התמלול המלא של Should Drug Users Be Allowed to Own Firearms?

and the split decisions of the 5th and 8th Circuit Courts. 00:00:45.680 --> 00:00:48.360 stop audio Kari Still: Is there anything else you'd like to share about yourself and your expertise before we get started? Start audio 00:00:53.___ --> 00:01:18.439 Matthew Osborn: This is a topic I was went to graduate school to study. I've always been fascinated by the idea that alcohol has a history. The way that we interact with alcohol has really changed dramatically over time. People used to drink a lot more than they do now. So I've always been fascinated by this questions of how those changes happen over time and and the implications of that. 00:00:48.360 --> 00:00:48.700 Tim Carey: Dr. Mcginty is the Livingston Ferran, Professor of Public Health, and chief of the division of Health Policy and Economics at the Whale Cornell Medical College. 00:00:48.700 --> 00:00:52.120 Tim Carey: Officers smelled marijuana, and then searched his car. 00:00:52.300 --> 00:00:52.920 Tim Carey: In doing so the officers found marijuana cigarette butts in his ashtray, along with a loaded 9 pistol and semi-automatic rifle. 00:00:52.920 --> 00:00:55.000 .___ stop audio Kari Still: We'll be later joined by an expert historian ... Start audio 00:00:57.320 --> 00:01:02.520 stop audio Kari Still: and a public health researcher to help us parse through all the nuances at play. In these cases. Start audio 00:01:06.920 --> 00:01:09.669 Tim Carey: to start off. Let's cover some background. 00:00:55.540 --> 00:00:58.480 Kari Still: according to the Pew Research Center, as of February 2024, 24 States, plus the District of Columbia, have legalized marijuana for recreational use, while another 14 States have legalized it for medical use only. Start audio 00:04:58.970 --> 00:05:05.570 Tim Carey: But note this action, if approved by the drug enforcement agency after public comment, will not 00:00:58.480 --> 00:01:01.090 Tim Carey: She conducts research, focused on how health policies affect populations with complex health and social needs, including people experiencing mental illness, substance, use, disorder, chronic pain, and others. She's also looked at research on controlled substance, use and violence risks specifically through the lens of the Federal law at issue today. 00:01:01.090 --> 00:01:01.930 Tim Carey: After being taken into custody, Daniels admitted to using marijuana regularly since high school 00:01:01.930 --> 00:01:06.700 Tim Carey: The history of regulating fire and possession tied to unlawful controlled substance. Use and addiction is also muddled by a whole host of factors ranging from the complex historical relationship between alcohol and early Americans, absence of controlled substances in early America, and the increasing availability of controlled substances after the Civil war, and during the rise of the pharmaceutical industry, the failure of prohibition, and so much more. 00:01:06.700 --> 00:01:09.190 Tim Carey: approximately half of the days each month. 00:01:09.630 --> 00:01:10.210 stop audio Tim Carey: though he never was drug tested by law enforcement, or observed as being intoxicated during or after the traffic stop. Start audio 00:01:27.840 --> 00:01:43.860 stop audio Kari Still: So Daniels was charged with the Federal law against gun possession by unlawful users of controlled substances, and then moved to dismiss his indictment before his trial, and in a decision issued right after the Supreme Court, decided Bruin, the District Court, in his case, rejected his challenge and upheld the law Start audio 00:02:14.240 --> 00:02:19.719 Kari Still: Daniels was then convicted by a jury for violating the law before appealing his conviction to the 5th circuit. 00:01:10.210 --> 00:01:16.289 Tim Carey: The Federal law at issue today was adopted in 1,968 as a part of the Federal Gun Control Act. 00:01:16.450 --> 00:01:19.160 Tim Carey: known as 18 Usc. Section 9, 22 g. 3. The law prohibits any person who is an unlawful user of, or addicted to, any controlled substance from possessing a firearm or ammunition. 00:01:19.160 --> 00:01:19.660 Tim Carey: And that leads really neatly, Matthew, into our general table setting question. 00:01:19.660 --> 00:01:21.679 Tim Carey: Beth, thank you so much for joining us. 00:01:22.400 --> 00:01:23.460 Beth McGinty: Thanks for having me. 00:01:24.330 --> 00:01:24.850 Tim Carey: So, Beth, in addition, that preamble, is there anything else you'd like to say about your interest or expertise in this area before we get started? 00:01:24.850 --> 00:01:28.590 Tim Carey: You've spoken about alcohol. You're a expert on historical use of alcohol in the early Americas. And the law we're talking about today has to do largely with controlled substances and specifically accepts alcohol from its regulation. So early question, I'd like to ask you is, why is our nation's historical treatment of alcohol important 00:01:28.590 --> 00:01:30.750 stop audio Tim Carey: While some States regulate the combination of guns and alcohol consumption in varying capacities. We don't have Federal legislation that regulates gun possession by heavy alcohol consumers in the same way that we deal with people who unlawfully use are addicted to a wide array of controlled substances and given our conversation today that seems like an oversight. Start audio 00:02:03.400 --> 00:02:15.480 Kari Still: And it's yet to be clear what impact the Supreme Court's decision in Rahimi will have on these challenges going forward. As we mentioned earlier, the circuit split resulting from Daniels and Beasley hasn't been resolved yet. 00:01:30.750 --> 00:01:32.570 Tim Carey: Controlled substances include, but are not limited to certain opioids, stimulants, depressants, hallucinogens, and antibiotic steroids. 00:01:32.570 --> 00:01:40.030 stop audio Beth McGinty: Well across all of those interest areas that you raised, and very pertinent to the topic of our conversation today I have always been intrigued by

studying how really complicated public health issues, like the relationship between substance, use and violence can be translated into policy that actually goes on to benefit the public. Start audio 00:02:12.479 --> 00:02:21.209 Kari Still: which leads me to ask you, Beth, are individuals who are unlawful users of, or addicted to controlled substances at risk of violence. 00:01:40.030 --> 00:01:43.309 Tim Carey: It does not include alcohol or tobacco. 00:01:43.870 --> 00:01:46.410 stop audio Tim Carey: An unlawful user or addict of a controlled substance is defined generally to include either a person who is currently using a controlled substance in a manner not prescribed by a physician or a person who is using a controlled substance, who has lost the power of self control in relation to the controlled substance. Start audio 00:02:08.520 --> 00:02:17.770 Kari Still: And someone may qualify as an unlawful user under this law, even though they may not be using or consuming the substance at the precise time that they possess the firearm. 00:01:46.410 --> 00:01:50.360 stop audio Tim Carey: in the context of understanding how both alcohol and controlled substances were or weren't regulated, based off perceived risks of danger associated with their use. Start audio 00:04:25.___ --> 00:04:32.529 stop audio Matthew Osborn: In the 19th century alcohol was seen as causing all sorts of social and economic problems. Start audio 00:04:32.570 --> 00:04:40.519 Matthew Osborn: In the 20th century the problems of alcohol were reduced to just the individual struggle with alcoholism. 00:01:50.360 --> 00:01:56.690 stop audio Kari Still: Is there any evidence that these different substances may have differing risks of violence associated with them. Start audio 00:05:33.460 --> 00:05:44.979 Beth McGinty: Yeah, this is an important consideration, because it is quite plausible that different substances do have different risks of violence, and we know that they do at the individual. 00:02:05.590 --> 00:02:08.799 stop audio Tim Carey: what is the significance of these terms in this conversation? Start audio 00:00:06:22.__ --> 00:06:37.970 Beth McGinty: The reason I'm emphasizing this, like individual individual, is, we see these effects on violence. In, you know, small case studies of of patients, often in the healthcare system who are 00:02:15.550 --> 00:02:17.980 Kari Still: After Rahimi the Supreme Court sent Daniels back to the 5th circuit to be reconsidered in light of its ruling. 00:02:17.980 --> 00:02:21.670 Kari Still: An inference of current use may be drawn from evidence of a person's recent use, possession or pattern of use of the controlled substance to qualify. 00:02:21.670 --> 00:02:22.310 Tim Carey: Which it absolutely should. The Daniels Court relied way too heavily on the 5th Circuit's Rahimi opinion that the Supreme Court trashed earlier this summer. 00:02:22.310 --> 00:02:23.330 Beth McGinty: This is a big question, and I'm going to give you a

