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New gun-control legislation would prohibit those arrested but not convicted of drug crimes from possessing firearms

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Jeff Winkler
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      Jeff Winkler

      Jeff Winkler is a Daily Caller staff writer covering firearms, as well as campaign advertising and fringe culture topics. He worked previously for several Arkansas and New Zealand publications. His byline has appeared in Slate, Reason, Good magazine, the Guardian, Washington City Paper and most notably, Worm Digest.

Get collared years ago on a bogus drug charge because the oregano in your back pocket looked like was a bag of weed? Or maybe a judge back in 2006 dropped those charges because you were able to provide proof for that Adderall prescription? Under proposed legislation, it will not matter if you were innocent all along or even proven innocent by a court of law.

Either way, you can forget about buying a gun.

The Fix Gun Checks Act of 2011 would greatly expand the definition of those legally prohibited from owning firearms to include anyone who’s ever been arrested — even if never convicted or found guilty — for drug possession within a five-year period. The legislation is certainly troubling for those who want a “common sense” debate about drug decriminalization. And it would seem fears that any new national gun-control legislation would be used to limit the gun-rights of law-abiding citizens is at least partially justified.

Sponsored by New York Democratic Sen. Chuck Schumer and introduced earlier this month, the expanded background checks bill includes a “clarification of the definition of drug abusers and drug addicts who are prohibited from possessing firearms.” Under Schumer’s bill, the definition of a “drug abuser” would include anyone with “an arrest for the use or possession of a controlled substance within the past 5 years.”

Current federal law already specifies that two kinds of drug users can be barred from owning a gun: (1) Those who have been convicted of possessing or using a controlled substance in the past year and (2) Anyone who has had multiple drug arrests in the past five years, including one within a year of applying for a firearm, according to the Bureau of Alcohol, Tobacco and Firearms.

The rules surrounding what “inference” the federal government can make about a current “drug user” are complicated. Add to that regulations stating who is prohibited from owning a firearm; a cumbersome background check system; and inter-departmental communication and, suddenly, the combination of firearms and drugs becomes a confusing bureaucratic mess of regulations and codes.

But the “arrest” language of Schumer’s bill and a clarification from the ATF indicate that a greater number of innocent Americans would be barred from owning a gun if the Senate bill becomes law.

“Under the definition of ‘unlawful user’ … an inference of current use could be drawn if the one arrest resulted in a conviction for use or possession of a controlled substance within the past year,” the ATF told the The Daily Caller.

To clear up any confusion, Schumer’s bill would expand that “inference” to say: if you’ve ever been arrested for any kind of drug use or possession in the past five year, you can be denied the lawful possession of a firearm.

The bill’s definition of an “unlawful user” also includes anyone arrested for drug paraphernalia within the past five years if the paraphernalia is found have traces of a drug, and those who make an “admission” to using or possessing a controlled substance in the past five years. The meaning of “admission,” however, is not defined.

Schumer’s office was unavailable for comment. One thing is clear, though: the senator’s legislation would prohibit a lot more innocent-until-proven-guilty people from possessing firearms.

A little more than 1,600,000 people were arrested in 2009 on drug violations, according to statistic from the Federal Bureau of Investigations. About half of those people were arrested on marijuana charges, with simple drug possession — rather than sale or manufacturing — accounting for nine-tenths of those collars, according to Reason magazine. It’s those last set of figures that could very well rally two groups most people might consider odd bed-fellows: pot-smokers and firearms enthusiasts.

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  • steve001968

    This is why ANY instant check is a very bad idea. As soon as you have to ask governmental permission to exercise a right, it is no longer a right. It’s been quite clear for some time that the post Heller gun control strategy is to simply gradually increase the classes of prohibited persons. That is what this bill seeks to accomplish. We have already added numerous classes of people who have never had the opportunity to be tried before a jury of their peers, including the allegedly, at least according to someone, mentally ill and those subject to restraining order, issued by a judge, not a jury. Now it’s to be people arrested for drug possession. Next it will be anyone arrested for anything at all and the prohibition will become permanent instead of 5 years. While they are at it they will add people on the beaurocrat controlled, due process lacking, terrorist watch list, like the late Ted Kennedy, which has already been proposed. The instant check is utterly worthless for stopping any determined prohibited person anyway because it relies on easily counterfeited ID. The only people it inconveniences or will ever inconvenience are those unwilling to break the law by using fake ID to beat it. There is no evidence whatsoever that instant check has reduced crime in the slightest. It’s time to scrap it before it is abused any more than it is now.

