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September 20, 2011

Ninth Circuit rejects Second Amendment attack on criminalizing drug addict gun possession

In US v. Dugan, No. 08-10579 (9th Cir. Sept. 20, 2011) (available here), a Ninth Circuit panel needs only two pages to reject a federal defendant's Second Amendment challenge to a federal statute that makes it a felony for a drug addict to possess a firearm.  Here are excerpts from the brief opinion (with a bit of my emphasis added toward the end):

We consider the constitutionality of 18 U.S.C. § 922(g)(3) ... [and] uphold the statute against this Second Amendment challenge.

Defendant Kevin Dugan illegally grew and sold marijuana.  He also smoked marijuana regularly.  When police officers responded to a report of domestic violence at his home one afternoon, they discovered his marijuana operation and arrested Defendant.  Because Defendant also had a business of dealing in firearms, a jury convicted him of, among other things, shipping and receiving firearms through interstate commerce while using a controlled substance, in violation of § 922(g)(3).

Defendant argues that § 922(g)(3) runs afoul of the Second Amendment because it deprives him of his constitutional right to possess and carry weapons in case of confrontation....  [But the Supreme] Court told us that “nothing in [its Heller] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  Two of our sister circuits have taken that statement to mean that § 922(g)(3), which embodies a longstanding prohibition of conduct similar to the examples mentioned in Heller, permissibly limits the individual right to possess weapons provided by the Second Amendment.  United States v. Yancey, 621 F.3d 681, 687 (7th Cir. 2010) (per curiam); United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010), cert. denied, 131 S. Ct. 1027 (2011).  We agree.

Like our sister circuits, we see the same amount of danger in allowing habitual drug users to traffic in firearms as we see in allowing felons and mentally ill people to do so.  Habitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances.  Moreover, unlike people who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, an unlawful drug user may regain his right to possess a firearm simply by ending his drug abuse.  The restriction in § 922(g)(3) is far less onerous than those affecting felons and the mentally ill.  Yancey, 621 F.3d at 686-87.  Because Congress may constitutionally deprive felons and mentally ill people of the right to possess and carry weapons, we conclude that Congress may also prohibit illegal drug users from possessing firearms.

I find the logic of this opinion quite suspect, though I fear the usual Second Amendment crowd will not be eager to assail the Ninth Circuit panel's ruling here.  Moreover, I cannot not help but notice that, in the second sentence of the last paragraph, the Ninth Circuit panel jumps from talking about felons to referencing "career criminals" (I have added the emphasis here).  Indeed, the very use of this legally irrelevant and inflamatory term is one of many reasons I find the logic of this opinion suspect.

Obviously, not all felons are "career criminals."  More to the point, perhaps, I find intriguing not only the notion that all criminals and mentally ill and habitual drug users are those "more likely [to] have difficulty exercising self-control," but also the suggestion that all those who are "more likely [to] have difficulty exercising self-control" can, consistent with Second Amendment, be subject to severe criminal punishment for merely possessing a gun for personal self-defense in the home.

Logic aside, this panel opinion is on solid ground when it notes that all persons who have committed any felony (including Martha Stewart and Scooter Libby any many others without any history of violence) are forever subject to stiff federal criminal penalties under current law for possessing a gun even in their homes for self-defense.  Whether that law and others of a similar ilk are so clearly free from serious Second Amendment scrutiny based on Heller's dicta is a question I will continue to raise in this space in response to opinions like the panel work today in Dugan.

September 20, 2011 at 04:49 PM | Permalink


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The Second Amendment refers to "The People", which is a restricted set of citizens. For example, when the 2nd Amendment was crafted, women and free blacks were citizens of the United States, but not part of "The People". They had certain rights, such as property rights, but they did not have other rights, such as the right to vote. This set of citizens were not part of the citizen militia and under the 2nd Amendment at the time it was ratified did not have 2nd Amendment rights.

Likewise, convicted felons are not part of "The People". THey are citizens. They have certain rights. But, felons also have restrictions, including the lack of a vote. Hence, they should not be considered as protected under the 2nd Amendment.