multi-part answer to it. 00:02:23.330 --> 00:02:27.050 Tim Carey: is whether this law, prohibiting firearm possession by people who are unlawful users or addicts of controlled substances is unconstitutional as applied to Daniels, a nonviolent habitual user of marijuana. 00:02:27.050 --> 00:02:31.040 stop audio Tim Carey: And note that this should not be confused with the Federal law that makes it unlawful to possess a firearm and furtherance of drug trafficking offenses such as drug deals. The law we're discussing today focuses solely on the use of controlled substances. Start audio 00:02:43.___ --> 00:02:44.990 Tim Carey: But to better understand 00:02:31.040 --> 00:02:31.640 Beth McGinty: the short answer is that when we think about 00:02:31.640 --> 00:02:37.640 Kari Still: And Beasley is petitioning the Supreme Court to review the 8th Circuit's decision in his case, though the Court may likely deny that petition or send it back to the 8th circuit to reconsider in light of its ruling in Rahimi as well. 00:02:37.640 --> 00:02:37.970 Beth McGinty: whether people who use controlled substances are at risk of violent behavior. We are usually thinking, does ingesting that substance lead to physical and psychological effects that cause? 00:02:37.970 --> 00:02:41.859 stop audio Kari Still: And the court essentially said Yes, as applied to Daniels, at least. Start audio 00:04:06.560 --> 00:04:11.120 Tim Carey: Before going further, we can recap the tests being applied by the courts here. 00:02:45.140 --> 00:02:45.970 stop audio Tim Carey: how the Federal Law works. We 1st have to also discuss the Controlled Substances Act. Start audio 00:02:51.420 --> 00:03:03.170 stop audio Tim Carey: originally passed in 1,970, the Controlled Substances Act establishes Federal drug policy for the regulation of drug manufacture, importation, possession, use and distribution. Start audio 00:03:06.070 --> 00:03:18.059 Kari Still: And to be clear, the Federal Government did regulate controlled substances before this time, but the Controlled Substances Act really centralized the regulation of controlled substances into a single uniform statute. 00:02:45.970 --> 00:02:53.910 stop audio Kari Still: So without clear guidance from the Supreme Court. Yet in this context several questions come to mind as to how other courts will continue to evaluate challenges to this law going forward. Start audio 00:03:00.060 --> 00:03:14.059 stop audio Kari Still: One question is whether the Supreme Court's prior Second Amendment decisions, emphasizing that the Second Amendment right is one that protects law abiding responsible citizens will be used in any way to help with evaluating this law and future challenges. Start audio 00:03:25.000 --> 00:03:34.400 stop audio Kari Still: if law-abiding people are covered by the text, unlawful users aren't acting lawfully when consuming controlled substances by their very definition. Start audio 00:04:00.330 --> 00:04:15.780 Tim Carey: We also

heard from Beth that some of the risk of violence tied to illicit substance use can also come from engaging in the market necessary to acquire them as opposed to just the consumption of the substances themselves, which could be relevant to the legal analysis here 00:02:53.910 --> 00:03:06.129 Beth McGinty: And the answer to that question is that the best available evidence suggests? The answer is, no, not at a broad population level. 00:03:07.650 --> 00:03:16.240 Beth McGinty: The caveat is that there are other pathways by which substance use can lead to violence. 00:03:16.290 --> 00:03:18.530 Beth McGinty: particularly involvement in illegal drug markets. If you are someone who is using a substance that is illegal in order to obtain that substance, you have to engage in some way with an illicit market, and illicit markets tend to be violent places, and so people who are using substances are exposed to violence. 00:03:18.530 --> 00:03:25.700 Tim Carey: Yes, and notably the act specifically accepts as I've alluded to before, distilled spirits, wine, absinthe, malt beverages, nicotine, or tobacco from the drug Enforcement Administration's regulations. 00:03:25.700 --> 00:03:32.870 Tim Carey: There was, though, an uncomfortable cross-reference to the 5th Circuit's Rahimi opinion, where they note that more than just model citizens enjoyed the right to bear arms, referencing Zaki Rahimi 00:03:32.870 --> 00:03:37.570 Tim Carey: Those have been shuttled off to the Bureau of Alcohol, Tobacco firearms and explosives. 00:03:38.530 --> 00:03:38.920 Tim Carey: The Controlled Substances act categorizes all substances regulated by Federal law into one of 5 categories called schedules. 00:03:38.920 --> 00:03:41.759 Tim Carey: which did not age terribly well. 00:03:42.060 --> 00:03:42.370 stop audio Beth McGinty: and that can lead to them engaging in violence themselves. So there is a pathway by which illicit substance use is associated with increased risk of violence. But it's that market pathway as opposed to the ingestion. Start audio 00:04:09.200 --> 00:04:18.680 Kari Still: does the involvement in the illicit market context, distinguish habitual users from those that just occasionally use controlled substances. 00:03:42.370 --> 00:03:45.275 Kari Still: No, did not go well for them at the Supreme Court. 00:03:46.550 --> 00:03:47.140 Tim Carey: The court then considered whether this challenge merits the more nuanced approach of analogizing for unprecedented societal problems, and concluded that it does. 00:03:47.140 --> 00:03:56.510 Tim Carey: These schedules are decided by 3 main metrics, first, st the potential for abuse, second, accepted medical use and 3rd risk of psychological or physical dependence. 00:03:56.510 --> 00:03:59.310 Tim Carey: They claim that the founders understood hemp a byproduct of marijuana 00:03:59.310 --> 00:04:01.620 Tim Carey: the more accepted for medical use and the lower the potential for abuse and dependence. They

are the lower. The drug is scheduled. 00:04:01.620 --> 00:04:05.010 Tim Carey: to be used as rope, not as an intoxicant. 00:04:05.030 --> 00:04:06.590 Tim Carey: even though in doing so they only cited 00:04:06.590 --> 00:04:07.930 Tim Carey: for instance, common examples of schedule. One drugs, the most severely regulated 00:04:07.930 --> 00:04:11.220 Tim Carey: one sentence from one historical journal from 1776. 00:04:11.220 --> 00:04:12.000 Tim Carey: as we've said before, after Bruin courts are required to apply a two-step framework in evaluating second amendment cases. 00:04:12.000 --> 00:04:13.670 Tim Carey: are heroin ecstasy. And Lsd, while common examples of schedule, 5 drugs are some cough medicines. 00:04:13.670 --> 00:04:14.710 Kari Still: Wow. 00:04:15.700 --> 00:04:16.329 Tim Carey: Yeah, so. 00:04:16.329 --> 00:04:16.430 Tim Carey: which leads us to yet another question. 00:04:16.430 --> 00:04:17.260 Kari Still: Great support there. 00:04:17.260 --> 00:04:18.890 stop audio Tim Carey: That is a historical source. Start audio 00:05:16.280 --> 00:05:22.570 Kari Still: So the Government offered 3 categories of laws for the court to use as analogies to the law at issue in the case. 00:04:18.890 --> 00:04:18.940 Tim Carey: At the 1st step the court must evaluate the plain text of the Second Amendment, essentially seeing if the law at issue implicates the second amendment at all. 00:04:18.940 --> 00:04:18.959 stop audio Beth McGinty: It can. If you're a habitual user. There is an increased likelihood that you are running in to violent situations related to an illegal market. Because you're engaging with that market more frequently as opposed to habitual use, there's just less potential exposure. So habitual use in that context could increase risk of violence along this market pathway. Start audio 00:13:04.100 --> 00:13:11.630 Tim Carey: Now, and your response makes me think of some other potential points. Because This Federal law was passed decades ago. 00:04:18.959 --> 00:04:19.769 Tim Carey: what historical principles could be used to uphold this law? After the clarification given in Rahimi. 00:04:19.769 --> 00:04:24.070 stop audio Tim Carey: higher scheduled drugs also come with more severe criminal penalties. Start audio 00:00:47.680 --> 00:00:55.340 Kari Still: and notably marijuana, is still considered a schedule, one substance, despite the growing medical application of cannabis in modern day. 00:04:25.280 --> 00:04:27.450 stop audio Tim Carey: Rahimi recognized the ability to temporarily disarm people who pose a danger to others, though it left the door open for other historical principles to be identified down the line. Start audio 00:04:43.410 --> 00:04:56.120 stop audio Tim Carey: and rising out of our conversation with Matthew potential other principles for regulating substance use could be to maintain social order or maintain a virtuous citizenry. Given what we heard about the focus of the founders. Start audio 00:04:59.610 --> 00:05:06.340 Tim Carey: It could potentially have credence. But it's not yet recognized by the Supreme Court, so there's no telling how valid it will be. 00:04:27.450 --> 00:04:39.150 Tim Carey: and if it does, then courts move to the second step, where they see if the lot issue fits within the regulation they're seeing. If the lot issue fits within the nation's history and tradition of firearms regulation. 00:04:39.540 --> 00:04:41.670 Tim Carey: After the Supreme Court's opinion in Rahimi this summer. 00:04:41.670 --> 00:04:42.880 Matthew Osborn: But drugs took on the role that alcohol used to have in the 19th century. ... Start audio 00:05:36.___ --> 00:05:42.940 Matthew Osborn: The alcohol industry in the 19 thirties was set out to make sure the prohibition never happened again. 00:04:42.880 --> 00:04:53.580 Tim Carey: courts are further instructed to use a more generalized principles, approach in identifying traditions of regulation, so, instead of looking at laws and isolation and striking them down, they are instead guided to look at laws in totality, to see how they may interact with each other to evidence a broader tradition. 00:04:53.580 --> 00:05:02.850 stop audio Matthew Osborn: At the same time that reefer madness is is creating anxiety about this demon drug. Marijuana, marijuana became the demon drug that alcohol used to be. Start audio 01:00:26.920 --> 01:00:32.120 Matthew Osborn: So when I teach the history of alcohol and drug use, I talk about 00:05:02.850 --> 00:05:05.660 Kari Still: Though it's worth noting here that neither Daniels nor the other Circuit Court decision that we're discussing today had the benefit of the Supreme Court's more recent guidance in its Rahimi decision. 00:05:05.660 --> 00:05:06.930 Tim Carey: decriminalize marijuana outright. 00:05:06.930 --> 00:05:08.170 .___ stop audio Kari Still: And another consideration is what to expect with other as applied challenges that might be brought. Start audio 00:05:18.590 --> 00:05:28.459 stop audio Kari Still: It's very possible that, as applied challenges will bring up further considerations about whether one's usage of a particular controlled substance creates a risk for dangerousness. Start audio 00:05:38.020 --> 00:05:46.729 stop audio Kari Still: we can imagine the difficulties courts may have as they attempt to navigate these considerations and apply Bruin on a case by case drug by drug basis. Start audio 00:06:19.460 --> 00:06:30.689 stop audio Tim Carey: And while we aren't suggesting that Congress should amend this law, now, our conversation today at least raises some avenues for future exploration of the different nuances and complexities, this law presents. 00:05:08.170 --> 00:05:08.930 stop audio Tim Carey: Rather it allows for some legal use of marijuana. For example, if it is prescribed by a pharmacist. Start audio 00:05:24.690 --> 00:05:28.100 Kari Still: that's a lot of drugs being regulated under this law.

