Ian Ayres is a law professor at Yale University. Frederick Vars is a law professor at the University of Alabama.
Last week, in United States v. Hemani, the U.S. Supreme Court struck down a federal law that prohibited “unlawful users” of controlled substances from purchasing or possessing firearms. But left untouched was a separate provision of the 1968 Gun Control Act barring gun ownership by anyone addicted to a controlled substance.
That clear distinction matters. In its decision, the court twice emphasized that the law’s “disarmament of drug ‘addicts’ is not before us” so its decision has no impact on that provision. In doing so, the court rejected the government’s reliance on Founding-era “habitual drunkard” statutes as a sufficient constitutional analogue to support disarming users of unlawful drugs.
But these same statutes, which sought to regulate people whose addiction to alcohol caused them to lose “the power of self-control,” provide direct analogues to the disarmament of drug addicts.
There are good reasons for upholding the addiction standard even as the court struck down the ban on gun ownership for current drug users. Drug addicts are significantly more likely to perpetrate violence than the general population and have a much higher suicide rate. The National Institutes of Health estimates that 65 percent of the U.S. prison population has a substance-use disorder. According to the Bureau of Justice Statistics, 40 percent of violent offenders in state prisons were using drugs at the time of their offense.
Yet for all the evidence of a correlation between drugs and violence, the government has neglected existing tools to keep guns out of the hands of habitual users. Addicts without drug convictions are rarely added to the FBI database used by gun shops for background checks on buyers.
Millions of Americans are addicted to opioids, cocaine or methamphetamines. But as of May 31, only 6,169 people were identified on the FBI’s background check database as an “unlawful user or addicted to a controlled substance.” Nearly half the states reported fewer than 10 addicts on the list, including many heavily affected by the opioid crisis, such as Ohio and Kentucky.
People with drug-use disorders still end up on the list through other ways. Many addicts have been convicted of felonies, which provides an independent basis for adding their names to the database. But the millions of people with drug addictions who have never been convicted of a felony are free to buy weapons because their name is not on the FBI’s list. That includes Hunter Biden, whose pardon by his father, President Joe Biden, wiped away his felony conviction and freed him to buy a gun despite his history as a crack addict.
Keeping guns out of the hands of drug addicts does not mean criminalizing addiction or chilling someone’s willingness to seek treatment. Instead, states can report individuals to the database who participated in pre-trial diversion programs or survived overdoses. They should also report anyone who was involuntarily committed due to a substance-use disorder or admits to a government official they are addicted to a drug.
Adding habitual users to the FBI background check database has long-term benefits for public safety. Before the Supreme Court’s ruling, individuals characterized as unlawful users were removed from the list after just one year. But drug addicts can be forever barred from buying firearms due to the risk of relapse. Some studies have shown that heroin users who successfully complete detox programs have a relapse rate as high as 90 percent in the following year.
Still, a lifetime gun ownership ban requires due process. The Justice Department permits anyone subject to a federal gun restriction to petition to have their gun rights restored, provided they demonstrate they are not a risk to themselves or public safety.
To ensure states report drug-addicted residents to the FBI database, the federal government must provide incentives. After the 2007 Virginia Tech shooting, Congress passed legislation that requires reporting people with a history of severe mental illness a condition of federal grants. A similar policy could encourage states to report drug addicts.
The Supreme Court made clear that being a drug user alone can’t disqualify someone from owning guns. Being a drug addict is different. Policymakers have the tools to keep guns out of the hands of these habitual users. They must use them.
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