Seventh Circuit Court of Appeals upholds federal law prohibiting drug users from possessing guns

By Joe Forward, Legal Writer, State Bar of Wisconsin

Sept. 17, 2010 – The Second Amendment won’t protect marijuana or other drug users from incurring a felony charge if they are caught possessing a gun, the U.S. Court of Appeals for the Seventh Circuit recently held.

Matthew Yancey was caught carrying 0.7 grams of marijuana and a loaded gun and pled guilty to a felony charge under 18 U.S.C. section 922(g)(3), which prohibits unlawful users of controlled substances from possessing a firearm. He admitted to being a habitual pot smoker.

Yancey challenged the constitutionality of section 922(g)(3) under District of Columbia v. Heller, 128 S. Ct. 2783 (2008), which holds that the Second Amendment to the U.S. Constitution protects an individual’s right to carry handguns for self-defense.

Yancey argued that Heller shielded him from prosecution as a non-felon and the government did not have a compelling interest in prohibiting habitual drug users from possessing guns. He moved to dismiss the indictment on the ground that section 922(g)(3) violates the Second Amendment. The U.S. District Court for the Western District of Wisconsin denied the motion, and sentenced Yancey to 21 months in prison and three years supervised probation.

In U.S. v. Yancey, No. 09-1138 (Sept. 3, 2010) a Seventh Circuit Appeals panel unanimously affirmed the district court judgment, upholding the constitutionality of section 922(g)(3).

Recognizing that no federal circuit court has published an opinion deciding the constitutionality of section 933(g)(3) after Heller, the appeals panel held that “Congress acted within constitutional bounds by prohibiting illegal drug users from firearm possession because it is substantially related to the important governmental interest in preventing violent crime.”

“[H]abitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms,” the panel explained.

However, the panel noted that section 922(g)(3) prohibits current drug users from possessing firearms. The court did not explain whether possessing drugs is prima facie evidence that a gun possessor is also currently using drugs. In other words, the court did not consider what might happen in the event that Yancey did not confess to being a habitual pot smoker.

Instead, the panel noted: “Unlike those who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, and unlawful drug user like Yancey could regain his right to possess a firearm simply by ending his drug abuse.”