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  • Kroten69

    Funny how conservatives are only unhappy when the abuse of the Constitution that they put in play is now applied to them. Where were your complaints when the 4th Amendment was scrapped so you could punish those ‘hippies’ for personal, consentual choices in the War on Drugs? Those ‘hippies’ should give up their drugs and you should give up your guns, right? Or maybe we should ALL live free. Unfortunately when you make up rules to restrict other people’s liberty it’s only a matter of time before those rules are used against you. Welcome to the police state that you allowed social conservatives to put in place.
    End the War on Drugs so we can all live free.

    • jawin

      No problem. When drug use is legal, we freedom loving gun owners will end up shooting you freedom-loving drug users when you try to break into our homes and steal from us. Drug use will drop, with a consequential dropin crime.

    • kingfish

      Your comment doesn’t compute: “Conservatives are only unhappy when the abuse of the Constitution that they put in play is now applied to them.” What does that mean? We’re talking about the 2nd Amendment here. ALL amendments apply to everyone. The CIA has cornered the U.S. drug market since 1960, along with money-laundering, gun-running, and murdering people who got in their way. JFK intended to abolish them; they got HIM first!
      So the WAR ON DRUGS has been a BIG JOKE on Americans and their drug-hooked children since the first day it was founded.

    • steve001968

      This is the most half-witted attempt at logic I’ve seen in a while. The issue, obviously, is that an arrest, for anything, is not a conviction and in the US justice system doesn’t prove or even imply guilt. No deprivation of a constitutional right based solely on arrest will survive judicial test, although this legislation is DOA in the GOP controlled house anyway.

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  • BigRmv

    This is how the left plans to legalize all drugs: Make it a crime to be accused of drug possession and use that to deny our Constitutional rights. In turn, we’ll all say, “Fine, all drugs are legal. Now I can’t be accused of having an illegal drug on me.” California and the hippies will rejoice and smoke out.

    After that, we’ll slowly remove all penalties for all crimes based on the previously established pattern. Except–that is–the crimes of making a living or caring about the USA. Those offenses will be met with swift and sure punishment.

    Thousands of years from now, the barbarians who run the world won’t even know how they came to power.

  • votersofny

    Another idiot move to take guns away from legit people and then more bad guys will have them. Get rid of this dope in 2012 people. Obozo is a dolt.

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  • bigdave

    FROM A GOVERNMENT CLEARLY AFRAID OF THE POPULATION BECAUSE THE CRIMINALS, WHICH NOW MAKE UP THE GOVERNMENT KNOW “THE PEOPLE” ARE FINALLY CATCHING ON TO THEIR EVIL ATTEMPTS TO CONTROL EVERYONE AND REMAIN IN POWER. IT HAS NEVER BEEN MORE “IN YOUR FACE” THAT THE GOVERNMENT IS CORRUPT AND CONTROLS MOST OF THE MEDIA AND THE REST THEY WANT TO SHUT DOWN. THERE ARE NO MORE AMERICANS REMAINING IN THE DEMORAT PARTY! THEY ARE ALL EVIL EUROPEAN-STYLE LEFTISTS, COMMUNISTS AND PROGRESSIVES. IN THE END, STREET THUGS, SO COMMON IN SOCIALIST COUNTRIES, WILL BE THE ONLY ONES WITH GUNS. LOOK AT THE DISASTER IN AUSTRAILIA, THE EVIL LEFTSTREAM MEDIA WILL NOT REPORT ON…MASSIVE INCREASE IN BREAK-INS, THEFTS AND ATTACKS ON PEOPLE WITH NO WAY TO DEFEND THEMSELVES. THE FURTHER WE STRAY FROM OUR CONSTITUTION AND BILL OF RIGHTS, THE FURTHER LEFT WE GO, THE MORE WE LOOK LIKE UN-CONTROLLABLE EUROPE WHICH IS ABOUT TO GO DOWN TO CHARIA LAW. THE LIES AMERICANS ARE SUBJECTED TO ON A DAILY BASIS, COURTESY OF THE LEFTSTREAM MEDIA IS BEYOND COUNT. WE ARE BOMBARDED DAILY BY MIS-INFOMATION IN A DELIBERATE AND PURPOSEFULL ATTEMT TO ACCOMMODATE THE DISASTER CALLED OBAMA…TO FUNDAMENTALLY CHANGE THIS COUNTRY…INTO A SOCIALIST STATE. AND A WARNING TO HOLLYWOOD FOOLS…WHEN SOCIALISM FINALLY TAKES OVER…YOU WILL NOT LIKE WHAT YOU ASKED FOR, AND SOON YOU WILL CEASE TO EXIST…QUICK, NAME A RICH STAR FROM A SOCIALIST COUNTRY….WELL? CAT GOT YOUR TONGUE? IDIOTS.