A transgender gun ban would echo the illogic of current law

The Justice Department is reportedly considering a rule that would bar transgender people from possessing guns, on the theory that they are “mentally ill” and therefore “unstable.” The proposal, which has no obvious statutory basis, is so constitutionally dubious that it has provoked objections from every major gun rights group.

The rationale for disarming transgender Americans nevertheless resembles the logic underlying the absurdly broad categories of “prohibited persons” who are forbidden to own firearms under current law.

As I explain in my new book "Beyond Control," those categories include millions of Americans who pose no plausible threat to public safety.

Since 1968, for example, federal law has prohibited gun possession by illegal drug users, a felony currently punishable by up to 15 years in prison. Judging from survey data, something like 20 million Americans, mostly cannabis consumers, are committing that felony right now, although only a tiny percentage of gun-owning drug users are prosecuted each year.

One of those extremely unlucky defendants is Jared Harrison, who was caught with a loaded revolver and various cannabis products when he was pulled over for running a red light in Lawton, Oklahoma. The resulting prosecution, according to a recent ruling by the U.S. Court of Appeals for the 10th Circuit, is inconsistent with the Second Amendment unless the government can “show non-intoxicated marijuana users pose a risk of future danger.”

The 10th Circuit joined several other federal appeals courts in casting doubt on the constitutionality of a law at the dangerous intersection of gun control and the war on drugs.

Former President Joe Biden did not think his son, a former crack user who was convicted of illegal gun possession, deserved to go to prison for that crime. Yet his administration steadfastly defended the constitutionality of the very law that Hunter Biden had violated. The elder Biden even signed legislation that increased the potential penalties for those who do what his son did.

That law reinforced the judgment that drug users who try to exercise the constitutional right to keep and bear arms are committing a grave offense worthy of stiff punishment. In addition to illegal gun possession, they can be charged with three other federal felonies. All told, the combined maximum sentences would add up to nearly half a century behind bars.

In practice, defendants rarely face all the possible charges, sentences typically are much shorter than the statutory maximums, and the vast majority of potential defendants are never prosecuted at all. Still, someone who uses drugs and possesses firearms — even if he never combines the two activities — can be punished more severely than those convicted of predatory crimes such as burglary, fraud, and stalking.

Patrick Darnell Daniels Jr., for instance, was sentenced to nearly four years in federal prison after police found two guns and the remains of a few joints in his car during a routine traffic stop in Hancock County, Mississippi. The U.S. Court of Appeals for the 5th Circuit overturned his conviction on Second Amendment grounds.

Another provision of the same law prohibits gun possession by anyone convicted of a crime punishable by more than a year of incarceration — regardless of the actual sentence imposed, the nature of the offense, or how long ago it was committed. Several federal appeals courts have said that disability may be unconstitutional as applied to specific nonviolent offenders

Consider Melynda Vincent, a Utah social worker specializing in drug harm reduction. She was convicted of bank fraud in 2008 because she paid for groceries with a bad check for $498. Seventeen years later, Vincent is still not allowed to own or even temporarily possess a gun.

Even the American Civil Liberties Union, which is not known for defending the Second Amendment, sees a problem with this “extraordinarily broad statute,” which “does not target dangerousness or propensity to commit violence.” As UCLA law professor Adam Winkler notes, “Many felonies are not violent in the least, raising no particular suspicion that the convict is a threat to public safety.”

The nonviolent offenders covered by this ban include President Trump. Yes, he controls the nation’s vast military might, including its nuclear weapons, but he is not allowed to possess a gun because he was convicted of state felonies involving fraudulent paperwork.

Federal law also bans gun possession by anyone who has ever been subjected to court-ordered psychiatric treatment,  no matter how long ago that happened, whether or not he was ever deemed a threat to others, and regardless of his current psychological state. That means someone who was involuntarily treated for suicidal impulses is not allowed to own a firearm for self-protection, even decades later.

A transgender gun ban may seem legally loony, and it is. But it would be just another example of policies that arbitrarily strip people of their Second Amendment rights based on a presumption of danger disconnected from reality.

Jacob Sullum, a senior editor at Reason magazine, is the author of "Beyond Control: Drug Prohibition, Gun Regulation, and the Search for Sensible Alternatives."