United States v. Devonte Veasley ( 2024 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-1114
___________________________
United States of America
Plaintiff - Appellee
v.
Devonte Antonio Veasley
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Central
____________
Submitted: November 2, 2023
Filed: April 17, 2024
____________
Before GRUENDER, STRAS, and KOBES, Circuit Judges.
____________
STRAS, Circuit Judge.
Devonte Veasley pleaded guilty to possessing a firearm—a federal offense for
someone who is using or addicted to a controlled substance. See 18 U.S.C.
§ 922(g)(3). The question is whether criminalizing this conduct always violates the
Second Amendment. The answer is no, so we reject Veasley’s facial challenge to
the statute.
I.
A drug deal went sideways when, rather than going through with it, Veasley
pulled out a handgun and shot at his dealer. After the attack, the government charged
him with possessing a firearm while “unlawful[ly] us[ing]” a “controlled substance.”
Id.A month after he pleaded guilty, the Supreme Court decided New York State
Rifle & Pistol Ass’n v. Bruen, which concluded that a New York law requiring
“proper cause” to carry a firearm violated the Second Amendment. 597 U.S. 1, 12–
13 (2022). It was inconsistent with “this Nation’s historical tradition of firearm
regulation.” Id. at 17.
Inspired by Bruen, Veasley asks us to reach the same conclusion about 18
U.S.C. § 922(g)(3), the federal drug-user-in-possession statute. He believes the
district court1 should have allowed him to withdraw his plea or dismissed the
indictment. The court did neither, however, leaving him with only one option:
challenging the facial constitutionality of the statute. See United States v. Nunez-
Hernandez, 43 F.4th 857, 860 (8th Cir. 2022) (clarifying that a guilty plea does not
foreclose “arguments that a criminal statute underlying a conviction is facially
unconstitutional”); United States v. Seay, 620 F.3d 919, 922 n.3 (8th Cir. 2010)
(explaining why a guilty plea forecloses an as-applied constitutional challenge). His
facial challenge is now before us.
II.
Section 922(g)(3) prohibits anyone “who is an unlawful user of or addicted to
any controlled substance” from possessing a “firearm or ammunition.” 18 U.S.C.
§ 922(g)(3). The penalties for a violation can be heavy, up to 15 years in prison.
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
-2-
See id. § 924(a)(8). Even more for career offenders. See id. § 924(e). Whether this
scheme is constitutional is a legal question subject to de novo review. See Seay, 620
F.3d at 923; see also United States v. Sitladeen, 64 F.4th 978, 983 (8th Cir. 2023)
(reviewing the denial of a motion to dismiss an indictment de novo); United States
v. Seys, 27 F.4th 606, 610 (8th Cir. 2022) (reviewing the denial of a motion to
withdraw a guilty plea for an abuse of discretion).
This is not the first time we have examined § 922(g)(3)’s constitutionality.
We have, for example, entertained a Fifth Amendment void-for-vagueness
challenge. The statute survived because of a “judicially[ ]created temporal nexus
between the gun possession and regular drug use,” United States v. Carnes, 22 F.4th
743, 748 (8th Cir. 2022) (citation omitted), but we left the door open for as-applied
challenges, see, e.g., United States v. Turner, 842 F.3d 602, 604–05 (8th Cir. 2016).
Another set of challenges, like the one here, focuses on the Second
Amendment. See, e.g., Seay, 620 F.3d at 922. A two-part test, based on “text and
historical understanding,” governs them. Bruen, 597 U.S. at 26; see District of
Columbia v. Heller, 554 U.S. 570, 576–78, 628–32 (2008). Step one provides the
textual threshold: does a law prohibit “conduct” that “the Second Amendment’s
plain text covers”? Bruen, 597 U.S. at 17. Crossing that threshold leads to step two,
“historical understanding”: is “the regulation . . . consistent with this Nation’s
historical tradition of firearm regulation”? Id.; see Sitladeen, 64 F.4th at 985. If it
is, then the statute “pass[es] constitutional muster.” Bruen, 597 U.S. at 30.
Constitutional challenges like these come in two varieties. The first is
as-applied, which requires courts to examine a statute based on a defendant’s
individual circumstances. See United States v. Lehman, 8 F.4th 754, 757 (8th Cir.
2021). If a frail and elderly grandmother uses marijuana for a chronic medical
-3-
condition a day before possessing a gun, for example, the constitutional analysis will
consider only those circumstances, not what a different defendant might do.2
A facial challenge, the only type still available to Veasley, goes further. As
the Supreme Court has explained, “[a] facial challenge is really just a claim that the
law or policy at issue is unconstitutional in all its applications,” regardless of the
individual circumstances. Bucklew v. Precythe, 587 U.S. 119, 138 (2019) (emphasis
added). The stakes are higher in a facial challenge, so the bar goes up as well: there
must be, as Veasley acknowledges, “no set of circumstances . . . under which
[§ 922(g)(3)] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987);
see Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)
(noting that “a facial challenge must fail where the statute has a plainly legitimate
sweep” (citation omitted)). If some applications are constitutional, then facially
speaking, the statute is too. See, e.g., United States v. Stephens, 594 F.3d 1033, 1038
(8th Cir. 2010) (holding that a defendant’s “facial challenge . . . fails because . . . .
