Do 2nd Amendment Open-Carry Gun Rights Apply to Marijuana Consumers?

The killing by police of Keith Lamont Scott in Charlotte, North Carolina, has sparked days of protest. WeedNews has noted that Scott’s tragic encounter with police began when they noticed him sitting in his SUV “rolling a blunt”.

POLICE CHIEF PUTNEY: Two plain clothes officers were sitting inside of their unmarked police vehicle preparing to serve an arrest warrant in the parking lot of The Village at College Downs, when a white SUV pulled in and parked beside of them.

The officers observed the driver, later identified as Mr. Keith Lamont Scott, rolling what they believed to be a marijuana “blunt.” Offcers did not consider Mr. Scott’s drug activity to be a priority at the time and they resumed the warrant operation. A short time later, Offcer Vinson observed Mr. Scott hold a gun up.

Because of that, the officers had probable cause to arrest him for the drug violation and to further investigate Mr. Scott being in possession of the gun.

Due to the combination of illegal drugs and the gun Mr. Scott had in his possession, offcers decided to take enforcement action for public safety concerns. Officers departed the immediate area to outfit themselves with marked duty vests and equipment that would clearly identify them as police officers.

Keith Lamont Scott's "blunt"
“Blunt” is what you call a small joint being smoked by a “thug”

The “drug violation” in question is North Carolina General Law § 90-94 which defines marijuana as a state Schedule VI controlled substance. Evidence photos show the “blunt” to be well below a half-ounce in weight. The violation is a class 3 misdemeanor, the lowest level crime under North Carolina law. The punishment for this crime is a $200 fine with no jail time served.

The police saw that marijuana crime in progress, but “did not consider [it] a priority” at the time. As well they shouldn’t, since they were busy serving a warrant for a real criminal, why should they waste time with a violation that’s just a fine?

But then the police saw “Mr. Scott hold a gun up” and that’s when they had “had probable cause to arrest him for the drug violation”?

North Carolina is one of 31 states that have so-called “open carry” laws. Any adult not subject to prohibitions on gun ownership (convicted felons, for instance) is lawfully allowed to carry a firearm, so long as it is not concealed.

So how does an adult openly displaying a gun he’s legally allowed to carry create the probable cause needed to arrest Scott for the marijuana? The probable cause existed the moment the cops saw the marijuana. The cops already decided the marijuana was not worthy of their attention.

No, the probable cause that was created was the green light to infringe on a black man’s 2nd Amendment rights because the sight of marijuana voids his 5th Amendment rights.

Professor Joseph Kennedy of the University of North Carolina School of Law puts this point into perspective in a recent NPR interview:

NPR: …is there anything in the law that says that you cannot both have marijuana and a gun at the same time?

KENNEDY: Not specifically. So here’s the question is do the police have a reasonable suspicion that you’re not just armed but dangerous? So think of that in terms of three scenarios. Scenario one, the police see me littering and I have a gun on my hip. Scenario two, police see me breaking into a car with a crowbar and I have a gun on my hip. Arguably, the police are justified in pointing their guns at me in scenario two. They see me committing what is a felony in North Carolina, and the reasonable fear would be that since I have a gun, maybe I’ll use it to resist arrest for a felony. Scenario one, it doesn’t seem reasonable to sort of draw their guns on me because littering is an infraction. The question is where does smoking marijuana fit on that spectrum? Is it reasonable to assume that someone who’s smoking marijuana and has a gun is also dangerous and is likely to resist to police contact with deadly force?

This is not a query isolated to North Carolina or the Keith Lamont Scott case. Smoking a joint is a class 3 misdemeanor, still a crime, in North Carolina. But in other open-carry states, like Nebraska, that joint is an infraction, like Kennedy’s littering scenario. Others, like Montana, are medical marijuana states where that joint is a crime, but a patient cannot be arrested for it. Some, like my home state of Oregon, have legalized adult possession of a joint and only public toking of it is a mere infraction.

