USA v. Yancey

• Decision Date: 03 September 2010
• Docket Number: No. 09-1138.,09-1138.
• Citation: 621 F.3d 681
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Matthew YANCEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

621 F.3d 681

UNITED STATES of America, Plaintiff-Appellee,

v.Matthew YANCEY, Defendant-Appellant.

No. 09-1138.

United States Court of Appeals,Seventh Circuit.

Argued Aug. 4, 2009.

Decided Sept. 3, 2010.

Rita M. Rumbelow, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Erika L. Bierma, Federal Defender Services, Madison, WI, for Defendant-Appellant.

Before FLAUM, KANNE, and WOOD, Circuit Judges.

PER CURIAM.

Matthew Yancey pleaded guilty to possessing a firearm as an unlawful user of marijuana but reserved the right to argue on appeal that the offense of conviction, 18 U.S.C. § 922(g)(3), violates the Second Amendment as interpreted in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). We conclude that the statute is constitutional and affirm Yancey's conviction.

Police officers executed an arrest warrant for Yancey in June 2008. Yancey, who was 18 at the time, was carrying a loaded pistol and 0.7 grams of marijuana. He confessed that he had been smoking marijuana daily since age 16. Arrests for possession of marijuana in 2006 and again in 2008 corroborate this admission.

A grand jury charged Yancey with violating 18 U.S.C. § 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. An “unlawful user” is someone, like Yancey, who regularly ingests controlled substances in a manner except as prescribed by a physician. See 27 C.F.R. § 478.11; United States v. Burchard, 580 F.3d 341, 352 (6th Cir.2009); United States v. Patterson, 431 F.3d 832, 839 (5th Cir.2005). Yancey conceded the violation but moved to dismiss the indictment on the ground that the statute violates the Second Amendment. Yancey cited Heller, which holds that the Second Amendment preserves an individual's right to keep handguns for self-defense. 128 S.Ct. at 2821-22; United States v. Jackson, 555 F.3d 635, 636 (7th Cir.), cert. denied, --- U.S. ----, 130 S.Ct. 147, 175 L.Ed.2d 95 (2009). Although Yancey was carrying his gun outside his home, he argued that Heller shields him from prosecution because he is not a felon and the weapon is commonplace. And, Yancey continued, the government would need, but could not articulate, a compelling interest to justify dispossessing habitual drug users of their guns. The district court denied the motion, concluding that nothing in Heller prevents the government from criminalizing firearm possession by someone who habitually uses drugs illegally. Yancey then entered a conditional guilty plea and was sentenced to 21 months' imprisonment and 3 years' supervised release.

Yancey's sole argument on appeal is that the district court should have dismissed the indictment on the ground that § 922(g)(3) violates the Second Amendment. We review the district court's legal conclusion de novo. See United States v. Greve, 490 F.3d 566, 570 (7th Cir.2007). This court has not yet analyzed § 922(g)(3) after Heller, and no other circuit has published an opinion deciding its constitutionality. Our full court, however, did recently evaluate whether the Constitution permits Congress to bar those convicted of domestic violence crimes from possessing firearms, see 18 U.S.C. § 922(g)(9), and we concluded that it does. See United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir.2010) (en banc).

In considering the constitutionality of § 922(g)(3), we begin with the Supreme Court's recent decisions in Heller and McDonald v. City of Chicago, --- U.S. ----, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Although the Court concluded that the Second Amendment preserves “the individual right to possess and carry weapons in case of confrontation,” Heller, 128 S.Ct. at 2797, that right is not unlimited. The Court has since admonished that Heller “did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill.’ ” McDonald, 130 S.Ct. at 3047 (quoting Heller, 128 S.Ct. at 2816-17). Heller's footnote 26 underscores that at least these two categorical bans are “presumptively lawful.” Heller, 128 S.Ct. at 2817 n. 26. The Court declined to further elaborate on the full extent of the Second Amendment's reach, noting that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” Id. at 2821. With this case, we move beyond those exceptions to a different, but equally defensible, categorical ban.

We have already concluded, based on our understanding of Heller and McDonald, that some categorical firearms bans are permissible; Congress is not limited to case-by-case exclusions. Skoien, 614 F.3d at 641. And we have already considered and rejected the notion that only exclusions in existence at the time of the Second Amendment's ratification are permitted. Id. It was not until 1968 that Congress barred the mentally ill from possessing guns, and it was in that same legislation that habitual drug abusers were prohibited from having guns. See Gun Control Act of 1968, Pub.L. 90-618, § 102, 82 Stat. 1213, 1220.