[o]ne can imagine many defendants [to] whom” the statute could constitutionally
apply); Antonyuk v. Chiumento, 89 F.4th 271, 314 (2d Cir. 2023) (rejecting a facial
Bruen challenge to a licensing scheme requiring good moral character because
“[t]here are applications of the character provision that would be constitutional”).
These differences have practical consequences. An as-applied challenge
would focus only on Veasley: is applying “the regulation” to his conduct
“[in]consistent with this Nation’s historical tradition of firearm regulation”? Bruen,
597 U.S. at 17. To counter a facial challenge, by contrast, all the government must
2
It is true that we have held that there is no need for “felony-by-felony
litigation regarding the constitutionality of” a statute prohibiting the possession of
firearms by felons. United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023). Key
to that decision were the “assurances by the Supreme Court” that nothing in Heller
or Bruen “cast doubt on longstanding prohibitions on the possession of firearms by
felons.” Id. at 501–02 (quoting Heller, 554 U.S. at 626). Here, by contrast, the
Supreme Court has made no such “assurances” about “prohibitions” on drug users
and addicts. Id.-4-
do is identify constitutional applications—even if they are unrelated to Veasley’s
conduct—using the same text-and-historical-understanding framework. See id. at
33–34; United States v. Raines, 362 U.S. 17, 22 (1960) (cautioning courts not to
“pronounc[e] an Act of Congress unconstitutional” when constitutional applications
exist).
In effect, Veasley is speaking for a range of people. On its face, § 922(g)(3)
applies to everyone from the frail and elderly grandmother to regular users of a drug
like PCP, which can induce violence. See United States v. Daniels, 77 F.4th 337,
355 (5th Cir. 2023) (concluding that a marijuana user’s § 922(g)(3) conviction was
inconsistent with the history and tradition of firearms regulation); see also Mim J.
Landry, Understanding Drugs of Abuse: The Processes of Addiction, Treatment, and
Recovery 108 (1994) (“PCP toxicity may include combative hostility, paranoia,
depersonalization, and violence . . . .”). In a prior case, we concluded that a facial
challenge could not succeed. See Seay, 620 F.3d at 925. Bruen has supplemented
the analysis, but it has not changed the answer. See Jackson, 69 F.4th at 501–06
(undertaking the historical analysis “endorsed by Bruen” rather than just relying on
two post-Heller decisions, United States v. Adams, 914 F.3d 602, 607 (8th Cir. 2019)
and United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011)); cf. Sitladeen, 64 F.4th
at 985–87 (concluding that a pre-Bruen precedent only remained binding because it
“did exactly” what “Bruen [now] tells us to” (emphasis added)).
III.
In this appeal, we assume that § 922(g)(3) “governs conduct that falls within
the plain text of the Second Amendment.” Sitladeen, 64 F.4th at 985; see U.S. Const.
amend. II. That is, drug users “are part of ‘the people’ whom the Second
Amendment protects,” and “handguns are weapons ‘in common use’ today.” Bruen,
597 U.S. at 31–32. So “we proceed to ask whether [§ 922(g)(3)] fits within
America’s historical tradition of firearm regulation.” Sitladeen, 64 F.4th at 985.
-5-
A.
It makes sense to start with the closest “historical analogue,” Bruen, 597 U.S.
at 30, which is the regulation of intoxicating substances. Alcohol and drug abuse
have been “general societal problem[s],” id. at 26, for thousands of years. See Hanan
Hamdi et al., Early Historical Report of Alcohol Hepatotoxicity in Minooye Kherad,
a Pahlavi Manuscript in Ancient Persia, 6th Century CE, 13 Caspian J. Internal
Med. 431, 431 (2022) (“[S]everal kinds of alcoholic beverages have been . . . abused
by humans for thousands of years . . . . [A]rchaeological and historical evidence
revealed that the fermentation of grains into beer . . . dated back about 20,000 years
as an ancient custom.” (Internal citations omitted)). Colonial times were no
exception. See Bruen, 597 U.S. at 26. Physician Benjamin Rush, a signer of the
Declaration of Independence, recognized that alcohol can be so addictive that some
drinkers “can afford scarcely any marks of remission either during the day or the
night.” Benjamin Rush, An Inquiry into the Effects of Ardent Spirits upon the Human
Body and Mind 8 (8th ed., Boston, James Loring 1823); see Karl Mann et al., One
Hundred Years of Alcoholism: The Twentieth Century, 35 Alcohol & Alcoholism
10, 10 (2000).
