conclusion as to its performance as well.

But the FDA is nearly certain to impose a REMS on the dispensing of each drug making it prohibitively expensive for nearly all patients. The expected cost of a legal course of treatment of MDMA is expected to be $14,000. And no insurance reimbursement is expected in the foreseeable future.

I expect that the market for MDMA and psilocybin will follow the well-worn path marijuana has traveled. Prescribed legal use will account for a minor distribution channel. Patients will learn of the potential for use of these substances through friends, neighbors, and the internet. The black-market will then fill the void.

One day you, or a loved one, will recognize the potential of any of these three substances (to say nothing of the hundreds of other scheduled controlled substances) to relieve suffering. Will you pay the outrageous prices to use them legally? Or, will you too resort to the black-market?

Collectively, use of such controlled substances is apt to become as ubiquitous as Tylenol consumption, a drug that is vastly more likely to cause an overdose than the three drugs mentioned above. The handwriting is on the wall. Gun owners would do well to read it and act today.

We must litigate in the courts to have the ‘unlawful use, or addicted to, controlled substance’ criteria eliminated from the Prohibited-Persons law based on a Bruen text, history, and tradition analysis.

The feds should be compelled to produce evidence and reasoning for why controlled substance use is outside the bounds of the right to keep and bear arms. Can they show laws adopted and enforced around 1791 prohibiting gun ownership by users of alcohol? Consumers of ergot-contaminated grains? Morning glory seeds? Any substance whatsoever? It’s highly unlikely they will find anything to support such a prohibition.

4473 controlled substance marijuana
ATF Form 4473

We have known for centuries that alcohol and gunpowder don’t mix well. There was ample opportunity for the founding generation to have adopted laws prohibiting guns from alcohol users, yet they didn’t do so. And the feds will be hard-pressed to collect compelling evidence that such control was deemed not to be an infringement on the right to keep and bear arms.

Our particular ax to grind in the controlled substance debate is the gun prohibition for unlawful use. Pursuing this cause will ally us with people like Nikki Fried and other unlawful users who don’t (yet) treasure their 2A rights. In times like these, we need all the friends we can identify.

Like gun control laws, Nixon’s War on Drugs was designed to target disliked groups: blacks and hippies. It had nothing to do with public health, safety, or morals. It was politics by other means and America has paid dearly for this ill-conceived venture.

Most of us in the gun-owner community have come to recognize that drug prohibition has done society more harm than good.

The so-called controlled substances show great potential for a range of medical – especially mental health – usage. Enforcement of the controlled substances laws — the War on Drugs — has been a major contributor to unlawful drug dealers fighting it out with guns rather than through price and promotion. We in the gun owner community will do society in general, as well as the Second Amendment, great service by surrendering in the War on Drugs.

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