Defendant Convicted of Possessing Gun and Pot. Law Was Constitutional.

Federal case law summary: Second Amendment.

United States v. Yancey. Second amendment, possession by drug user.

Defendant, age 18, was arrested under warrant, and was carrying a loaded pistol and 0.7 grams of marijuana. He confessed that he had been smoking marijuana daily since age 16, and had been twice arrested for possession of marijuana.

Defendant was charged and convicted with violating 18 U.S.C. ยง 922(g)(3), which makes it a felony for a person "who is an unlawful user of or addicted to any controlled substance" to possess a gun. Defendant argued that the indictment should have been dismissed as violating the Second Amendment.

The court held that to withstand constitutional scrutiny, the law must be more than "merely 'rational'" and must "withstand 'some form of strong showing'". The court declined, and noted that the Supreme Court has heretofore declined, to "wade into the levels of scrutiny quagmire", but held that in this case, the correct standard was "whether the government had made a strong showing that the challenenged [statute] was susbstantially related to an important governmental objective." The court reserved for a later case "the question of whether a different kind of firearm regulation might require a different approach."

Under this standard, the court held that the regulation was valid. "Congress enacted [this provision] to keep guns out of the hands of presumptively risky people." Quoting Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n.6 (1983), the court referred to groups of persons "including criminals, juveniles without the consent of their parents or guardians, narcotic addicts, mental defectives, armed groups who would supplant duly constituted public authorities, and others whose possession of firearms is similarly contrary to the public interest."

The court noted that "[k]eeping guns away from habitual drug abusers is analogous to disarming felons," and that "habitual drug users, like the mentally ill, are more likely to have difficulty exercising self control, making it dangerous for them to possess deadly firearms," and that "academic research confirms the connection between drug use and violent crime."

Therefore, the statute is valid, since the government made this "strong showing" that the statute was substantially related to an important government objective.

Finally, the court noted that unlike a felon or one committed to a mental institution, an unlawful drug user "could regain his right to possess a firearm simply by ending his drug abuse."

Since the statute was constitutionally valid, the conviction was affirmed.

No. 09 1138, 621 F.3d 681 (7th Cir. Sept. 3, 2010).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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