Professor E. Gregory Wallace at Campbell University School of Law in North Carolina had similar doubts in a discussion with ABC News:

Wallace noted that if the police saw the marijuana cigarette in combination with the gun, it might be enough to justify forcibly disarming Scott because of the implication of illegal activity, but police would have needed to see both at the same time.

“The mere display of a firearm in the city of Charlotte doesn’t give police cause to detain or disarm a citizen,” Wallace said.

Wallace said that if it could be determined that Scott had his weapon in his holster at the time of the shooting, it would be a “game changer,” noting that it would not have put the police in enough danger to warrant shooting him.

I’ve been debating this issue over Facebook and Twitter, trying to find out if any act of Scott’s beyond smoking a joint was illegal. I’ve gotten responses that claim possessing a gun is unlawful if you possess drugs, but I just cannot find in North Carolina law where that is declared.

The site CriminalDefenseLawyer.com says North Carolina prohibits open or concealed carry to “unlawful users or people addicted to drugs or alcohol”, but refers to N.C. Gen. Stat. Ann. § 14-415.12, which is the prohibition on concealed carry permits to someone who is “(b)(5) …an unlawful user of, or addicted to marijuana”, not a prohibition on open carry rights.

second-amendment-gun-rights-750x410 (1)
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed, unless you’re caught with the plant that we harvested to produce the paper this is written on.

Within the North Carolina laws, I found the prohibitions against carrying:

While there are laws against use of a firearm in the commission of a felony, smoking a joint is not a felony. Given that the legislature took the time to put “openly or concealed” on some prohibitions within a section dealing “Carrying concealed weapons”, it seems to me that where they wanted a prohibition on open carry, they said so; therefore, open carry is otherwise permitted except where forbidden.

There is within Federal law - 18 U.S. Code § 922(d)(3) – the following prohibition regarding selling and giving guns to tokers:

It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person… is an unlawful user of or addicted to any controlled substance.

At paragraph (g)(3) we get a prohibition on a toker shipping, receiving, or possessing a gun that had been transported between the states:

It shall be unlawful for any person… who is an unlawful user of or addicted to any controlled substance… to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

But I just can’t find any particular statute that says mere possession of gun by a toker is a crime. North Carolina Attorney General Roy Cooper says it’s a federal crime, but I can’t find that in US Code. It’s also not within the jurisdiction of Charlotte PD to enforce federal law, by the way.

The rest of Cooper’s dissertation on NC gun laws explain in detail the rules on concealed carry, but not open carry. One commenter on my feed tells me Cooper says all concealed carry restrictions are applicable to open carry as well, but provided no link to statute to back it up. I can find no such statute applying 14-269’s concealed carry requirements to citizens’ open carry rights.

You could deduce that as a toker, he had to get that gun from an illegal sale or transfer, but that’s not observed by the cops who saw him smoking a joint. He might have never toked in his life, made a legal gun purchase, and then took up smoking pot afterwards.

I’m no lawyer or paralegal, just a marijuana activist who’s read a ton of statutes from many states, so if I’ve made an egregious oversight, please correct me. But I find nothing in statute that specifically says citizens committing a class 3 marijuana misdemeanor are committing a second crime by openly carrying a firearm.

So the questions remain: Do cannabis consumers have the 2nd Amendment right to keep and bear arms, even though they can’t buy arms or transport them interstate? If that cannabis is legal under state law, is the sight of it and a gun on an adult a “danger” requiring law enforcement intrusion?

Russ Belville
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Russ Belville - or "Radical" Russ, as he is known on-air - hosts The Russ Belville Show - The Voice of the Marijuana Nation, a two-hour live news and talk radio program for the cannabis community, weekdays at 3pm Pacific on RadicalRuss.com (learn more on our Podcast page).  The show is based in Portland, Oregon, but "Radical" Russ has traveled over 300,000 air miles in the past five years, bringing his show to report live from hundreds of cannabis conferences, marijuana expos, hemp festivals, and legalization events in over 50 North American cities.