Under a proposed Senate bill, a person arrested, but not convicted, of a drug offense would be statutorily prohibited form owning a firearm. More details from the Daily Caller:
The [proposed] 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 . . . [T]he expanded background checks bill includes a “clarification of the definition of drug abusers and drug addicts who are prohibited from possessing firearms.” . . . [t]he 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.
In the Constitutionality of Social Cost (I just approved the first round of edits from the Harvard Journal of Law & Public Policy, it should drop this summer), I consider an actor’s propensity for harm as a factor to consider when depriving him of his constitutional right to keep and bear arms.
Historically, those deemed by society as having a high propensity for violence—namely those convicted of felonies—have suffered the fate of the deprivation of certain civil and political rights. Yet, although those accused of a violent crime maintain a presumption of innocence, the mere accusation places them on a different scale because their potential harm to society is weighed against their constitutional liberties. In violent crime cases, the Court recognizes that a defendant’s propensity for violence —a threat not yet cognizable, but derived from previous misconduct—may be used to place limitations on his freedom, so long as certain procedural rights are maintained. The Court has recognized that “[a] jury hearing evidence of a defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee.” Although juries generally are not allowed to consider this evidence, Judges are—and are just as likely to weigh the dangerousness of the actor when making certain decisions. The balancing of liberties and potential societal harm is most clearly seen in cases dealing with the right to bail and the right to a speedy trial. These threats, though latent, assume an air of criticality in light of the bad actor.
The article notes that the number of people convicted of mere possession offenses is quite high:
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.
Without passing any normative judgment about whether one who is convicted of a non-violent drug offense with no victims poses a threat of violence to others, I question the nexus between the mere arrest and propensity for harm with one who is not convicted. This standard seems to further detach the reason (posing a threat to others) why certain people are disarmed and unduly deny this fundamental constitutional right.
Beyond any Second Amendment issues, there are serious due process and presumption of innocence objections. Even the Brady Campaign has some critiques of this standard:
“It’s a concern we’ve raised about this proposal, too. I’ve got the same concerns,” said Paul Helmke, president of the Brady Campaign. “[There is] the whole innocent-until-proven-guilty concept coming into play here. So that alone is a legitimate concern.”