00:05:08.930 --> 00:05:09.930 Start audio 00:06:36.100 --> 00:06:46.519 stop audio 00:05:09.930 --> 00:05:10.930 Kari Still: and reflecting on our conversation earlier with Beth, it seems that additional public health research may help us better understand the risks involved in regulating users of various controlled substances. 00:05:11.930 --> 00:05:12.800 [Insert transition music] 00:05:12.800 --> 00:05:13.930 Kari Still: that guidance being for courts to consider the principles underpinning a regulatory tradition as part of Bruin's historical analysis, step. 00:05:13.930 --> 00:05:14.450 Start audio 00:07:00.860 --> 00:07:02.940 00:05:14.450 --> 00:05:14.930 .___ stop audio Matthew Osborn: No, I'm sure. And it I mean case books and history history books, too. No, this is not well understood. Start audio 00:06:17.190 --> 00:06:21.909 Tim Carey: It's that there's a connection between how alcohol and 00:05:14.930 --> 00:05:15.930 Tim Carey: What a ride. 00:05:21.140 --> 00:05:22.990 stop audio Tim Carey: And the Daniels Court definitely could have benefited from that later guidance. Start audio 00:03:11.230 --> 00:03:25.249 Tim Carey: With this being said, the court 1st held that Daniels was covered by the plain text of the Second Amendment, because they consider marijuana users to still be part of the political community, IE. The people that the second amendment covers. 00:05:22.990 --> 00:05:28.660 Kari Still: The 1st category were historical statutes that disarmed intoxicated individuals. The second category were laws that disarmed mentally ill, or those that were seen to be insane, and the 3rd category were historical laws that disarmed those that were deemed to be dangerous or disloyal. 00:05:28.660 --> 00:05:29.490 Tim Carey: Yes. 00:05:31.950 --> 00:05:40.320 Tim Carey: but this also leads us to a potential controversy over this Federal law at issue. This law bears an important difference from other laws. We've discussed on this podcast so far, unlike firearm purchaser licensing or prohibitions on firearm possessions for people, subject to domestic wants, protective orders 00:05:40.320 --> 00:05:43.060 Tim Carey: Though in a now taboo fashion. After Rahimi, the courts analyzed and dismissed all these laws in isolation, missing out on the larger tapestry of regulation that they could weave if looked at together. 00:05:43.060 --> 00:05:45.570 Matthew Osborn: and the way they did that was by creating an a separation between 00:05:45.570 --> 00:05:48.910 Beth McGinty: so substances that inhibit active and violent behavior often called Downers in the slang are things like heroin or other opioids, although withdrawal from those drugs can in some cases motivate violent behavior. Cannabis also int cannabis also typically inhibits violent behavior. 00:05:48.910 --> 00:05:49.740 .___ stop audio Matthew Osborn: legal alcohol and illegal drugs. Start audio 00:06:35.170 --> 00:06:44.140 Matthew Osborn: So the alcohol industry, for instance, was a huge supporter of dare. 00:05:49.740 --> 00:05:52.610 Tim Carey: which are wholly defensible, and evidence informed 00:05:52.640 --> 00:05:54.990 stop audio Tim Carey: the Federal law prohibiting firearm possession by unlawful users of controlled substances, is possibly both over and under inclusive in scope. In other words, the law may apply to some people doesn't need to while missing others that it should cover. Start audio 00:06:17.000 --> 00:06:26.530 stop audio Tim Carey: For instance, marijuana is currently a schedule, one drug, as Carrie mentioned. But there are genuine questions over the risks of violence posed by marijuana users. Start audio 00:06:18.440 --> 00:06:26.410 Tim Carey: However, the law also covers substances that pose potential risks of danger, such as heroin, cocaine and methamphetamine 00:05:54.990 --> 00:06:11.319 Tim Carey: Also of note in this case was a concurring opinion by Judge Higginson, where he claimed that the uncertainty and chaos wrought by Bruin required him to agree with the majority, essentially forcing his hand to sign on to a decision that he may not agree with from a legal perspective. 00:06:11.750 --> 00:06:13.790 Tim Carey: Higginson concluded his concurrence with a list of questions that the Supreme Court must resolve to make Bruin workable? These are the same questions that were reiterated by Justice Jackson and her Rahimi concurrence when the court neglected to resolve them. 00:06:13.790 --> 00:06:22.000 .__ stop audio Beth McGinty: Other types of drugs, like stimulants, methamphetamine, for example at the individual level can increase violent behavior. Start audio 00:02:00.870 --> 00:02:05.259 Tim Carey: Beth, you've mentioned both population and individual level data. Now. 00:06:22.270 --> 00:06:24.660 Tim Carey: controlled substances were regulated. 00:06:24.720 --> 00:06:26.420 Tim Carey: in part because of how they had different perceptions in society. Different political lobbying efforts, all kind of came together to lead to these different legal distinctions we see today. Start audio 00:07:22. --> 00:07:31.810 Kari Still: Take us back to the days of our founding fathers, so, generally speaking, did like the founding era, regulate alcohol in the way that they're regulated today. 00:06:26.420 --> 00:06:27.560 Tim Carey: and others. 00:06:27.570 --> 00:06:29.830 Tim Carey: And, what's more, the law specifically accepts alcohol from the prohibition list, despite the strong evidentiary ties between alcohol misuse and violence which could honestly be a whole episode in itself. 00:06:29.830 --> 00:06:37.970 stop audio Tim Carey: In a way this could be viewed as one of the highest profile canary in the coal mine opinions, Post Bruin raising the alarm to others about how dangerous the lack of clarity in this test is. Start audio 00:06:18.460 --> 00:06:21.___ stop audio Kari Still: So Daniels petitioned the Supreme Court to review his case. Start audio 00:06:26.870 -->