Posted by: Mark | Sep 21, 2011 8:22:08 AM

The Fourth Amendment, Mark, also references "the right of the people" using the exact same phrasing as the Second Amendment. Is it also your position that Martha Stewart and Lewis Libby and everyone else ever convicted of a felony are no longer protected in any way by the Fourth Amendment? That is not how the Fourth Amendment is understood --- while those convicted of crimes have reduced (but not eliminated) Fourth Amendment protections while subject to lawful punishment while in prison or on parole, all felons get back full 4th A rights once their sentence is fully served.

And, more to the point of this Ninth Circuit opinion, Mark, are you also saying that anyone addicted to drugs is not part of the people covered by either the Second or Fourth Amendments? I am sure that the police would love a doctrine that indicates those who are habitual drug users have no rights at all against police searches and seizures without any justification.

Please understand that I see the Second Amendment as special and subject to lots of special limitations. But I hope we do not throw out a lot of important (and in my view sound) constitutional tradition just because we find some people and some guns scary.

Posted by: Doug B. | Sep 21, 2011 8:38:56 AM

A couple of notes from a private citizen sent here by Instapundit:

1. The opinion quotes Heller on "felons and the mentally ill", and later echoes that indirectly in its own words using "career criminals and the mentally ill". From context, it appears these are the same two groups: habitual drug users are being analogized to these two existing classes of individuals, not equated to either of them.

2. "The usual Second Amendment crowd" is generally accepting of due process to deprive someone of an enumerated right for a felony offense; where it gets touchy is when the state uses misdemeanor offenses to do so. This kind of confusion regarding their relative seriousness, and the scope of state power to punish each, puts the law in danger of losing the entire rationale for having a distinction between misdemeanor and felony.

Posted by: craig | Sep 21, 2011 8:45:45 AM

There was a time in this country when people went to jail, paid their debit to society, and had all their rights back when they got out. These current limitations of rights are offensive to freedom. If they are too dangerous to have a gun, they are too dangerous to let out of jail. The way it is now, punishment never ends.

Posted by: Oakenheart | Sep 21, 2011 8:47:34 AM

I do not disagree with your observation in point 1, craig, but your point 2 highlights the concern I have with this Ninth Circuit ruling. By upholding § 922(g)(3), the Ninth Circuit is not saying merely it is okay for Congress to forever deprive someone of their 2A gun rights AFTER they have been duly convicted of a felony. The Ninth Circuit is also saying that, if and whenever a person uses illegal drugs (including, e.g., smokes a joint for pain relief, uses illegal PED, takes X before a party), then that person lacks any and all Second Amendment rights to gun possession in the home for self defense and could be subject to federal prosecution.

Of course, relatively few people actually get prosecuted only for § 922(g)(3) offense (which is why only 3 circuits have yet spoken to the issue and have done so in the context of less-than-savory defendants like Kevin Dugan). Nevertheless, if one does not question the watering down of rights for those on the margins, we cannot reasonably complain when the rest of our rights get watered down as well.

Posted by: Doug B. | Sep 21, 2011 9:06:54 AM

Oakenheart is right. A debt paid should be considered PAID.

Posted by: prairie wind | Sep 21, 2011 9:19:07 AM

Non-professor, non-student, interested by-stander.

The actual finding doesn't really address whether the convicted man can possess a gun while under the influence of drugs, which would be a second amendment issue. It addresses whether he can traffic in guns. There isn't constitutional protection for gun dealing. The finding only cites as precedent laws that restrict the ownership of guns while on drugs. Is there some context that I don't understand?

Posted by: Jonathan Card | Sep 21, 2011 10:13:02 AM


"The usual Second Amendment crowd" is generally accepting of due process to deprive someone of an enumerated right for a felony offense; where it gets touchy is when the state uses misdemeanor offenses to do so.

It's not just the misdemeanors, it's the proliferation of non violent, and even trivial felonies that bothers me. Martha Stewart and Scooter Libby have been cited. They are far from unique. When a person can be designated a felon for packaging Guatemalan lobster tails in plastic bags rather than cardboard boxes, we need to revisit the blanket ban on felons possessing arms.

