The Supreme Court is slated to hear oral arguments in U.S. v. Hemani in less than a month, and by July the Court will have given judges across the country instructions on how to apply Section 922(g)(3) to individuals charged or convicted of possessing firearms as “unlawful” drug users. In the meantime, though, lower courts continue to draw their own conclusions about the constitutionality of the statute.
While no appellate court has found 922(g)(3) unconstitutional in all its aspects, several have concluded that the law violates the Second Amendment rights of at least some defendants. That includes the Fifth Circuit, which held that defendants like Ali Danial Hemani can only face prosecution if they actively possessed a firearm while under the influence of an unlawful drug, as well as the Eighth Circuit, which has come to the conclusion that if an individual is deemed by a judge to be dangerous because of their drug use and gun ownership they can be prosecuted, but if not they should be spared criminal charges.
The appellate court reiterated that position this week in a case called U.S. v. Ledvina, which involves a man who charged with being an unlawful user of marijuana and cocaine while knowingly possessing five firearms. As the majority of the three-judge panel concluded, existing precedent in the Eighth Circuit maintains that “drug use generally or marijuana use specifically does not automatically extinguish a person’s Second Amendment right,” and they remanded the case back to the district court for an individualized assessment of Ledvina’s dangerousness.
Writing in dissent, though, Chief Judge Steven Colloton called the Eighth Circuit’s guidance “untenable,” and declared there was nothing unlawful with Ledvina’s conviction.
The record in this case is fully developed and shows that appellant Ledvina smoked marijuana in March, April, May, June, and July 2022 while possessing firearms in his residence. In August 2022, officers found Ledvina in his car with a loaded pistol on the floorboard, a partially smoked cannabis roach in front of the gear shift, and a plastic bag containing marijuana in the console. Toxicology results from a urine sample showed that Ledvina had used cocaine and marijuana over the past several days. In Ledvina’s residence, officers found a loaded pistol leaning against a coffee table that held a small quantity of cannabis, a digital scale, and rolling paper. They found thirteen grams of marijuana under a couch. In the bedroom, officers found three more firearms next to a vanity that contained a large digital scale and 137 grams of cannabis in glass jars. The district court found beyond a reasonable doubt that Ledvina possessed firearms as an unlawful user of controlled substances. At sentencing, a witness augmented the record by describing an incident when Ledvina accidentally discharged a firearm inside his home while using cocaine.Yet the majority is unwilling to decide whether § 922(g)(3) is constitutional as applied to Ledvina. The majority instead vacates the conviction and suggests the possibility that Ledvina enjoyed a constitutional right to possess the firearms under these circumstances. The court should decide the questions presented on this appeal and affirm the judgment.
Based on Colloton’s description, it’s quite possible that the district court will determine that even under the Eighth Circuit’s guidance, Levina’s possession of firearms while using drugs makes him a danger to himself or others. But the district court couldn’t make that determination at trial because the Eighth Circuit had yet to develop its jurisprudence on the issue. I’m don’t thnk it’s the Eighth Circuit’s responsibility to make that call instead of remanding the case back to lower court. In fact, the appellate court has made it clear it wants the lower courts to be making these decisions.
I continue to believe that a majority of the Supreme Court justices are leaning towards adopting the Eighth Circuit’s standard when they issue their decision in Hemani. The Court has held on to multiple 922(g)(3) cases since granting cert to the Hemani case, but it denied outright two of the government’s appeals in Eighth Circuit cases and allowed the appellate court’s decision to stand. Maybe I’m reading too much into that, but to me it at leasts suggests that some justices are inclined to agree that in order to be convicted under 922ig)(3), there must be a finding that the defendant’s combination of drug use and gun ownership makes them a danger to themselves or others. We’ll find out soon enough, and we may even get more hints that SCOTUS is leaning in that direction during oral arguments next month.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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