00:06:41.270 Kari Still: Daniels was one of those cases, though, that the Supreme Court granted review of and sent back to the lower court, here, being the 5th circuit, to decide this case again in light of its decision in Rahimi and the guidance it provided there for lower courts to use. So 00:06:37.970 --> 00:06:41.450 Beth McGinty: using these substances, it is by no means a universal scenario where every single patient who uses. One of these drugs is observed behaving violently in these healthcare system studies. But we do see some increased potential for risk there 00:06:41.450 --> 00:06:42.120 .___ stop audio Kari Still: Yeah. And with this potential contention that you've laid out, Tim, let's now evaluate how courts are dealing with it in the Second Amendment context, especially as they're being. Start audio 00:06:50.410 --> 00:06:55.560 Kari Still: especially as courts are applying Bruin's new history-driven test to these cases. 00:06:42.120 --> 00:06:44.783 Kari Still: now the case is back in the 5th circuit the parties were ordered, and have filed supplemental briefs in the case. So Tbd. Whether the panel's decision is going to change in light of Rahimi. 00:06:44.783 --> 00:06:51.500 stop audio Matthew Osborn: The anti drug use. And again, it's to reinforce this separation between legal alcohol and demon illegal drugs that are bad. Start audio 00:40:05.___ --> 00:04:53.239 Matthew Osborn: So it's not an accident that alcoholics anonymous is founded in the 19 thirties. 00:06:51.500 --> 00:06:54.120 stop audio Tim Carey: Yeah. Tbd, indeed. Start audio 00:07:25.800 --> 00:07:31.900 stop audio Tim Carey: Honestly, but this case only gets us halfway there. There's still the 8th circuit to consider. Start audio 00:07:01.520 --> 00:07:10.979 stop audio Kari Still: Yeah, here's our circuit split. So earlier this year, the 8th circuit was presented with a similar second amendment challenge to this federal law. But this time it was a facial challenge. Start audio 00:07:50.990 --> 00:08:00.700 Kari Still: so the 8th Circuit had to consider whether this Federal law on gun possession by unlawful users of controlled substances, was unconstitutional in all of its applications. 00:06:55.840 --> 00:06:56.110 Beth McGinty: in public health studies, though where what we really want to know is at a population level does use of these different kinds of substances increase risk of violence, because that's where we want to make. Policy is based on what happens at the population level. 00:06:56.110 --> 00:07:02.500 Tim Carey: And we should note that we are not aware of any courts that have struck down this Federal law 00:07:02.780 --> 00:07:03.270 stop audio Tim Carey: on Second Amendment grounds before Bruin, but much like every other area of the Second Amendment, much has changed. Post Bruin. 00:07:03.270 --> 00:07:11.460 Tim Carey: So that's the Federal law prohibiting fire and possession by people unlawfully using or addicted to controlled substances, as showcased by the circuit split with Daniels and Beasley 00:07:11.460 --> 00:07:13.540 stop audio Beth McGinty: The evidence is just very, very limited. The studies have small sample sizes, and we don't have the kind of big, longitudinal population level studies that we need to answer your question. Start audio 00:07:36.___. --> 00:07:42.800 Kari Still: We do have a lot of gaps in this area. And our understanding of the risks associated with controlled substances and violence. 00:07:13.540 --> 00:07:17.000 .___. stop audio Tim Carey: at 1st brush the law appears to be both over and under, inclusive in scope. Start audio 00:07:25.150 --> 00:07:32.149 Tim Carey: implicating people who may not pose risks of danger to themselves or others, while leaving out those that we know who do 00:07:19.520 --> 00:07:26.380 Tim Carey: but as of recording this episode, still, the vast majority of courts have upheld the Federal law at issue 00:07:27.270 --> 00:07:32.230 Tim Carey: out of 6 Federal Circuit Court cases only one has held the law unconstitutional as applied to a specific defendant, and out of dozens and dozens of District court cases only 3 have found the law to be unconstitutional 00:07:32.230 --> 00:07:32.740 Tim Carey: that is, unless courts recognize other historical principles of firearms, regulations such as the need to maintain social order. 00:07:32.740 --> 00:07:40.290 Matthew Osborn: No, no, they absolutely did not. But they recognized in the 18th century that it was an enormous problem. Start audio 00:08:31.960 --> 00:08:38.259 Matthew Osborn: So when you look at like medical writings in the 17th century. Like early 17th century. 00:07:40.290 --> 00:07:42.290 Kari Still: And as we've highlighted before the Controlled Substances Act covers a lot of substances, and those substances could impose varying degrees of risk or dangerousness, and notably the Federal regulations, also admit alcohol, which we know has clear ties to dangerous behavior. 00:07:42.290 --> 00:07:42.860 stop audio Tim Carey: under the second amendment. So, though slightly dicier than before, Bruin still courts are largely coming together for this law. Start audio 00:08:10.470 --> 00:08:29.289 stop audio Kari Still: But today we're going to be calling special attention to that one Circuit Court decision that Tim mentioned a case out of the 5th Circuit Court of Appeals, called United States versus Daniels, which broke rank with the rest of the Federal circuits by deeming that this law was unconstitutional, as the law applied to the particular defendant challenging his conviction. In that case Start audio 00:08:34.669 --> 00:08:48.250 stop audio Kari Still: We'll be covering this decision in a bit more detail later on. But the 5th Circuit's decision here is worth highlighting because it created this circuit split, and it distanced itself from the vast number of other courts that have addressed similar challenges to this law. Start audio 00:08:34.830 -->

00:08:39.319 stop audio Tim Carey: Which, again, is not terribly surprising. Knowing that this circuit. 00:07:42.860 --> 00:07:44.290 Kari Still: so are there opportunities for us to conduct further research into this, and understand any connection or correlation that there might be between substance uses and a propensity to commit violent acts. 00:07:44.290 --> 00:07:45.290 Start audio 00:08:57.020 --> 00:09:03.240 00:07:45.290 --> 00:07:46.290 Tim Carey: this laws also received a lot of media attention. Following the indictment of the current president's son. 00:07:56.710 --> 00:07:58.130 Tim Carey: There's also a great need for further research in this area. 00:07:58.130 --> 00:08:00.130 Beth McGinty: Yeah, there are definitely opportunities for more research, though I do want to highlight that this research is really challenging to do for some reasons that I will attempt to illuminate and those these challenges are part of why, the research we currently have is limited. You know. So to do this research well, and to really understand 00:08:00.130 --> 00:08:02.070 Tim Carey: More studies on connections between unlawful controlled substance, use and addiction is critical to informing the practical implications of this law on society 00:08:02.070 --> 00:08:09.180 Kari Still: Going to the facts of this case, Weasley was arrested after shooting at his drug dealer after the drug deal went south, he was charged with and pled guilty to possessing a firearm while being an unlawful user of a controlled substance under that law. 00:08:09.180 --> 00:08:12.149 stop audio Tim Carey: as well as our constitutional legal analysis. Start audio 00:08:25.780 --> 00:08:29.480 Tim Carey: Ultimately we want laws that we know will protect people. 00:08:14.710 --> 00:08:21.499 Kari Still: Yet it's not clear what controlled substance qualified for his underlying, charging conviction. In this case. 00:08:21.880 --> 00:08:24.010 Tim Carey: Yeah, the facts were very scant, and that was likely, because this incident implicated minors and the legal system has greater degree of confidentiality for young offenders for a host of reasons. Thus we're left to largely speculate here. 00:08:24.010 --> 00:08:29.520 Beth McGinty: whether and how there's a causal relationship between substance use and violent behavior. We need to follow large groups of people forward over time, so that we can figure out, does substance use come before violence? 00:08:29.520 --> 00:08:34.179 stop audio Tim Carey: and sometimes that means reevaluating where we've come to Reorient, where we go. Start audio 00:08:58.540 --> 00:09:15.149 stop audio Kari Still: So we've left you all with a lot to think about in relation to the Second Amendment. Challenges being brought to this Federal law, we will continue to follow these cases and any public health research that may evolve in this area. But in the meantime, thank you for listening to sufficiently analogous. Your 1st stop for thoughts on the Second Amendment. Credits and outro music Kelly Roskam: Sufficiently Analogous is a podcast from the Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health. Produced by Tim Carey, Joe McHugh, Kelly Roskam, and Kari Still. Audio production from Matthew Martin, Philip Porter, and Holly Cardinell. Distribution and social media by Shakun Kashal. 00:08:37.990 --> 00:08:38.659 Tim Carey: but that leads us to the case. History. 00:08:38.659 --> 00:08:40.580 Matthew Osborn: they talk about problematic drinking as being very similar to overeating. Over drinking and overeating were basically the same thing. And that's because people were drinking 00:08:40.580 --> 00:08:44.590 Tim Carey: Shortly after his conviction the Supreme Court issued its decision in Bruin, which, as we well know, turned all second Amendment law on its head. 00:08:44.590 --> 00:08:49.200 Beth McGinty: What other factors, like health conditions or socioeconomic factors are at play in that individual's life that could influence either substance, use, or violence. We sort of need to know everything about a really large group of people and follow them over time, so that we have longitudinal data that will allow us to establish a relationship between substance use and possible violence. 00:08:49.200 --> 00:08:49.730 Tim Carey: Weasley then attempted to withdraw his plea, or alternatively requested the District Court to dismiss the indictment against him on the grounds that the Federal law against firearm possession was unconstitutional. Under Bruin's new history, focused test. 00:08:49.730 --> 00:08:54.490 Matthew Osborn: low alcohol content, fermented beverages as part of the diet. 00:08:55.560 --> 00:09:03.420 Matthew Osborn: It's in the 18th century that people start average like. By the 1740, an average American man was drinking 2 and a half, 3 gallons of rum a year. 00:09:03.420 --> 00:09:03.910 Tim Carey: Hunter Biden, was charged under this law for purchasing a handgun, while later, admitting to being a user of cocaine, a schedule, 2 drug 00:09:03.910 --> 00:09:06.860 Tim Carey: The District Court denied his request, since he had already pled guilty to the offence, leaving Weasley to only raise a facial challenge to the law, much like Zaki Rahimi had to in that 5th Circuit case. 00:09:06.860 --> 00:09:11.140 Kari Still: Was this just like social drinking? Or did they use alcohol for other purposes? 00:09:11.300 --> 00:09:11.560 Tim Carey: during the time of purchase. 00:09:11.560 --> 00:09:13.260 Matthew Osborn: No, this because water was very unreliable during this period. 00:09:13.260 --> 00:09:13.530 Tim Carey: Hunter Biden challenged the law for violating the second amendment in a Delaware district court, but lost his case, for now. 00:09:13.530 --> 00:09:16.590 Beth McGinty: You know, it's very, very costly to do those kinds of large longitudinal studies in general. 00:09:16.590 --> 00:09:16.671 Kari Still: And in addressing this

