Marijuana Users and the Second Amendment

I added a bit earlier that the Supreme Court put on hold a lower court opinion involving ghost guns (the order provides a little detail of what specifically was done without saying why).  SCOTUS will decide a case next term summarized thusly:

Issue(s): Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.

Along with the Dobbs decision last term, the 6-3 Supreme Court expanded the reach of the Second Amendment.  Lower courts often used a two-step process that led to many regulations being deemed acceptable. Now, "historical tradition of firearm regulation" is the test.  Bruen also clearly provided open-ended, if unclear, protection for public use.

This has led to some more confusion in the lower courts as well as more regulations going by the wayside.  For instance, one regulation cited on Legal Twitter involved a ban on butterfly knives.  We now have a 5th Circuit ruling (the circuit where that domestic violence case is coming out of, one many think will be deemed going too far) involving marijuana use.

The concurrence notes that the Supreme Court made a reference to "lawful users" but then what does he know?  He tosses in some reference to "self-regulation" (using quotes) though the Second Amendment does not actually say "self."  But, the Supreme Court did talk about lawful users. The use of marijuana under federal law is unlawful.  QED? 

Guess not. The historical practice (see, e.g., a law review by old conservative judge Judge Diarmuid F. O’Scannlain) does not show a comparable regulation.  Oh.  Is there a lot of gun regulations in the 18th and 19th Century involving marijuana?  No.  But, hey, we can use "the next closest comparator," alcohol.  Sure.  Does that work with meth and heroin?

Our regulation of drugs leaves a lot to be desired but trying to find 18th and 19th Century analogs to something that underwent a lot of change per modern-day knowledge and practices is asinine.  I realize that the lower courts have to follow asinine Supreme Court cases.  But, that doesn't erase that it's asinine.  And, that alcohol is not a great analog to drugs.

We get an early note that: "it does not justify disarming a sober citizen based exclusively on his past drug usage."  But, the person admitted to smoking marijuana “approximately fourteen days out of a month."  Oh, we don't really know how much of that actually involves intoxication, especially at the time of the arrest.   

I think there is some cause to be concerned that "unlawful" action will lead to the removal of Second Amendment rights.  There should be some degree of a good fit, at least granting that includes an individual right to own a firearm (note the person here had "two loaded firearms: a 9mm pistol and a semi-automatic rifle").  But, the person did not merely have a little pot in his cabin.  He was a regular user of the stuff. 

We are supposed to think he has a constitutional right to have a loaded semi-automatic rifle because hey we don't know exactly how much marijuana use he partook in, granting by his own admission it was not trivial?  Because 19th Century practice was to lightly regulate those who used alcohol and owned firearms?  Just asinine stuff.

I again grant the responsibility of inferior courts here but like the concurrence (who is critical of Bruen but goes along with the majority without issue) can voice my concerns here.  The basic practice here is bad constitutional law.  I found something I wrote a few years back:

The Constitution is a living document. It is by basic reality, not some sort of blind faith. Its terms don't have meaning on their own. They have meaning in action. The action continues ever on. This is what its writers said and it is what experience shows. This is not idealism. It is imperfect reality.

My mantra is that we need to apply the Constitution based on what have learned, up to and including today.  History is a guide but it is the full history.  Regulations of drugs in the modern state are something we learned about in the 20th and 21st Centuries.  Again, this can have a certain degree of liberal and libertarian results as applied to drug policy.

But, not in this ham-handed fashion.  I question (see Gonzalez v. Raich) how this Court actually would apply the Second Amendment to drug users.  We will see how they apply it to domestic violence next year and perhaps more "clarification" on the amendment.   

ETA: A reasonable 2A scholar who is no big fan of the current doctrine deals with the opinion and says the result is reasonable.  I'm not one to dispute him on the bare law of the situation.  Either way, the reasoning to me is absurd as is the overall law.  He doesn't agree with all of it.  

He also separately "Hunter Biden’s 922(g)(3) charge would have to be dismissed under this ruling," but others disagree.  IDK.  First, he was prosecuted in another circuit, so it would have to follow the ruling.  Second, he took more dangerous drugs.  

Now, my quick reading of the opinion doesn't lead me to think the relatively safety of marijuana is the turning point.  But, it very well could be if the matter was pressed.