In Wake of Hemani Decision, GOA Sues State Over Carry Ban for Minor Drug Offenses

Gun Owners of America and Gun Owners Foundation are suing the state of Pennsylvania over a bizarre statute that prohibits anyone convicted of any violation of the state’s Controlled Substance, Drug, Device and Cosmetic Act from obtaining a license to carry a firearm, even if the offense was a misdemeanor that doesn’t prohibit them from purchasing or possessing a firearm in the home. 

The statute applies even to those convicted of non-violent drug offenses like possessing a small amount of a controlled substance, and the prohibition is permanent, which means a conviction for possessing a joint or two before the state decriminalized marijuana possession is still an insurmountable barrier for those who want to exercise their right to bear arms. 

That’s exactly what’s happened to Craig Phillips, an honorably discharged Air Force and Gulf War veteran who is the named plaintiff in GOA and GOF’s lawsuit. In 1994, Phillips was convicted of a misdemeanor for possession of a small amount of marijuana. That is the only blot on his record, and as the groups note in a press release, “he remains fully eligible to purchase and own firearms under state and federal law. Yet, solely because of this 32-year-old minor misdemeanor, Pennsylvania permanently denies him his constitutional right to bear arms in public.”

The complaint points out that there’s a clear conflict with the statute and what the Supreme Court recently held in Hemani; “unlawful” drug use, by itself, is not enough of a reason to deprive someone of their Second Amendment rights. 

In United States v. Hemani, the Supreme Court held that the firearm prosecution of an individual who used “marijuana about every other day” did not comport with the Second Amendment. In Hemani, the Supreme Court conducted a historical analysis of Founding-era “habitual drunkard laws,” which “differ[ed] dramatically” from 18U.S.C. § 922(g)(3), the statute under which Mr. Hemani had been charged. Indeed, the “habitual drunkard laws” “targeted different kinds of people, did so for different purposes, and operated in different ways.” Pennsylvania law, like the law found unconstitutional in Hemani, operates to deprive those with convictions under the CSDDCA of their full rights to“keep and bear arms.”

The lawsuit isn’t a facial challenge to the Controlled Substance, Drug, Device and Cosmetic Act. Instead, Phillips and the 2A groups argue that the law is unconstitutional as it applies to him (and others convicted of low-level, non-violent drug offenses). Historical tradition, they argue, “does not support permanently denying the right to bear arms to a person based upon the nonviolent offense of Possession of a Small Amount of Marijuana occurring over three decades prior.”

I think that’s absolutely right, and the fact that Phillips can and has purchased and possessed firearms in the decades since his conviction is evidence that the state of Pennsylvania doesn’t consider him too dangerous to exercise his Second Amendment rights. The right to bear arms is co-equal to the right to keep them, and the state’s deprivation of that right to all those convicted of simple possession of marijuana is not only out of sync with the national tradition of gun ownership, but would appear to be directly foreclosed by the Hemani decision. 

I suspect that Pennsylvania isn’t the only state with similar laws in place, and this probably won’t be the last lawsuit filed using Hemani as the basis for a complaint. I’d like to see Keystone State lawmakers act to repeal this provision of state statutes, but if they won’t take that step then my guess is the courts will do that for them… with the help of GOA, GOF, and Mr. Phillips.