facial challenge on appeal, the 8th circuit panel upheld the constitutionality of the law, though in doing so the panel took a rather interesting approach in its application of ruin. 00:09:16.671 --> 00:09:20.000 .___ stop audio Matthew Osborn: You could not trust that out that the water was healthy, Start audio 00:09:41.353 --> 00:09:43.465 Matthew Osborn: rum was especially 00:09:20.240 --> 00:09:28.409 stop audio Tim Carey: during arguments, both Hunter Biden's counsel and the District Judge cited opposing Circuit Court decisions to support their arguments. Start audio 00:09:48.180 --> 00:09:56.990 stop audio Kari Still: So this sets the stage for our main discussion. For today. This Federal circuit split that has arisen in second amendment challenges to this Federal law, Post, Bruin. Start audio 00:09:57.210 --> 00:10:06.309 Kari Still: The 2 cases at issue are the same, relied upon by the parties in the Hunter Biden case, United States versus Daniels from the 5th circuit, striking down the law as applied. 00:09:28.520 --> 00:09:29.320 Beth McGinty: in this case we need to measure some very sensitive things, substance, use, and violence, that if we're relying on self report, people understandably, as there are legal consequences, might not want to disclose. And so that means you can't just 00:09:29.320 --> 00:09:43.820 Kari Still: The court began by emphasizing the high bar for Beasley to succeed on his facial challenge, meaning that Beasley was required to show that the law was unconstitutional in all of its applications, and not just unconstitutional as it applied to him, and the facts of his case. 00:09:44.570 --> 00:09:45.440 Matthew Osborn: prevalent in the early Atlantic world, because 00:09:45.440 --> 00:09:46.030 Tim Carey: And with that high bar in mind the court proceeded to apply Bruin's test. 00:09:46.030 --> 00:09:49.000 Beth McGinty: ask them questions. You also have to figure out how to link on healthcare system records and criminal justice system records and other objective administrative sources of data to verify those key measures. So there are lots of opportunities to do this. It's a big, costly prospect. 00:09:49.000 --> 00:09:50.180 Matthew Osborn: you could put it in a barrel and 00:09:50.180 --> 00:09:51.520 Tim Carey: First, st the court assumed, without deciding that the Federal law governs conduct presumptively protected by the plain text of the Second Amendment. 00:09:51.520 --> 00:09:54.000 .__ stop audio Matthew Osborn: ship it long distances, and it would be preserved. Start audio 00:10:00.387 --> 00:10:13.092 Matthew Osborn: So drinking rum was something people did throughout the day working class guys. They thought rum was like, like, today, we have monster energy drink. Then they had shots of rum. That was what kept them going through the day Start audio 00:09:27.___ --> 00:09:35.367 stop audio Matthew Osborn: Benjamin Rush was a huge temperance advocate. He drank a pint of porter every morning for breakfast. 00:09:58.110 --> 00:10:03.770 Tim Carey: specifically finding that drug users are part of the people for the sake of the spatial challenge. 00:10:05.230 --> 00:10:06.330 Kari Still: And in conducting the historical inquiry required by Bruin. 00:10:06.330 --> 00:10:08.570 .___ stop audio Kari Still: and United States versus Beasley, from the 8th circuit... Start audio 00:10:11.090 --> 00:10:13.409 Kari Still: upholding the law in a facial challenge. 00:10:08.570 --> 00:10:13.440 stop audio Kari Still: the court observed that drug usage and misuse has been a social condition that has existed since the time of the founding, citing uses of alcohol, opium, and cannabis as examples. Start audio 00:11:03.430 --> 00:11:22.110 Kari Still: As for alcohol, while the court noted that some historical restrictions had regulated the combination of alcohol and guns, the court distinguished those historical laws as being relevantly similar to the Federal law issue, because those historical laws restricted gun use as opposed to restrictions on a ban on gun possession. 00:10:13.440 --> 00:10:14.440 Matthew Osborn: drinking 8, 1012 ounces of rum on the job daily was totally normal, total, total, normal, part of life. 00:10:14.440 --> 00:10:14.470 stop audio Tim Carey: But before we look at these cases in earnest, we're going to learn more about what Research says regarding the risks posed by unlawful users and addicts of controlled substances from expert Researcher, Dr. Beth Mcginty. [Insert transition music] Start audio 00:00:40.820 --> 00:00:48.339 Tim Carey: to understand the public health data behind risks of violence and illegal substance use. We are fortunate to be joined by Dr. Beth Mcginty. 00:10:14.470 --> 00:10:21.499 Tim Carey: Yeah. So you're saying, essentially, if there's any very ambitious Phd students out there, we have a project for you. 00:10:21.500 --> 00:10:22.860 stop audio Beth McGinty: A whole career for them. Start audio 00:19:26.650 --> 00:19:36.349 Tim Carey: Well, Beth, thank you so much for adding all this additional context and insight. We're wondering if there was anything else you'd like our listeners to know before we part ways today. 00:10:22.860 --> 00:10:27.000 .___ stop audio Matthew Osborn: And did it cause social consequences? Yes, terrible social consequences. Start audio 00:10:51.290 --> 00:10:53.219 stop audio Kari Still: What were those social consequences? 00:11:22.170 --> 00:11:25.000 stop audio Kari Still: and the court also focused on the temporary nature of the restriction in place. In other words, the restriction only applied during the time of one's intoxication as opposed to all other times when that individual was sober. Start audio 00:12:19.100 --> 00:12:28.030 Tim Carey: As for drug use, the court observed that there were no comparable historical laws that regulated guns by individuals that used drugs during that time in history. 00:11:25.000 --> 00:11:50.370 Matthew Osborn: the social

