Orr v. Lean: Gun Control Must Balance Against Legal Rights

Although I am pleased my recent article started a conversation about gun control, Mr. Lean’s response is miles off target. My main objection to Senator Chuck Schumer's (D - NY) bill is that it throws due process out the window. Mr. Lean ignores that objection and comments mostly on why he thinks gun control is generally a good idea, specifically with respect to illegal drug users. I wish to make two additional points before expanding on the due process objection.

First, I do not think it is fair to treat users of illegal drugs differently from users of legal drugs with regard to gun rights. Although Mr. Lean finds it easy to condemn drug users to a life without certain legal protections, he does not explain why casual users of marijuana should not be allowed to own guns while heavy abusers of alcohol should be. After all, the common drunk is permitted to buy firearms to his heart’s content. Would Mr. Lean find it acceptable for the law to nullify the gun rights of anyone arrested for public drunkenness, or of anyone who fails a sobriety test?

Second, I fear that the results of Schumer’s bill would be profoundly inequitable in enforcement. It is no secret that the majority of drug arrests fall on racial minorities, particular blacks and hispanics. It is also no secret that law enforcement officers have a history of racial profiling, particularly with these two groups. Consequently, this law would disproportionately restrict the gun rights of some of America’s most vulnerable citizens. Because the law does not require a conviction before going into effect against an accused drug user, the potential for abuse is high.

One might think it is a good idea to prohibit illegal drug users from owning firearms, but I would not think it objectionable to require a conviction of a genuine crime before taking away a constitutionally protected right. As the bill stands, innocent people could be falsely arrested before the charges are dropped, but they would nevertheless be barred from owning a gun for five years. By analogy, that is akin to barring anyone arrested for drug crimes from voting in the next few elections.

If one were to follow Mr. Lean’s logic, that would be justified since we could not expect someone to vote responsibly after snorting a few lines of cocaine. In any other context, this disproportionate punishment — which does not require a trial, much less a conviction — is plainly absurd. Allowing legal punishments after a mere arrest, as Schumer's bill does, forsakes the rule of law and creates problems far outside the sphere of gun ownership.

Photo CreditWikimedia Commons


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Jason Orr

Jason is a student at Harvard Law School and writes on legal and policy issues. A 2009 graduate of the College of William and Mary, he worked at the Institute for Justice in Arlington, Virginia, before reentering academia. Jason's views have been published in a number of print and online news outlets, including the Washington Post and the Daily Caller.

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