Gun Rights for Drug-Dependent Persons (Ohio Edition)

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Gun Rights for Drug-Dependent Persons (Ohio Edition)

Postby Werz » Thu May 03, 2018 10:48 am

The Ohio Revised Code dictates that, “unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if *** [t]he person is drug dependent, in danger of drug dependence, or a chronic alcoholic.” R.C. 2923.13(A)(4). At least one Ohio appellate court has upheld this provision under the Second Amendment. State v. Wheatley, 4th Dist. No. 17CA3, 2018-Ohio-464. But what about recovering drug addicts? Recovery programs such as Narcotics Anonymous teach us that once one is an addict, one will always be an addict, and recovery from addiction is a lifetime process. Can a recovering addict be restored to his or her right to keep and bear arms? The answer is “yes,” and it appears that the requisite period of recovery is one year clean and sober.

“Appellant's claim that R.C. 2923.13(A)(4) imposes a lifetime ban upon drug addicts is meritless. The statutory definitions do not encompass recovering drug addicts who are not using drugs. Instead, the definitions reveal that a drug-dependent individual or a person in danger of becoming drug-dependent must currently use drugs or do so on a habitual basis. The definitions do not cover individuals who formerly abused drugs and have completely recovered from their addiction.” State v. Wheatley, supra, at ¶22.

“Unlike those who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, an unlawful drug user like Yancey could regain his right to possess a firearm simply by ending his drug abuse. In that sense, the restriction in § 922(g)(3) is far less onerous than those affecting felons and the mentally ill. We have observed before that there is no constitutional problem with separating guns and drugs. (Citation omitted.) The prohibition in § 922(g)(3) bars only those persons who are current drug users from possessing a firearm, and 'it is obvious that the tenses used throughout Title IV [including § 922(g) ] were chosen with care.’ (Citations omitted.) Every circuit to have considered the question has demanded that the habitual abuse be contemporaneous with the gun possession. (Citations omitted.) Thus the gun ban extends only so long as Yancey abuses drugs. In that way, Yancey himself controls his right to possess a gun; the Second Amendment, however, does not require Congress to allow him to simultaneously choose both gun possession and drug abuse.” United States v. Yancey, 621 F.3d 681, 686-687 (7th Cir. 2010). See also, Wheatley, supra, at ¶19.

“Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.” 27 C.F.R. 478.11. See also, Wheatley, supra, at ¶18, fn. 7.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
-- BobK
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