But though Congress may exclude certain categories of persons from firearm possession, the exclusion must be more than merely “rational,” Heller, 128 S.Ct. at 2817 n. 27, and must withstand “some form of strong showing,” Skoien, 614 F.3d at 641. (We have thus far, like the Supreme Court, declined to wade into the “ ‘levels of scrutiny’ quagmire,” id.; see also Heller, 128 S.Ct. at 2817 (striking down D.C.'s law “[u]nder any level of scrutiny”)). In both Skoien and United States v. Williams, we evaluated whether the government had made a strong showing that the challenged subsection of § 922(g) was substantially related to an important governmental objective. See United States v. Williams, 616 F.3d 685, 692-93 (7th Cir.2010); Skoien, 614 F.3d at 641-42. We apply that same analytical framework here, and again reserve the question whether a different kind of firearm regulation might require a different approach. See Williams, 616 F.3d at 692-93.

Congress enacted the exclusions in § 922(g) to keep guns out of the hands of presumptively risky people. See Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n. 6, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983); see also S.Rep. No. 90-1501, at 22 (1968) (“The ready availability, that is, the ease with which any person can anonymously acquire firearms (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) is a matter of serious national concern.”). The broad objective of § 922(g)-suppressing armed violence-is without doubt an important one, see Williams, 616 F.3d at 692-93, Skoien, 614 F.3d at 641-42, and the government contends that keeping guns away from habitual drug abusers is substantially related to that goal. As the government notes, many states have restricted the right of habitual drug abusers or alcoholics to possess or carry firearms. See Ala.Code § 13A-11-72(b); Ark.Code Ann. § 5-73-309(7), (8); Cal.Penal Code § 12021(a)(1); Colo.Rev.Stat. § 18-12-203(e), (f); Del.Code Ann. tit. 11, § 1448(a)(3); D.C.Code § 22-4503(a)(4); Fla. Stat. § 790.25(2)(b)(1); Ga.Code Ann. § 16-11-129(2)(f), (i), (j); Haw.Rev.Stat. § 134-7(c)(1); Idaho Code Ann. § 18-3302(1)(e); 720ILCS5/24-3.1 (a)(3); Ind.Code § 35-47-1-7(5); Kan. Stat. Ann. § 21-4204(a)(1); Ky.Rev.Stat. Ann. § 237.110(4)(d), (e); Md.Code Ann., Public Safety, 5-133(b)(4), (5); Mass. Gen. Laws ch. 140, § 129B(1)(iv); Minn.Stat. § 624.713(10)(iii); Mo.Rev.Stat. § 571.070(1)(1); Nev.Rev.Stat. § 202.360(1)(c); N.H.Rev.Stat. Ann. § 159:3(b)(3); N.J. Stat. Ann. § 2C:58-3(c)(2); N.C. Gen.Stat. § 14-404(c)(3); Ohio Rev.Code Ann. § 2923.13(A)(4); R.I. Gen. Laws § 11-47-6; S.C.Code Ann. § 16-23-30(A)(1); S.D. Codified Laws § 23-7-7.1(3); W.Va.Code § 61-7-7(2), (3). These statutes demonstrate that Congress was not alone in concluding that habitual drug abusers are unfit to possess firearms. The state prohibitions, moreover, are merely the latest incarnation of the states' unbroken history of regulating the possession and use of firearms dating back to the time of the amendment's ratification. See generally Saul Cornell & Nathan DeDino, A Well-Regulated Right: The Early American Origins of Gun Control, 73 Fordham L.Rev. 487, 502 (2004). That some of these restrictions are entrenched supports their constitutionality: “This court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution, when the founders of our government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.” Myers v. United States, 272 U.S. 52, 175, 47 S.Ct. 21, 71 L.Ed. 160 (1926).

Keeping guns away from habitual drug abusers is analogous to disarming felons. We have already concluded that barring felons from firearm possession is constitutional. See Williams, 616 F.3d at 693-94. Though scholars continue to debate the evidence of historical precedent for prohibiting criminals from carrying arms, compare Skoien, 614 F.3d at 640-41; Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L.Rev. 204, 266 (1983) (“Felons simply did not fall within the benefits of the common law right to possess arms.”), with Skoien, 614 F.3d at 640-41 (Sykes, J., dissenting); C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol'yY 695, 728-35 (2009), it cannot be disputed that states were regulating firearms as early as the nineteenth century. See State v. Hogan, 63 Ohio St. 202, 218-19, 58 N.E. 572 (1900) (opining that prohibition on tramps bearing arms...