In US v. Dugan, the 9th Circuit rejected a defendant’s Second Amendment challenge to the federal statute that bans drug addicts to possess firearms in a short, cursory, 2 page opinion.
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.
This is somewhat in tension with the Oregon Supreme Court opinion that held medicial marijuana users cannot be denied conceal-carry permits under state law–though they are barred from carrying guns under federal law (see here, here,and here).
More from Berman.
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.