consequences are exactly what we think of today. When we think about the problems of addiction and drug abuse, right? The law, the the effects on the family. The the fact that it creates this uncontrollable compulsion that the person drinks to the point of destroying their life and becoming violent, and murder murder and suicide were common. Start audio 00:13:14.200 --> 00:13:32.419 Tim Carey: But yet we see stark differences, and how the Americans treated these substances, even as these issues were emerging in the Americas. But to that point. So you mentioned Benjamin Rush before? Who exactly was he? And how does he play into this whole alcohol business? 00:12:28.340 --> 00:12:37.790 Tim Carey: So given that drug use is a centuries old societal problem, and the Government did not regulate guns connected with drug usage. Historically, like the modern Federal law, operates. 00:12:38.090 --> 00:12:44.159 Tim Carey: The court reasoned that it would seem to be inconsistent with the Second Amendment for the Federal Government to do so today. 00:12:45.250 --> 00:12:46.300 Tim Carey: however. 00:12:46.680 --> 00:13:03.069 Tim Carey: in a dramatic twist, the court noted that the modern synthetic drugs of today are materially different than the drugs of the past, and are thus unprecedented under Bruin. Unprecedented societal concerns warrant a more nuanced approach when reasoning by analogy 00:13:03.260 --> 00:13:08.470 Tim Carey: and in a cheeky manner. The court emphasized this point by saying, and I quote 00:13:08.740 --> 00:13:11.830 Tim Carey: James Madison never experimented with methamphetamine. Benjamin Franklin did not dabble in Pcp. And Thomas Jefferson did not use Fentanyl to take the edge off the day. 00:13:11.830 --> 00:13:14.069 Tim Carey: and I imagine that 00:13:14.090 --> 00:13:21.740 Tim Carey: drug markets change both in terms of perhaps the substance being sold, but also in terms of the societal shift. Social dynamics. When you even look at marijuana. Now, how several States have legalized recreational marijuana use medical marijuana use, even though it's still considered a schedule one drug on the Federal level. Do you think these discrepancies may have some impact on this potential risk of violence associated with getting these substances. 00:13:21.740 --> 00:13:23.823 Kari Still: Wonder what they used then. 00:13:24.240 --> 00:13:25.869 stop audio Tim Carey: So open question. Start audio 00:14:12.690 --> 00:14:28.370 Kari Still: And utilizing a more nuanced approach to Bruin's analogical inquiry, the Court determined that there were sufficient historical analogues to the Federal law in order to uphold it facially, as the court found that history did support the law's constitutionality, at least in some of its applications. 00:13:32.740 --> 00:13:41.160 stop audio Matthew Osborn: So Benjamin Rush was the Surgeon General of the Continental Army, who's a signer of the Declaration of Independence. And he was a a true believer

in the Republican political culture of the American Revolution. Start audio 00:14:14.410 --> 00:14:20.569 Matthew Osborn: in the 1790s. This is right. After the Constitution comes about. 00:13:41.160 --> 00:13:54.300 Beth McGinty: Yeah, absolutely. There's really interesting scholarship in the past, you know, 5, 10 years about in particular, the digitization of illicit drug. 00:13:54.669 --> 00:14:00.399 Beth McGinty: Which basically means we use smartphones for everything now, including 00:14:00.500 --> 00:14:03.919 Beth McGinty: potentially, you know, engagement with 00:14:04.000 --> 00:14:20.680 Beth McGinty: illicit markets. And so you probably heard news stories about networks where you can download an app that allows you to sort of order a drug delivery and that kind of model. It's plausible to think. 00:14:20.680 --> 00:14:24.890 Matthew Osborn: there's a large conversation going on in the country about 00:14:24.890 --> 00:14:25.280 Beth McGinty: reduces this pathway by which markets could influence violence. And there is evidence showing that with this digitization there's sort of a increased 00:14:25.280 --> 00:14:28.000 .___ stop audio Matthew Osborn: how to secure the liberty of the nation. Start audio 00:14:29.420 --> 00:14:37.150 Matthew Osborn: And there's a tremendous amount of concern. That there are great hopes for the republican revolution. 00:14:28.920 --> 00:14:32.000 .___ stop audio Tim Carey: And the court looked to some unexpected places to draw these parallels. Start audio 00:14:34.400 --> 00:14:41.200 stop audio Tim Carey: in the 1st instance, the court made a connection between intoxication and historical treatment of people with mental illnesses Start audio 00:14:42.___ --> 00:14:49.010 Tim Carey: They compared mental illness to a continuous state of intoxication similar to habitual misuse. 00:14:37.170 --> 00:14:37.650 Matthew Osborn: but also fears, because there were no historical precedents for a government of this kind. 00:14:37.650 --> 00:14:43.020 Beth McGinty: professionalization of markets in some cases where it's like 00:14:43.120 --> 00:14:43.510 Beth McGinty: ordering. Uber eats essentially. That said, we know that there are some examples of this that have been shown in case studies. But drug markets are are very hard to study, right? They are operating illicitly. They're not welcoming researchers to deeply characterize exactly how these markets work. And so we don't know 00:14:43.510 --> 00:14:49.270 Matthew Osborn: And so Rush is writing in that conversation, and he is writing about what kinds of social norms are necessary for the preservation of a republican nation. 00:14:49.270 --> 00:14:56.000 Tim Carey: They observed that people experiencing mental illness, who pose a danger to themselves or others, were often confined or incarcerated, which implicated the loss of firearm access. As Chief Justice Roberts said in Rahimi, the greater deprivation of rights naturally subsumes the lesser deprivation. So if you are incarcerated or institutionalized, and have a host of different rights restricted at that time. 00:14:56.000 --> 00:15:03.069 Matthew Osborn: and for him, the most essential part of a republican nation is the virtue of the electorate 00:15:03.520 --> 00:15:04.980 stop audio Matthew Osborn: cultivating Start audio 00:15:06.___ --> 00:15:18.059 stop audio Matthew Osborn: Sensibility and empathy within people was essential for them to make good selfless decisions that were for the best of the country in the best interests of the country. Start audio 00:15:39.270 --> 00:15:43.010 stop audio Matthew Osborn: But the number one issue that Rush always wrote about was alcohol. Start audio 00:16:12.__ --> 00:16:22.__ stop audio Matthew Osborn: for rush, alcohol epitomized the danger of of immoral behavior to the Republic. 00:15:05.520 --> 00:15:05.650 Start audio 00:17:10.___--> 00:17:29.726 00:15:05.650 --> 00:15:06.520 stop audio Beth McGinty: on a you know, population, us wide level, what proportion of the market looks like that digitized, sanitized app version that I just talked about versus a more I will say traditional market, and certainly there is still some of both in evidence in our society. Start audio 00:01:41.160 --> 00:01:50.319 Kari Still: And on the topic of the different risks that may be posed by certain drug markets. There are also a lot of substances regulated by the Controlled Substances Act. 00:15:06.520 --> 00:15:07.520 Matthew Osborn: A highly addictive substance was basically free in rural America, and people were drinking a ton. and at the heart of his concerns was that 00:15:15.040 --> 00:15:19.409 Tim Carey: Then it's natural that the Government can also do lesser restrictions 00:15:20.140 --> 00:15:27.849 Tim Carey: also, like in the Supreme Court's Rahimi decision, the court here weighed in on going to arm laws noting that 00:15:27.920 --> 00:15:35.509 Tim Carey: going arm laws indicate how conduct, as opposed to someone's status can merit disarmament. Historically. 00:15:36.840 --> 00:15:50.389 Kari Still: But the court put a big caveat in its analysis. Throughout its opinion the court was very careful to clarify that it does not believe that every drug, user or addict is necessarily at risk for presenting a danger to themselves or others. In possessing a firearm. 00:15:50.590 --> 00:16:02.740 Kari Still: the court frequently reinforces the nature of the facial challenge brought in this particular case, and seems to suggest that the analysis may play out differently in future cases where defendants challenge the law as applied to them. 00:16:03.550 --> 00:16:18.600 Tim Carey: The court in doing so, gave this very specific example of this 80 year old grandmother, who uses marijuana for a chronic medical condition that also keeps a pistol at home for her safety, because she lives in a high crime area. 00:16:18.750 --> 00:16:21.220 Tim Carey: They espouse that 00:16:21.440 --> 00:16:26.860

