United States v. Carter

Decision Date23 January 2012
Docket NumberNo. 09–5074.,09–5074.
Citation669 F.3d 411
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Benjamin Tod CARTER, Defendant–Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

OPINION TEXT STARTS HERE

ARGUED: Lex A. Coleman, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant.

Anthony William Vitarelli, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin, II, United States Attorney, Charleston, West Virginia, Lisa G. Johnston, Assistant United States Attorney, Office of the United States Attorney, Huntington, West Virginia, for Appellee.

Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge DIAZ and Senior Judge HAMILTON joined.

OPINION

NIEMEYER, Circuit Judge:

Following a police search that uncovered marijuana and firearms in Benjamin Carter's West Virginia apartment, Carter conditionally pleaded guilty to possessing a firearm while being an unlawful user of marijuana, in violation of 18 U.S.C. § 922(g)(3). At the time of his arrest, Carter was using marijuana and conceded that he had been using it for approximately 15 years. Carter's conditional guilty plea reserved for appeal the question of whether his § 922(g)(3) conviction violates his Second Amendment right to keep and bear arms.

Although we conclude, applying the intermediate scrutiny standard, that Congress had an important objective for enacting § 922(g)(3) to reduce gun violence and might have reasonably served that objective by disarming drug users and addicts, we nonetheless find that the government failed to make the record to substantiate the fit between its objective and the means of serving that objective. Therefore, we vacate the judgment and remand for further proceedings.

I

Responding to complaints of suspected drug activity at 735 Central Avenue, Charleston, West Virginia, a two-unit apartment building where Carter was living at the time, Charleston police investigated by knocking on doors and talking with persons who answered. After finding evidence of marijuana use in the first unit, the officers proceeded to knock on Carter's door. Carter answered and allowed the officers to enter his apartment. Upon smelling marijuana, the officers questioned Carter, who acknowledged that he had been smoking marijuana and indeed that he had been using the drug for 15 years. The officers recovered from the apartment 12 grams of loose marijuana, 15 grams of partially smoked blunts, a digital scale, $1,000 in larger bills, and $122 in smaller denominations. Carter also informed the officers about two firearms in his closet—a semi-automatic pistol and a revolver—and disclosed that he had purchased the weapons from a friend a week earlier for his defense. He later explained in more detail that he had purchased the guns because he lived in “a bad neighborhood” and needed weapons to protect himself and his nephew, who also lived with him in the apartment. Indeed, at sentencing, Carter's attorney represented to the court that one month after Carter's arrest in this case, the other unit in the apartment building was burglarized, and his neighbor was shot eight times.

After being indicted for violating 18 U.S.C. § 922(g)(3), which prohibits firearm possession by a person “who is an unlawful user of or addicted to any controlled substance,” Carter filed a motion to dismiss the indictment, arguing, among other things, that § 922(g)(3) was unconstitutional, facially and as applied to him. The district court denied the motion, reasoning that § 922(g)(3) “is far less restrictive than the laws held unconstitutional in [ District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ] and is consistent with the safety based exceptions recognized in that case.” Carter then entered a conditional guilty plea, reserving his right to appeal the district court's denial of his motion to dismiss, and the district court sentenced Carter to three years' probation. He now appeals, raising as his only issue the constitutionality of his conviction under 18 U.S.C. § 922(g)(3).

II

Carter contends that § 922(g)(3) unjustifiably burdens his Second Amendment rights. Acknowledging that he is a user of marijuana, he contends that he was nonetheless entitled, under the Second Amendment, to purchase the guns for the lawful purpose of protecting himself and his nephew in his home against those who might intrude. And because the right of self-defense in the home is the “ central component ” of the Second Amendment protection, Heller, 554 U.S. at 599, 128 S.Ct. 2783, and is “fundamental” and “necessary to our system of ordered liberty,” McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3042, 177 L.Ed.2d 894 (2010), Carter urges us to employ strict scrutiny in reviewing his claim that § 922(g)(3) infringes on his Second Amendment rights.