Ya think I should hold my breath? ;-)

Posted by: Mannie | Sep 21, 2011 10:35:42 AM

The usual second amendment crowd might fear assailing this ruling out of a well founded fear that the anti-gun crowd will seize on it as further proof that "the gun nuts are irrational, and unreasonable lunatics who wont be satisfied until uzis are in the hands of high schoolers." Or some similar such rhetoric.

It has been decades of literal baby steps to get us even to Heller.

The ruling stinks for any number of reasons not limited to the second amendment. Perhaps starting with the Federal ciminalization of nearly everything, and maybe only ending with the insult to that specific element of the bill of Rights.

Posted by: ThomasD | Sep 21, 2011 12:21:22 PM

Yet another case that ought to scare the hell out of everybody. For it demonstrates yet again that once the authorities cross the threshold of virtually any citizen's home that citizen is probably toast.

Odds are always good, as in this case, the cops will end up finding something they can match up with at least one of the thousands of vague, sweeping laws grandstanding pols have been cranking out unrelentingly over the past 30 years.

Can't help but wonder, too, if a judge who puts away a pint of scotch or vodka every night would be considered a drug addict for the purposes of § 922(g)(3)

Posted by: John K | Sep 21, 2011 3:25:22 PM

The only context you are missing, Jonathan Card, is that the statute under which the defendant here was convicted --- that is the statute he is contesting --- not only makes illegal for drug users to deal in guns but also more generally makes it illegal for “any person . . . who is an unlawful user of or addicted to any controlled substance . . . to possess ... any firearm or ammunition."

Because the defendant in Dugan was a gun dealer, one might try to read the opinion as limited only to gun dealers and not also to apply to mere possessors. But I do not think the authors of the opinion believed that their ruling was to be so limited, and a future advocate would have a very hard time making a case that the ruling in Dugan only applies to gun dealers and not all who keep/possess a gun.

Posted by: Doug B. | Sep 21, 2011 3:33:26 PM

It seems to me that the key concern ought to be whether the defendant had been convicted, or otherwise certified, as a drug addict, with the State (i.e., the federal government) declaring that he is not otherwise allowed to possess firearms. I'll buy the idea that drug addiction (including chronic drunkenness) that makes a person irrational, is pretty much the same thing behaviorally and in terms of risk, as schizophrenia and other major illnesses, and generally would have been characterized with them in 1790. IIRC, both categories would have been excluded from the militia – albeit with chronic drunkenness defined rather narrowly by today’s standards, so as to allow participation of many people we would now consider to have a drinking problem.

But even conceding the addict=insane notion, when a gun owner comes down with schizophrenia or manic depression, we don't throw the book at him for possessing his gun, do we? We take the gun and tell him he's too insane to have one, and then presumably we might use tough criminal penalties if, after that, he obtains guns again. I'm sure the same would apply for a gun owner (or dealer) who became an alcoholic. He has to be told first, by the State, that he cannot own guns, before the State can consider jailing him for doing so. Obviously, the legal difference here between alcohol and marijuana is that marijuana is illegal to possess, whereas this has not been an issue for alcohol since 1933. Now, is it enough that the marijuana user presumably knew it was illegal, or is it just possible that, to deprive a citizen of a constitutional right due to his criminal behavior, one has to convict him first?

Posted by: DWPittelli | Sep 22, 2011 8:03:17 AM

It is my opinion that when the 2nd amendment is concerned is realitively simple. I understand and even except that certin felons should be banned from ownership of firearms. However, two of many facts are clear, first registered gun ownership is able to be monitored therefore those felons (non-violent)who have finished thier sentences sould be able to own one. Fact two is just as simple, if a felon or anyone else, who wants to commit gun related crimes will find a gun someware. I personaly have seen guns sold from trunks of cars for next to nothing, there are called "throw away guns". I fully believe that with an appropriate set of guidelines inplace it would be safe and rewarding to allow non-violent offenders to own arms. There were comments about very violent misdeminers (sp) who are allowed to own arms, really, how thoughtfull. We can still bow hunt, black powder hunt, both of which can be used in crimes--center fire rounds are the real issue which is rather stupid honestly. This is just to much government spent on stupid, bias, and unconstitutional law making. We need a movement to abolish or alter these issues quickly.

Posted by: Michael Bishop | Oct 9, 2012 11:39:34 PM

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