In 2008, the U.S. Supreme Court in District of Columbia v. Heller held that the Second Amendment codified a “pre-existing” right that allows individuals to keep and bear arms. The court specifically found that the right to self-defense is undeniable in the home “where the need for defense of self, family, and property is most acute.”


The year following the Heller decision Benjamin Tod Carter was living in a two-unit apartment building in Charleston, West Virginia. The police had received complaints about “suspected drug activity” in the building. The police decided to investigate. After arriving at the apartment building, they began knocking on doors and talking to the individuals who responded. The officers discovered some evidence of marijuana use in the first unit of the building. This led them to knock on Carter’s door; he answered and let the officers enter his apartment. The officers immediately detected the odor of marijuana and began questioning Carter about it. He admitted to marijuana use, informing the officers he had used the drug for 15 years.


An ensuing search of Carter’s apartment found 12 grams of loose marijuana, 15 grams of “partially smoked blunts,” a digital scale, and a little more than a thousand dollars in cash. Carter also informed the officers that he had two firearms in a closet—a semi-automatic pistol and a revolver. He told the officers he had purchased the weapons from a friend a week earlier and that he had them for self-defense. He said he lived in “a bad neighborhood” and the weapons were needed to protect himself and a nephew who lived with him.


That explanation was more than plausible because there had been a recent

burglary in the building and another resident had been shot eight times.


Carter was arrested by state authorities who promptly gave him up to federal authorities. The Assistant U.S. Attorney sought and secured an indictment of Carter under 18 U.S.C. § 922(g)(3) which makes it unlawful for a person to possess a firearm “who is an unlawful user of or addicted to any controlled substance.”


Attorneys for Carter moved to dismiss the charge based on Heller’s guaranteed Second Amendment right to keep and bear arms in self-defense. The district Court denied the motion. In August 2009, Carter entered a conditional guilty plea preserving his right to appeal the Second Amendment issue. He received a three-year probated sentence for the possession of the two firearms.


In January 2012, the Fourth Circuit Court of Appeals elected not to directly address Carter’s claim that § 922(g)(3) infringed on his Second Amendment right to bear arms. Instead the court remanded the case back to the trial court to give the Government an opportunity “to substantiate the fit between § 922(g)(3) and the government’s important interest in protecting the community from gun violence.”


The court noted that while the Government had made a “commonsense” argument it had a compelling interest in protecting the community from gun violence, it had failed to present any “empirical evidence or data” to substantiate that interest, particularly with respect to § 922(g)(3)’s intent to disarm drug users and addicts.


In an April 30, 2014 decision, United States v. Carter, the Fourth Circuit found that the Government carried this burden on remand following an evidentiary hearing. The appeals court explained why it reached this conclusion:


“On remand, both the government and Carter submitted a number of publications and studies to the district court about the behavioral tendencies of drug users. After considering the evidence, the [trial] court concluded that the government had carried its burden, finding that the data indicated ‘a correlation between violent crime . . . and drug use.’


While the court acknowledged that the government’s studies did not prove ‘a strict causal nexus’ between drug usage and violence, it found that ‘the two factors frequently coincide.’ In addition, it pointed to ‘common-sense notions’ that supported the fit between drug users and violence, noting (1) that drug users are more likely to encounter law enforcement; (2) that their criminal associations increase the risk of violence; (3) that the high price of drugs is likely to lead to violent property crimes; and (4) that drug use impairs judgment.


“The [trial] court then concluded: ‘Based upon the narrowed design of the statute, the empirical and scholarly evidence relied upon, the weight of precedent nationwide, and common sense, the United States has shouldered its burden of establishing that section 922(g)(3) is reasonably fitted to achieve the substantial governmental objective of protecting the community from crime by keeping guns out of the hands of those impaired by their use of controlled substances. The court, accordingly, concludes that section 922(g)(3) is constitutional as applied to Mr. Carter.’”


In supporting the trial court’s findings, the Fourth Circuit brushed aside Carter’s argument that marijuana use is different from general drug use in that “marijuana users are not prone to violence.” The appeals court summed up its position on that argument this way:


“We have little trouble concluding that the studies presented to the district court by both the government and Carter indicate a strong link between drug use and violence. A study by Carrie Oser and colleagues, offered by the government, found that probationers who had perpetrated violence in the past were significantly more likely to have used a host of drugs — marijuana, hallucinogens, sedatives, and heroin — than probationers who had never been involved in a violent episode.


A 2004 survey of prisoners by the Bureau of Justice, again offered by the government, found that almost 50% of all state and federal prisoners who had committed violent felonies were drug abusers or addicts in the year before their arrest, as compared to only 2% of the general population. That survey also found that inmates who were dependent on drugs or abusing them were much more likely to have a criminal history.


The government also presented a study by Lana Harrison and Joseph Gfroerer, which found that individuals who used marijuana or marijuana and cocaine, in addition to alcohol, were significantly more likely to engage in violent crime than individuals who only used alcohol. And finally, the government presented a study by Virginia McCoy and colleagues, which found that chronic cocaine and opiate users were more likely than nonusers to engage in robbery and violence.”


Twenty-one states and the District of Columbia have legalized “medical marijuana” while seventeen states have decriminalized its use. Two states, Colorado and Washington, have legalized the drug’s “recreational use.” The Federal government nonetheless still considers marijuana illegal under the Controlled Substances Act.


Under the Fourth Circuit’s reasoning in the Carter decision, individuals who use marijuana in these states, including for medical use, do not have a Second Amendment right to “keep and bear arms” in defense of self, family or home. In other words, a law-abiding rancher in Colorado who uses marijuana to ease the effects of chemotherapy for his prostate cancer cannot possess his legally-purchased .30-.30 caliber rifle to protect his family, or his livestock from predators.