Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen

40 Pages Posted: 19 Jun 2023 Last revised: 14 Dec 2023

See all articles by F. Lee Francis

F. Lee Francis

Mississippi College - School of Law

Date Written: June 13, 2023

Abstract

In 2001, the Michigan state assembly passed a law prohibiting the possession or use of a firearm by a person under the influence of alcoholic liquor or a controlled substance. Presumably the legislature thought it necessary to prevent individuals from possessing a firearm while under the influence of drugs or alcohol. One study has indicated that “acute and chronic alcohol misuse is positively associated with firearm ownership, risk behaviors involving firearms, and risk for perpetrating both interpersonal and self-directed firearm violence.” Researchers also found that “[i]n an average month, an estimated 8.9 to 11.7 million firearm owners binge drink.” In an attempt to combat gun violence and alcohol use, researchers have suggested restricting firearms for those who misuse alcohol or drugs.

In light of the data, it is not unreasonable to think that the Michigan legislature sought to prevent gun violence in connection with alcohol and drug use. However, such policies are clearly at odds with the original understanding of the Second Amendment.

This paper argues that the intoxicant rule as a limitation on one’s Second Amendment rights is antithetical to the original public meaning of the Constitution. More simply, I argue that laws criminalizing and further restricting an individual’s right to bear arms due to intoxication are unconstitutional and directly contradict the original public meaning and tradition of the Second Amendment. Thus, I undertake to explain that the foundational case on point, New York State Rifle & Pistol Association, Inc. v. Bruen, provides a clear basis for overturning the intoxication rule as an impermissible burden on the right to bear arms as protected by the Second Amendment.

Suggested Citation

Francis, F. Lee, Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen (June 13, 2023). Marquette Law Review, Vol. 107, Forthcoming , Mississippi College School of Law Research Paper No. 23-01, Available at SSRN: https://ssrn.com/abstract=4477746

F. Lee Francis (Contact Author)

Mississippi College - School of Law ( email )

151 East Griffith Street
Jackson, MS 39201
United States

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