United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
December 15, 2015, a grand jury returned an indictment
charging the defendant Jesse Bruce with two offenses. (Docket
1). Count I charged the defendant with conspiracy to
distribute a controlled substance in violation of 21 U.S.C.
§§ 841(a), 841(b)(1)(B) and 846 and count II
charged the defendant with the offense of possession of a
firearm by a prohibited person in violation of 18 U.S.C.
§§ 922(g)(3) and 924(a)(2). Id. On April
13, 2016, the defendant filed a motion to dismiss count II of
the indictment pursuant to District of Columbia v.
Heller, 554 U.S. 570 (2008). (Docket 29). The government
resists defendant’s motion. (Docket 38). For the
reasons stated below, the defendant’s motion is denied.
Bruce claims count II of the indictment arises out of a
warrantless search of his vehicle, during which two firearms
were seized. (Docket 30 at p. 2). The defendant argues that
assuming the government can prove possession of the firearms
by him, his vehicle “serves as his home” such
that he has a Second Amendment right to possess the firearms
under Heller. Id. at p. 2. Mr. Bruce
acknowledges the United States Court of Appeals for the
Eighth Circuit “rejected a Heller-based facial
challenge . . . by an unlawful drug user.”
Id. (referencing United States v. Seay, 620
F.3d 919, 924-25 (8th Cir. 2010)). He claims, however, to
have an “ ‘as applied’
challenge” to § 922(g)(3). Id.
(referencing United States v. Jacobson, 406 Fed.
App’x. 91 at *1 (8th Cir. 2011) (defendant’s
“as applied” challenge to § 922(g)(3) was
denied because the claim was not made in the district court).
Bruce’s “as applied” challenge to the
constitutionality of § 922(g)(3) is based on the premise
that since his vehicle is his home, like all other homeowners
he is constitutionally entitled under the Second Amendment to
possess firearms for
“self-defense.” (Docket 30 at p. 3). Mr. Bruce
argues he “has a right to protect himself by keeping
firearms in his vehicle.” Id.
Heller, the Supreme Court held unconstitutional a
District of Columbia total ban on handgun possession in
one’s home. Heller, 554 U.S. at 635.
“[W]e hold that the District’s ban on handgun
possession in the home violates the Second Amendment . . . .
[T]he enshrinement of constitutional rights necessarily takes
certain policy choices off the table. These include the
absolute prohibition of handguns held and used for
self-defense in the home.” Id. at 635-36. The
Heller Court acknowledged that “the right
secured by the Second Amendment is not unlimited. . .
.” Id. at 626. By way of a non-exhaustive list
the Court declared that some regulation of the possession of
firearms is permissible.
Although we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amendment,
nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.
Id. at 626-27. The parameters of the Heller
decision are highlighted by the Court’s limiting
directive to the District of Columbia authorities.
“Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the
District must permit him to register his handgun and must
issue him a license to carry it in the home.”
Id. at 635 (emphasis added).
enacted the exclusions in § 922(g) to keep guns out of
the hands of presumptively risky people.” United
States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010).
“The broad objective of § 922(g)―suppressing
armed violence―is without doubt an important one . . .
and the government contends that keeping guns away from
habitual drug abusers is substantially related to that
goal.” Id. at 684. “Keeping guns away
from habitual drug abusers is analogous to disarming felons.
We have already concluded that barring felons from firearm
possession is constitutional.” Id.
“Moreover, habitual drug abusers, like the mentally
ill, are more likely to have difficulty exercising
self-control, making it dangerous for them to possess deadly
firearms. In Heller and McDonald,
Court endorsed the exclusion of the mentally ill from firearm
possession as presumptively valid.” Id.
(referencing McDonald, 561 U.S. at 789 and
Heller, 554 U.S. at 626-27). “[U]nlike those
who have been convicted of a felony or committed to a mental
institution and so face a lifetime ban, an unlawful drug user
. . . could regain his right to possess a firearm simply by
ending his drug abuse. In that sense, the restriction in
§ 922(g)(3) is far less onerous than those affecting
felons and the mentally ill.” Id. at 686-87.
“[T]he gun ban extends only so long as [the defendant]
abuses drugs. In that way, [the defendant] himself controls
his right to possess a gun; the Second Amendment, however,
does not require Congress to allow him to simultaneously
choose both gun possession and drug abuse.”
Id. at 687. “Congress acted within
constitutional bounds by prohibiting illegal drug users from
firearm possession because it is substantially related to the
important governmental interest in preventing violent
crime.” Id. See also United States v. Bena,
664 F.3d 1180, 1183 (8th Cir. 2011) (“this court
observed that Congress sought to ‘keep firearms out of
the possession of drug abusers, a dangerous class of
individuals, ’ and concluded that § 922(g)(3) was
‘the type of “longstanding prohibition[ ] on the
possession of firearms” that Heller declared
presumptively lawful.’ ”) (citing Seay,
620 F.3d at 925. Bena was both a “facial
challenge” and an “as applied challenge” to
§ 922(g)(8). The Bena court emphasized
Heller was premised upon “the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home.” Id. (emphasis removed)
(citing Heller, 554 U.S. at 635).
court of appeals which has “addressed the
constitutionality of § 922(g)(3) have upheld the statute
. . . .” United States v. Carter, 669 F.3d
411, 416 (4th Cir. 2012) (referencing United States v.
Dugan, 657 F.3d 998 (9th Cir. 2011); Yancey,
621 F.3d 681; Seay, 620 F.3d 919; United States
v. Patterson, 431 F.3d 832 (5th Cir. 2005); United
States v. Richard, 350 Fed. App’x. 252 (10th Cir.
Bruce cites to no post-Heller court which, having
analyzed an “as applied” challenge to any
subsection of § 922, found the statute unconstitutional.
To the contrary, every court which conducted an “as
applied” analysis found § 922 constitutional.
See United States v. Marzzarella, 595 F.Supp.2d 596,
598 (W.D. Pa. 2009) (collecting cases), aff’d,
614 F.3d 85 (3d Cir. 2010); United States v.
Pettengill, 682 F.Supp.2d 49 (D. Me. 2010); United
States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010)
(collecting cases); United States v. Ligon, No.
3:04-cr-00185-HDM, 2010 WL 4237970 (D. Nev. Oct. 20, 2010)
(collecting cases denying “as-applied’ challenges
to § 922(g)(1)); United States v. Oppedisano,
No. 09-CR-0305 (JS), 2010 WL 4961663 (E.D.N.Y. Nov. 30,
2010); United States v. Lunsford, No. 2:10-CR-00182,
2011 WL 145195 (S.D. W.Va. Jan. 18, 2011),
aff’d, 470 F. App’x 184 (4th Cir. 2012);
United States v. Daniels, No. 13-CR-00523-WHO, 2015
WL 1743746 (N.D. Cal. Apr. 16, 2015) (collecting cases).
court finds § 922(g)(3) as applied to Mr. Bruce is a
constitutionally valid restriction on his right to possess a
firearm while a drug abuser. While abusing illegal drugs Mr.
Bruce is not a law-abiding citizen and is not entitled to
possess a ...