Federal Gun Ban for Drug Users Survives Constitutional Challenge

A federal criminal law prohibiting certain drug users from possessing a firearm is facially constitutional, the Eighth Circuit ruled Wednesday, saying the regulation comports with the US Supreme Court’s 2022 Bruen decision expanding gun rights.

Judge David R. Stras said 18 U.S.C. § 922(g)(3), which bars unlawful controlled substance users or addicts of a controlled substance from possessing a firearm, is similar to historical US laws disarming the mentally ill and a Founding-era proscription on “taking up arms to terrify the people.”

“Just like its historical counterparts, § 922(g)(3) does not criminalize mere possession,” Stras said in the majority opinion. “It requires another act, the taking of drugs, which itself can cause terrifying and dangerous behavior.”

Devonte Veasley pleaded guilty to violating § 922(g)(3) after shooting at his dealer in a drug deal gone wrong. One month later, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court struck down a New York law limiting who could carry a handgun in public and laid out a new test for determining whether a gun regulation is constitutional. Courts should look to the nation’s history of firearms regulation in determining whether a state has run afoul of the Second Amendment, Justice Clarence Thomas wrote for the majority.

While the US Court of Appeals for the Eighth Circuit rejected Veasley’s facial challenge to 922(g)(3), it left the door open for an as-applied challenge.

There’s evidence that “disarming all drug users, simply because of who they are, is inconsistent with the Second Amendment,” Stras said. “The key word is all.”

The Fifth Circuit has already ruled that the law is unconstitutional as applied to a regular marijuana user who was sober during his arrest.

The Eighth Circuit ruling comes an unsettled time for criminal gun control laws.

In March, the Ninth Circuit ruled that a federal law barring criminal defendants released on bail from possessing guns while they await trial is constitutional. There’s a circuit split on whether disqualifying felons from possessing firearms violates the Second Amendment. And a US Supreme Court decision is pending in a challenge to a federal gun ban for individuals subject to domestic violence restraining orders.

The Eighth Circuit on Wednesday said there aren’t exact historical parallels because the drug use targeted by § 922(g)(3) is an “unprecedented” modern problem.

“James Madison never experimented with methamphetamine, Benjamin Franklin did not dabble in PCP, and Thomas Jefferson did not use fentanyl to take the edge off the day,” Stras wrote. “Today’s drugs are different than the opiates and cannabis of the past.”

But Bruen allows a “more nuanced approach” when courts are confronted with unprecedented concerns, Stras said.

Using an “expanded search” for historical analogs, Stras compared § 922(g)(3) to Founding-era restrictions on “those who were both mentally ill and dangerous” as well as laws against using guns to scare the public.

Judge Jonathan A. Kobes joined the majority opinion.

In a concurring opinion, Judge Raymond W. Gruender said the historical search wasn’t necessary because the Eighth Circuit in a pre-Bruen opinion had deemed § 922(g)(3) presumptively lawful, and nothing in Bruen cast doubt on its constitutionality.

Parrish & Kruidenier represents Veasley.

The case is United States v. Veasley, 8th Cir., 23-01114, 4/17/24.