Other drugs were around then too. The use of opioids was common. First
introduced in the 17th century, the “formulation known as ‘laudanum’ (i.e., tincture
of opium) . . . incorporate[d] opium along with other ingredients, such as cinnamon,
clover, and saffron, in Spanish wine.” Enrique Raviña, The Evolution of Drug
Discovery: From Traditional Medicine to Modern Drugs 11 (2011); see J. K.
Crellin, Domestic Medicine Chests: Microcosms of 18th and 19th Century Medical
Practice, 21 Pharmacy in Hist. 122, 126 (1979) (noting that 18th-century medicine
chests contained opiates and laudanum). Cannabis was in use too. See Martin
Booth, Cannabis: A History 70 (2003) (describing the widespread use of hemp and
recognition of its psychoactive properties). And so were natural hallucinogens. See
generally Martin Nesvig, Forbidden Drugs of the Colonial Americas, in The Oxford
Handbook of Global Drug History 153–75 (Paul Gootenberg ed., 2022) (discussing
the use of ayahuasca, peyote, and hallucinogenic mushrooms in colonial America).
-6-
Many of these drugs, and others like them, remain a problem today. When a
“challenged regulation [like § 922(g)(3)] addresses a general societal problem that
has persisted since the 18th century,” like substance abuse, “the lack of a distinctly
similar historical regulation addressing that problem is relevant evidence that the
challenged regulation is inconsistent with the Second Amendment.” Bruen, 597
U.S. at 26. “Likewise, if earlier generations addressed the societal problem, but did
so through materially different means, that also could be evidence that a modern
regulation is unconstitutional.” Id. at 26–27. Our task is to figure out whether
§ 922(g)(3) looks like anything that “earlier generations” did to keep firearms out of
the hands of drug and alcohol users. Id. at 26.
For drinkers, the focus was on the use of a firearm, not its possession. And
the few restrictions that existed during colonial times were temporary and narrow in
scope. One came from Virginia, which banned “shoot[ing] any gunns at drinkeing.”
Act XII of Mar. 10, 1655, reprinted in 1 The Statutes at Large; Being a Collection
of All the Laws of Virginia, from the First Session of the Legislature in the Year
1619, at 401, 401–02 (William Waller Hening ed., New York, R. & W. & G. Bartow
1823). Another from New York, which prohibited firing guns for the three days
bracketing New Years, December 31 to January 2, because of the “great Damages”
done by those “intoxicated with Liquor.” Act of Feb. 16, 1771, ch. 1501, reprinted
in 5 The Colonial Laws of New York from the Year 1664 to the Revolution 244, 244–
45 (Albany, James B. Lyon 1894). Disarmament, on the other hand, was not an
option. 3 See Daniels, 77 F.4th at 345–46 (surveying Founding-era statutes and
concluding they were “limited in scope and duration” when it came to guns and
alcohol, different from the way § 922(g)(3) operates).
3
It only became one toward the end of the 19th century. See, e.g., Act of Apr.
3, § 3, 1883 Wis. Sess. Laws 290 (forbidding any person in a “state of intoxication”
from going “armed with any pistol or revolver”); Act of Feb. 17, § 1, 1909 Idaho
Sess. Laws 6 (prohibiting “hav[ing] or carry[ing]” any “deadly or dangerous
weapon” when “intoxicated, or under the influence of intoxicating drinks”).
-7-
There was even less regulation when it came to drugs. “[T]housands of . . .
Americans at the time[] had become dependent on opium,” Elizabeth Kelly Gray,
Habit Forming: Drug Addiction in America, 1776-1914, at 20 (2023), and
lawmakers were certainly aware of the problem. Senator John Randolph of Virginia
was a user. See id. at 20–21. And so was Senator Robert Goodloe Harper’s mother-
in-law, who died of laudanum dependency. See id. at 21. Founding Father Rufus
King, also a senator, wrote letters to his doctor lamenting his sister’s opium
dependency, including how it impaired her ability to care for her children. Id.Laudanum even held Thomas Jefferson in its grip for a while after he left the
presidency. See John M. Holmes, Thomas Jefferson Treats Himself: Herbs,
Physicke, & Nutrition in Early America 35–36 (1997). In a letter, Jefferson stated
that “with care and laudanum I may consider myself in what is to be my habitual
state.” Letter from Thomas Jefferson to Robey Dunglison (Nov. 17, 1825), in The
Jefferson-Dunglison Letters 41, 42 (John M. Dorsey ed., 1960).