When strict scrutiny is employed, Carter argues, § 922(g)(3) cannot survive. He agrees that the prevention of gun-related crime is a compelling government interest, but he insists that the statute is not narrowly tailored to advance that purpose. Rather, he maintains, § 922(g)(3) is over-inclusive in that it categorically disarms all unlawful drug users, some of whom do not pose a realistic threat of gun violence, and under-inclusive because it targets only those who use “a particular class of intoxicants” while excluding users of other intoxicants, such as alcohol, who present a comparable risk of gun violence.

In addition, Carter criticizes the statute's historical pedigree, noting that § 922(g)(3) “is not a long-standing prohibition, similar to those on the possession of firearms by felons or the mentally ill.”

Finally, as a fallback position, Carter contends that even if strict scrutiny does not apply, § 922(g)(3) nonetheless fails to pass muster under the intermediate scrutiny standard.

The government contends that the Second Amendment is not at all implicated here because unlawful drug users deserve no Second Amendment protection whatsoever. It notes that the historical scope of the Second Amendment right to keep and bear arms extended only to “law-abiding and responsible” citizens who were “capable of exercising it in a virtuous manner.” Alternatively, the government contends that insofar as Carter may be entitled to invoke the Second Amendment, any review of the statute's application to him must be conducted under the intermediate scrutiny standard. Under that standard, the government maintains, the statute is constitutional because it reflects Congress' well-founded empirical judgment that gun ownership by illegal drug users “pose[s] a risk to society.”

Any Second Amendment analysis must now begin with the Supreme Court's recent seminal decision in Heller, which held that the Second Amendment codified a “ pre-existing ” right that allows individuals to keep and bear arms. Heller, 554 U.S. at 592, 595, 128 S.Ct. 2783. The Court noted that the right to keep and bear arms was understood by the founding generation to encompass not only militia service, but also “self-defense and hunting,” id. at 599, 128 S.Ct. 2783, and that, indeed, self-defense constituted “the central component of the right,” id. Moreover, the Court observed, the right to self-defense is at its zenith within the home “where the need for defense of self, family, and property is most acute.” Id. at 628, 128 S.Ct. 2783. The Court did not decide whether, or to what extent, the Second Amendment protects a right to self-defense outside of the home. See United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir.2011) (noting that “a considerable degree of uncertainty remains as to the scope of that right beyond the home”).

The weight of the right to keep and bear arms depends not only on the purpose for which it is exercised but also on relevant characteristics of the person invoking the right. See Heller, 554 U.S. at 635, 128 S.Ct. 2783 ([W]hatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home” (emphasis added)); id. at 625, 128 S.Ct. 2783 ([T]he Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes” (emphasis added)). Placed in the wrong hands, firearms present a grave threat to public safety, and for this reason, the Anglo–American right to bear arms has always recognized and accommodated limitations for persons perceived to be dangerous.

Accordingly, as the Heller Court acknowledged, the Second Amendment right, like other constitutional rights, is “not unlimited” in that it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S. at 626, 128 S.Ct. 2783. Indeed, Heller lists several examples of what the Court deemed to be “presumptively lawful regulatory measures,” including prohibitions on carrying concealed weapons; “longstanding prohibitions” on the possession of firearms by felons and the mentally disabled; laws forbidding firearms “in sensitive places such as schools and government buildings”; laws imposing “conditions and qualifications on the commercial sale of arms”; and restrictions on “dangerous and unusual weapons.” Id. at 626–27 & n. 26, 128 S.Ct. 2783. The Court did not, however, explain why the listed restrictions qualify as “presumptively lawful regulatory measures,” nor did it provide a methodology by which non-listed laws might be constitutionally assessed. Id. at 627 n. 26, 635, 128 S.Ct. 2783.

In Heller, the Court applied these principles and invalidated the District of Columbia's handgun ban,...

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