Heading into the fall term, the Supreme Court had five different cases dealing with the federal law prohibiting gun ownership for “unlawful” users of drugs to consider accepting. Now that number is down to four, after the justices declined the DOJ’s request to grant cert in U.S. v. Baxter, leaving in place an Eighth Circuit Court of Appeals decision that cast doubt on the constitutionality of Section 922(g)(3).
Keshon Daveon Baxter was charged with violating the law after police in Des Moines, Iowa caught him with a pistol and baggie of pot in 2023. A district court denied his challenge to the statute, and he was sentenced to 64 months in federal prison after entering a conditional guilty plea that allowed him to take his Second Amendment claims to higher courts.
While the Eighth Circuit rejected Baxter’s facial challenge to 922(g)(3), it did decide that his as-applied challenge required the courts to consider his “individual circumstances.” As Solicitor General D. John Sauer wrote in his cert petition:
Noting that the district court had not made “any factual findings as to the nature of [respondent’s] controlled substance use,” the Eighth Circuit remanded the case to the district court to conduct that individualized assessment. The Eighth Circuit stated that, on remand, the district court would need to determine “whether this issue is appropriate for pretrial resolution” under Federal Rule of Criminal Procedure. The Eighth Circuit also stated that, “[i]f the district court determines that Rule12 poses no bar,” “the court must then focus ‘only on [respondent],’” rather than on the broader category of persons covered by Section 922(g)(3). The district court’s task, in the Eighth Circuit’s view, was to decide whether “applying ‘the regulation’ to [respondent’s] conduct” in particular is consistent “‘with this Nation’s historical tradition of firearm regulation.’”
Baxter’s new trial was held in June of this year, and the district court upheld his indictment, ruling that “Baxter’s conduct while using drugs and possessing firearms is nothing short of terrifying,” adding that “the Government has established that prohibiting the possession of firearms by Baxter as an unlawful user of a controlled substance is consistent with the historical tradition of firearm regulation.”
The fact that Baxter didn’t prevail in his do-over at the district court may have influenced the Court to reject the government’s appeal, but it does leave the Eighth Circuit’s decision that district courts need to conduct an individualized assessment on a defendant’s dangerousness in place… at least for now.
SCOTUS still has four other 922(g)(3) cases to choose from if it wants to address the circuit court split on the constitutionality of the law, and while DOJ did file cert in Baxter, it’s also suggested that the best vehicle for the Court is a case called U.S. v. Hemani. Like Keshon Baxter, who had a long history of gang-related activity, Ali Danial Hemani isn’t exactly a sympathetic figure. From the government’s cert petition:
Respondent Ali Danial Hemani is a dual citizen of the United States and Pakistan whose actions have drawn the attention of the Federal Bureau of Investigation. In 2019, a search of his phone at a border crossing revealed communications suggesting that he was poised to commit fraud at the direction of suspected affiliates of the Iranian Revolutionary Guard Corps, a designated foreign terrorist organization. In 2020, respondent and his parents traveled to Iran to participate in a celebration of the life of Qasem Soleimani, an Iranian general and terrorist who had been killed by an American drone strike the month before. Respondent’s mother was captured on video telling an Iranian news agency that she prayed that her two sons, including respondent, would become martyrs like Soleimani. Respondent also maintains weekly contact with his brother, who attends an Iranian university that the U.S. government has designated as having ties to terrorism. And respondent has told law-enforcement officials that, if he knew about an imminent terrorist attack by “a Shia brother” that would kill innocent people, he would not report it to the authorities.
Respondent also is a drug dealer who uses illegal drugs. Text messages recovered from his phone showed that he used and sold promethazine and that he found that substance addictive. He also used cocaine and marijuana.
The Fifth Circuit held that, notwithstanding Hemani’s disturbing background, Section 922(g)(3) is too broad in its structure. It might be okay to prohibit someone from possessing a firearm while they’re actively under the influence of an intoxicating substance, a prohibition on all users of intoxicating substances, unlawful or not, doesn’t comport with the national tradition of gun ownership.
DOJ contends that Section 922(g)(3) only prohibits the possession of firearms by “habitual users” of illegal drugs, and allow “a person to regain the ability to possess firearms simply by ceasing his habitual illegal drug use”, despite the fact that the word “habitual” appears nowhere in statute.
DOJ also contends that “any constitutional concerns about the application of Section 922(g)(3) in marginal cases can and should be addressed by filing a petition to the Attorney General under 18 U.S.C. 925(c), which permits judicial review”, but that statute deals with restoring rights after a conviction. The real question is whether it’s constitutional to ban some or all “unlawful” users of drugs from possessing firearms simply because of their use of intoxicating substances.
I suspect the DOJ is going to get its wish for SCOTUS to take up at least one of these 922(g)(3) cases this term. I don’t know if it will be Hemani alone or if the justices will grant cert to additional cases, but given the circuit court splits this is an issue that the Court does need to address… but hopefully will not decide by adopting the DOJ’s position.
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