Tim Carey: such a woman would likely not pose a significant danger to others or society. 00:16:26.890 --> 00:16:32.770 Tim Carey: and thus posited her case as one that may await an as applied challenge if it existed. 00:16:34.970 --> 00:16:42.680 Tim Carey: like in Daniels, one of the judges here also wrote a concurring opinion to highlight a degree of separation from the majority. 00:16:43.570 --> 00:16:49.650 Tim Carey: This judge didn't feel like the 8th circuit had to take on the historical analysis 00:16:49.660 --> 00:16:51.110 Tim Carey: here at all. 00:16:51.160 --> 00:16:52.800 Tim Carey: largely because 00:16:52.940 --> 00:17:02.000 Tim Carey: prior 8th circuit precedent identified the law issue as being one of the presumptively lawful regulatory measures permitted by Heller and Bruin, and thus 00:17:02.880 --> 00:17:13.919 Tim Carey: precedent Ser decisis held the case as solid ground. There was no need to really reevaluate it, and especially to cast off these hypothetical as applied challenges that 00:17:14.230 --> 00:17:17.349 Tim Carey: weren't currently reflected or at issue in the case. 00:17:17.510 --> 00:17:32.350 stop audio Kari Still: Yeah, exactly. The Supreme Court and Rahimi actually reinforced this high bar for facial challenges and cautioned against judges interpreting Bruin to speculate on hypotheticals that may arise in a law's application in other cases or context, not before it. Start audio 00:15:09.140 --> 00:15:22.499 stop audio Kari Still: Beasley has docketed a petition for the Supreme Court to review his case. So he's attempting to appeal this 8th Circuit decision also. Tbd. Whether or not the Supreme Court will grant his petition or take some other action in relation to this case. Start audio 00:17:58.___ --> 00:18:02.729 Kari Still: like sending it back to the 8th circuit to decide this case again in light of Rahimi. 00:17:47.556 --> 00:17:53.349 Matthew Osborn: drinking made people immoral. It caused people to do things like 00:17:53.420 --> 00:17:56.559 Matthew Osborn: commit violence, or murder, to beat their wife. 00:17:57.003 --> 00:18:03.280 .___ stop audio Matthew Osborn: It caused people to miss work and it caused all sorts of health problems. Start audio 00:18:07.790 --> 00:18:34.720 stop audio Tim Carey: And you raise excellent points here, Matthew, especially about these early colonial era, founding era concerns of violence and virtuous citizenry that arise in contention to alcohol use. But how, then, did a political body is at this era in early American history try to intervene or regulate or not regulate the substances in light of those concerns. Start audio 00:19:00.___ --> 00:19:03.419 Matthew Osborn: Historians sometimes call this the age of reform. 00:18:03.280 --> 00:18:24.410 stop audio Tim Carey: But while we wait we need not sit on idle hands, because there's a lot to still parse through in terms of the historical laws at issue that could be implicated in this case. So to help us examine in greater detail the historical interpretation of controlled substances from the founding to present. We'll be joined by an expert historian shortly. [Insert transition music] Start audio 00:00:07.110 --> 00:00:28.309 Kari Still: So to help us better understand our nation's history of use and regulation of alcohol and controlled substances. We are joined by Dr. Matthew Osborne, who is an associate professor of history at the University of Missouri, Kansas City. As an expert on early American history Dr. Osborne has been researching, writing, and teaching the history of alcohol abuse for over 20 years. 00:19:03.580 --> 00:19:07.739 stop audio Matthew Osborn: and that's because in a republican nation Start audio 00:19:12.___ --> 00:19:14.___ stop audio Matthew Osborn: There was a broad diversity of views Start audio 00:19:25.070 --> 00:19:33.710 Matthew Osborn: and so the other consequence of that was that issues like alcohol were, and the consequences of alcohol were simply not 00:19:33.980 --> 00:19:37.670 Matthew Osborn: on the to do list of the Federal Government. 00:19:38.090 --> 00:19:38.170 Beth McGinty: Really 00:19:38.170 --> 00:19:39.010 stop audio Matthew Osborn: So what Rush believed it was that he had to Start audio 00:19:45.540 --> 00:19:55.210 Matthew Osborn: Advocate for people to change their habits. So he 00:19:39.010 --> 00:19:45.340 Beth McGinty: 2 things that we haven't touched on yet. One is that we focused here on 00:19:45.750 --> 00:19:48.960 Beth McGinty: controlled substances. So not out. 00:19:49.790 --> 00:19:55.650 Beth McGinty: The evidence around alcohol is pretty different. There is a clear link between ingestion of alcohol, the psycho pharmacologic pathway of alcohol and violent behavior. And the reason I'm bringing that up is because use of alcohol and other controlled substances often Co occur. 00:19:55.650 --> 00:20:03.000 .___ stop audio Matthew Osborn: He instilled in the American medical profession a deep concern with alcohol and consequences of alcohol for human health 00:20:09.590 --> 00:20:13.970 Beth McGinty: And so in a lot of studies that have shown. 00:20:14.010 --> 00:20:23.180 Beth McGinty: oh, people who are using controlled substances are, you know, more likely to be engaging in violence. Those people are also using alcohol 00:20:23.630 --> 00:20:39.000 Beth McGinty: when you look at prospective studies trying to measure the relationship between controlled substances and violent behavior. When you control for alcohol use in those studies. That's when we don't see a relationship between controlled substance use and violence. So that's point number one 00:20:39.000 --> 00:20:41.499 Tim Carey: How did society at large 00:20:41.600 --> 00:20:44.020 Tim Carey: in the founding and colonial era America deal with people who struggled with substance, misuse? 00:20:44.020 --> 00:20:45.570 Beth McGinty: point number 2 00:20:45.610 --> 00:20:51.080 Beth McGinty: is, I alluded at the

very beginning to this being a more complicated 00:20:51.130 --> 00:21:10.020 Beth McGinty: epidemiologic issue in terms of how we disentangle the relationship between substance, use, and violence. And central to this is this idea of distinguishing correlation from causation, so correlation to substance, use, and violence happen at the same time. 00:21:10.020 --> 00:21:11.080 Matthew Osborn: There was certainly a recognition that alcohol was not an excuse for crime. 00:21:11.080 --> 00:21:16.760 Beth McGinty: causation does substance use actually make someone be violent in the future? And there are lots and lots of studies supporting a correlation between substance, use, and violence. People who use substances are more likely to have violent behavior than people who don't 00:21:16.760 --> 00:21:24.383 Matthew Osborn: Right? So if you got drunk and you committed a crime or an act of violence that was not an excuse. 00:21:28.040 --> 00:21:32.810 stop audio Matthew Osborn: generally, if you were somebody who was incapacitated or drunk on the street, you would be incarcerated in the almshouse and meant to sleep it off 00:21:32.810 --> 00:21:43.580 Beth McGinty: use substances. However, that does not mean that the substance use is what is causing that violent behavior, because those studies can't even tell us 00:21:43.580 --> 00:21:55.440 Beth McGinty: whether the substance use came before the violent behavior or after. There is also some evidence that violence can increase people's substance. Use right? So this pathway could go both ways. 00:21:55.570 --> 00:22:06.779 Beth McGinty: And then the 3rd piece of that puzzle that I'll highlight, in conclusion, is that there are a bunch of shared risk factors that underlie both substance, use 00:22:06.800 --> 00:22:08.880 Beth McGinty: and violence. 00:22:08.920 --> 00:22:16.990 Beth McGinty: So alcohol is one of them, and but so is association with violent peer groups. 00:22:17.090 --> 00:22:26.389 Beth McGinty: So is a history of traumatic experiences, so are socioeconomic risk factors for violence like poverty. 00:22:26.670 --> 00:22:52.059 Beth McGinty: So those shared risk. Factors might be what's driving both the substance use and the violence, but are sort of hidden underneath. And so it can look like substance. Use is causing violence when it's really those other factors which suggests from a public health perspective that the most effective policies are going to be the ones that target those shared risk factors as opposed to the substance uses. 00:22:52.850 --> 00:22:57.880 Tim Carey: I'm glad you raised that point because kind of the age old example of oh, there's more violent crime during the summer, and there's more ice cream sales during the summer, so do ice cream sales make people more violent, and I think you're sort of subbing ice cream sales in with controlled substance use here and it it tracks that it could potentially be a misattribution that you need to look at more factors, more angles to see like if there are any underlying causes here that could be informing the bigger picture. So I appreciate you raising that nuance. 00:22:57.880 --> 00:23:08.000 .___ stop audio Kari Still: But the early attempts to regulate alcohol failed essentially, because alcohol was used by most people, and I guess it's prevalent use made it difficult to regulate... Start audio 00:23:10.760 --> 00:23:11.___ stop audio Matthew Osborn: That's right. Start audio 00:23:14.790 --> 00:23:16.439 Matthew Osborn: as with all 00:23:17.115 --> 00:23:22.740 stop audio Matthew Osborn: psychoactive substances and addictive drugs, that the variables are price and availability. Start audio 00:25:33.700 --> 00:25:38.660 Tim Carey:part of the reason why alcohol, perhaps 00:23:22.740 --> 00:23:23.720 Beth McGinty: Absolutely. 00:23:24.520 --> 00:23:30.699 Kari Still: Well, Beth, we cannot thank you enough for joining us today and sharing your expertise and insight on this very important topic. 00:23:31.250 --> 00:23:32.210 stop audio Beth McGinty: Thanks for having me. [Insert transition music] Start audio 00:00:02.440 --> 00:00:30.580 stop audio Kari Still: A quick disclaimer. Since recording this episode, the 5th circuit released a new opinion in the case called United States. V. Connelly, striking down this federal law as applied to another nonviolent, habitual user of marijuana. This latest opinion largely tracks the 5th Circuit's reasoning of its prior decision in United States V. Daniels, so its release does not meaningfully alter the substance of our following discussion of the circuit split between the 5th and 8th circuits on this issue. We're just acknowledging that it happened. And now that we have, we can return to the discussion at hand. Start audio 00:00:05.390 --> 00:00:08.930 Tim Carey: It was the best of times. It was the worst of times. 00:25:38.840 --> 00:25:54.259 Tim Carey: wasn't regulated as stringently is because it was so ingrained into so many different aspects of society, whether you were selling it, consuming it on the job, consuming recreationally, it was it just had a presence that 00:25:54.390 --> 00:25:56.990 Tim Carey: is incomparable to most other things. 00:25:57.260 --> 00:25:58.000 .___stop audio Matthew Osborn: That's right Start audio 00:27:19.800 --> 00:27:28.290 Matthew Osborn: so industrialization,the social transformations that go along with the early industrial revolution. 00:27:28.520 --> 00:27:43.060 stop audio Matthew Osborn: really change the place of alcohol in American society and culture Start audio 00:31:22.790 --> 00:31:30.___ stop audio Matthew Osborn: By the 1850s, all that activity began to translate into actual efforts to try to limit the production and sale of alcohol Start audio 00:36:47.700 --> 00:36:54.___ stop audio Matthew Osborn: the rise of criminality in the 1920 s. And the Federal response to that created... Start audio 00:37:01.___--> 00:37:07.540 Matthew Osborn: ...

