On Friday, July 13, the U.S. Court of Appeals for the Eighth Circuit upheld a conviction under 18 U.S.C. § 922(g)(3), which prohibits possession of a firearm by an unlawful drug user. The opinion was written by Judge Shepherd, joined by Judges Stras and Loken. Judge Stras issued a concurrence.
It is the same statute that the Supreme Court ruled on in U.S. v. Hemani, just last month. There, the Justices held, unanimously, that prosecution of Mr. Hemani under 922(g)(3) violated his Second Amendment rights, in part because the government failed to show that Hemani’s regular use of marijuana rendered him dangerous. For further discussion of the Court’s decision in Hemani, see our prior blog posts here and here.
In United States v. Baxter, police were called to the scene of a gang dispute in Des Moines, Iowa. Defendant Baxter, a member of the Strap gang, was arrested in connection with the gang dispute. At the time of his arrest, he had a loaded pistol and a baggie of marijuana on his person. Later tox screens also revealed the presence of THC or marijuana metabolics in his blood at the time of his arrest.
He was then prosecuted under 922(g)(3) based on his “chronic” use of marijuana, which he challenged as a violation of the Second Amendment. At trial, the government put on an expert who testified that there is a “strong connection” between chronic cannabis use and “aggression and violence,” and that withdrawal symptoms include aggressiveness as well. In other testimony, the government offered photographs and videos of defendant using marijuana and other social media content of him displaying or brandishing firearms at the camera. Baxter testified that he smoked two blunts of marijuana per week. But the government put on evidence from Baxter’s Snapchat which apparently showed him using marijuana at least daily.
The Eight Circuit upheld the prosecution, holding that although Baxter’s conduct falls within the “plain text” of the Second Amendment, the government offered sufficient historical analogues to justify Baxter’s prosecution and disarmament.
There are some interesting things happening in this opinion:
1. Limited Discussion of Hemani
The Eighth Circuit spends virtually no time engaging with Hemani, referring to it only in passing on the last page of the panel opinion. Indeed, it only says “The Supreme Court’s very recent unanimous decision in United States v. Hemani is not to the contrary,” followed by a parenthetical quote from Hemani that the court declined to “address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason.”
This is consistent with our broader analysis of Hemani, in which we’ve explained the Court’s opinion does little to develop Second Amendment doctrine, is very circumspect in its holding, and has few practical implications for prosecutions under 922(g).
2. Burden of proof discussion.
Before the Eighth Circuit, the parties disputed what standard of proof applied to the government’s defense of the law—that is, whether historical analogues support prosecution of the defendant. Baxter argued that because it is a criminal prosecution, the government should be held to the “beyond a reasonable doubt” standard. The government argued that proving a historical analogue by preponderance of the evidence should suffice. The Eighth Circuit agreed with the government because whether the “application of § 922(g)(3) . . . to [Baxter] is consistent with the Nation’s historical tradition of firearm regulation is not an element of the crime.”
3. Historical Analogues: One is Enough?
As to the historical analogues analysis, the Court held that the history of disarming people who take up arms to the “Terror of the People” is sufficient to disarm Baxter. The government offered other historical analogues—habitual drunkard laws, and laws relating to the confinement of the mentally ill—but the Eighth Circuit did not address them. Interestingly, the Court wrote that “[a]s we only need to identify one historical analogue, our analysis will start and end with the ‘Terror of the People’ analogue,” citing to Bruen’s statement that “analogical reasoning requires only that the government identify a well-established and representative historical analogue.”
This approach may appear to conflict with the Court’s recent decision in Wolford v. Lopez, which decried reliance on single or “outlier” laws and explained that “[a]n outlier legal rule adopted in a few locales is not enough” to survive constitutional scrutiny. But based on Rahimi’s own reliance on “terror of the people” laws, and its discussion of their ubiquity in the Founding era, it seems like relying on a single tradition, as long as it transcends multiple jurisdictions—rather than just a single law from a single jurisdiction—is more likely to survive Supreme Court review. Rahimi, for its part, recognized that four states in the Founding era prohibited going armed by statute; two additional prohibited going armed via common law. The Eighth Circuit in Baxter does not specify which “going armed” and “terror of the people” laws upon which it relies, referring to the district court opinion instead.
4. Importance of the Party Presentation Rule.
The “party presentation principle” is still king. In Bruen, the Court explained that ““[i]n our adversarial system of adjudication, we follow the principle of party presentation” and therefore “[c]ourts are . . . entitled to decide a case based on the historical record compiled by the parties.” This is even more important for the government in prosecutions under 922(g) following the Court’s Hemani decision—both as to the historical analogues, but also as to evidence of the defendant’s dangerousness. Without evidence of the defendant’s dangerousness (for 922(g)(3), as it relates to his drug use), the prosecution may fail constitutional muster.