institutions within the Federal Government, especially the FBI. In enforcing these prohibition laws. 00:37:07.730 --> 00:37:10.900 Matthew Osborn: Those same people, then.. 00:37:11.070 --> 00:37:20.000 .___ stop audio Matthew Osborn: in the 19 thirties and forties, focused their efforts on drugs like marijuana and heroin. Rather, once alcohol is legalized. Start audio 00:37:22.___ --> 00:37:37.559 stop audio Matthew Osborn: It's in the 1920s that all of the enforcement sort of infrastructure that later comes to be applied to illicit drugs is created in response to prohibition alcohol. Start audio 00:37:37.560 --> 00:37:49.___ stop audio Tim Carey: And so, Matthew, this point you talk about about how transitioning a focus from alcohol to controlled substances after prohibition failed really brings us back to the founding era once more. Start audio 00:37:53.___--> 00:38:00.249 Tim Carey: Mathew, did founding Americans misuse controlled substances or use controlled substances and the likes that we know today 00:38:01.327 --> 00:38:23.139 Matthew Osborn: No. And that's because there simply wasn't the range of substances that we think about. I mean, if you think about psychoactive substances that were available in the 18th century. It was alcohol and tobacco, tea, coffee, chocolate. We don't think of chocolate as a drug, but it's very psychoactive 00:38:23.823 --> 00:38:29.246 Matthew Osborn: sugar acts in the in the mind similar to illicit drugs. 00:38:29.760 --> 00:38:32.419 stop audio Matthew Osborn: today we have things like aspirin. Start audio 00:38:35.150 --> 00:38:43.610 Matthew Osborn: we have all sorts of energy drinks. We have all sorts of substances that we commonly take on a daily basis to alter our mental state. 00:38:44.130 --> 00:38:48.579 Matthew Osborn: In the 18th and 19th century all of that was just alcohol. 00:38:49.400 --> 00:38:51.400 .___ stop audio Matthew Osborn: opium was the one drug that did circulate but it was expensive and rare, and it really only circulated among the medical profession. Start audio 00:39:11.870 --> 00:39:22.544 Matthew Osborn: But the number one medicine that doctors prescribed in the 19th century, 18th and 19th century was alcohol. That's really that was the big painkiller alcohol Start audio 01:01:05.140 --> 01:01:07.869 stop audio Matthew Osborn: in the late 19th century Start audio 01:01:10.690 --> 01:01:24.429 stop audio Matthew Osborn: you 1st see Americans beginning to use recreational drugs in along the ways that we think of today in urban urban environments, and that's really linked with the rise of the international pharmaceutical industry. 00:38:51.400 --> 00:38:52.400 Start audio 00:42:53.620 --> 00:43:03.320 00:38:52.400 --> 00:38:53.400 Matthew Osborn: The big turning point. Is really the Civil War. It's in the Civil War that you have 2 things, one, the invention of the syringe 00:43:03.830 --> 00:43:11.979 stop audio Matthew Osborn: and the growing use of opiate derivatives,

especially morphine and later heroin. 00:43:56.700 --> 00:44:11.284 Matthew Osborn: and they're concerned both about alcohol and about morphine, and and then heroin. Now, morphine and heroin. You could buy at the local pharmacy. Those were not regulated. They were not prescription only. 00:44:12.093 --> 00:44:18.449 stop audio Matthew Osborn: It's not until the Harrison Act of 1,914 that those become strictly regulated. Start audio 01:02:19.560 --> 01:02:22.209 Matthew Osborn: But the pharmaceutical industry 00:53:06.250 --> 00:53:07.959 stop audio Matthew Osborn: Thanks so much. I really appreciate it. [Insert transition music] Start audio 00:00:05.050 --> 00:00:14.809 Kari Still: So now that we have a better sense of the public health data, the case controversies, and the history behind our regulation of gun possession by those who unlawfully use controlled substances. 00:57:15.060 --> 00:57:17.060 stop audio Tim Carey: that being said, what greater principles can we, in the modern day, as we're compelled to by the Supreme Court in evaluating second amendment claims? What greater principles can we derive from a historical approach to addressing risks of violence and substance, misuse today. Start audio 00:57:42.800 --> 00:58:04.169 stop audio Matthew Osborn: I think one of the one of the basic principles, and guiding principles that you can see in temperance advocacy throughout the 19th and into the 20th century is a concern with the political health of the nation and the moral behavior of its citizenry. Start audio 00:58:33.___ --> 00:58:44.426 stop audio Matthew Osborn: People who are advocating for regulating alcohol were always extremely concerned with moral behavior and social norms. Start audio 00:59:34.___ --> 00:59:47.939 stop audio Matthew Osborn: So, I think the reason that you don't see an effort to regulate alcohol and gun use in the 19th century is that it simply was a fundamentally different problem than it is today. 00:57:17.060 --> 00:57:18.060 Start audio 00:52:59.910 --> 00:53:05.670 00:57:18.060 --> 00:57:19.060 Tim Carey: Well, thank you so much for all these insights today, Matthew, we really appreciate you coming on and talking with us today. 01:00:33.553 --> 01:00:35.343 stop audio Matthew Osborn: certain Start audio 01:00:36.770 --> 01:00:38.870 Matthew Osborn: turning points in which 01:00:38.890 --> 01:00:42.000 .___ stop audio Matthew Osborn: the kinds of alcohol and drugs that Americans take really changes dramatically. Start audio 00:05:08.___ --> 00:05:13.079 Tim Carey: Thank you, Matthew. And I mean, this is the sort of context that gets left out of case books. 01:01:33.833 --> 01:01:35.000 .___ stop audio Matthew Osborn: and then became mass produced 01:01:36.840 --> 01:01:58.030 stop audio Matthew Osborn: and those began to be sold to consumers as well as to doctors in the late 19th century, so you could have heroin cough drops. Cocaine was another one of these products. Cocaine was much harder to produce in large quantities, so it was always more rare. Start audio 00:43:50.410 --> 00:43:55.079 Matthew Osborn: This is when addiction medicine becomes a medical specialty for the 1st time. 01:02:22.440 --> 01:02:24.920 Matthew Osborn: makes opiates 01:02:25.402 --> 01:02:43.059 stop audio Matthew Osborn: regularly available and ubiquitous the same way that rum distillery made hard liquor universally available, and that creates just the way it did with rum. It creates terrible social consequences that that society has has to struggle with. Start audio 01:02:58.470 --> 01:03:11.100 stop audio Matthew Osborn: Now, the Harrison Act doesn't create the same level of criminality that prohibition does in 1,919. And that's because the use of opiates simply wasn't as broad and prevalent as alcohol Start audio 01:03:31.140 --> 01:03:33.979 Tim Carey: no. You raise a great point. Essentially. 01:03:34.180 --> 01:03:38.899 Tim Carey: these substances, whether be they alcohol or be they. These other controlled substances 01:03:39.670 --> 01:03:49.169 Tim Carey: became issues based on accessibility. Accessibility led to greater rates of misuse abuse. 01:03:49.250 --> 01:03:54.459 stop audio Tim Carey: but then necessitated some form of engagement or regulation. Start audio 00:56:55.___--> 00:57:14.699 Tim Carey: Matthew, you've been talking a bit about different motivations behind attempts, whether they are economic or social, or legally administered, to try to influence people who were misusing substances, be they alcohol or later morphine opiates, others.