Despite the widespread use of opium in particular, the government concedes
that its “review of early colonial laws has not revealed any statutes that prohibited
[firearm] possession” by drug users. In fact, the “general societal problem” of drug
addiction did not receive congressional attention until 1909. See Smoking Opium
Exclusion Act of 1909, Pub. L. No. 60-221, 35 Stat. 614; see also Harrison Narcotics
Tax Act, Pub. L. No. 63-223, 38 Stat. 785 (1914). And drug use went unmentioned
in the National Firearms Act, which Congress passed almost 25 years later. See Pub.
L. No. 73-474, 48 Stat. 1236 (1934). Instead, it took until 1968, with the passage of
§ 922(g)(3), for Congress to keep guns away from drug users and addicts.
The lesson here is that disarmament is a modern solution to a centuries-old
problem. The fact that “earlier generations addressed the societal problem . . .
through materially different means . . . [is] evidence that” disarming all drug users,
simply because of who they are, is inconsistent with the Second Amendment. Bruen,
597 U.S. at 26.
-8-
B.
The key word is all. As Bruen itself recognizes, “the Constitution can, and
must, apply to circumstances beyond those the Founders specifically anticipated.”
Id. at 28 (emphasis added). Modern synthetic drugs present a “dramatic
technological change[].” Id. at 27. James Madison never experimented with
methamphetamine, Benjamin Franklin did not dabble in PCP, and Thomas Jefferson
did not use fentanyl to take the edge off the day. Today’s drugs are different than
the opiates and cannabis of the past. They are, in a word, “unprecedented.” Id.
When it comes to regulations “implicating unprecedented societal concerns,”
Bruen is clear that we cannot look at history through a pinhole. Id. Rather, we must
take “a more nuanced approach,” again “reasoning by analogy,” to determine
whether there is “a well-established and representative historical analogue” that
could make § 922(g)(3) constitutional in some of its applications. Id. at 27–30; see
Raines, 362 U.S. at 22. It turns out there is.
1.
Our expanded search begins with the mentally ill. “Obviously, mental illness
and drug use are not the same thing. But there is an intuitive similarity” because
their behavioral effects overlap. Daniels, 77 F.4th at 349; compare Tatiana Ramey
& Paul S. Regier, Cognitive Impairment in Substance Use Disorders, 24 CNS
Spectrums 102, 103–05 (2019) (noting that the typical effects of substance abuse are
“attentional bias [to] drug seeking,” “impairment[] in inhibitory control,” “[w]orking
memory impairment[],” and “poor decision-making”), with Yafen Wang et al.,
Cognitive Impairment in Psychiatric Diseases: Biomarkers of Diagnosis, Treatment,
and Prevention, 16 Frontiers Cellular Neuroscience, Nov. 2, 2022, at 2 (listing
“notable deficits in the speed of processing, working memory, attention/vigilance,
verbal learning, visual learning, reasoning and problem-solving, and social
cognition” as manifestations of mental illness). The fact that the analogy works for
some, and that the mentally ill sometimes lost their guns, means that § 922(g)(3)
-9-
cannot be facially unconstitutional. See Salerno, 481 U.S. at 745 (applying the no-
set-of-circumstances test).
The legal view of mental illness in the 18th century was different than it is
now. Many believed it to be a transitory condition, just like intoxication. As
Blackstone put it, “lunatic[s] . . . had understanding, but . . . hath lost the use of . . .
reason.” 1 William Blackstone, Commentaries *294 (emphasis added). The
common belief was that they had “lucid intervals” or periods during which they
“enjoy[ed] [their] senses.” Id. Under that view, they were never “looked upon as
irrecoverable.” Anthony Highmore, A Treatise on the Law of Idiocy and Lunacy
104 (London, R. Wilks 1807); see also id. at 105 (characterizing lunacy as “periods
of imbecility”); 1 Blackstone, Commentaries *294 (explaining that “the law always
imagines . . . [their] accidental misfortunes may be removed”).
The law described intoxication in the same rudimentary way, with almost
identical terminology. Consider Thomas Cooley, who described drunkenness as a
form of “temporary insanity.” Thomas M. Cooley, A Treatise on the Constitutional
Limitations Which Rest upon the Legislative Power of the States of the American
Union 599 n.2 (2d Ed., Boston, Little, Brown, & Co. 1874). Or Benjamin Rush,
who viewed it as a “temporary fit of madness.” Rush, supra, at 6. The same went
for drug addiction, even though the scientific understanding of it was still evolving
at the time. See Gray, supra, at 20 (describing a patient who suffered “[i]nsanity
from the use of [o]pium” and ended up institutionalized).
The similarities did not stop there. Just like the intoxicated kept their civil
liberties, including the right to possess firearms, the mentally ill frequently did too.
Those who posed no danger stayed at home with their families, and their civil
liberties remained intact. See Gerald N. Grob, Mad Among Us 7 (1994) (“Before
the American Revolution . . . . [t]he care of the insane remained a family
responsibility.”); id. (explaining that “so long as [family] members could provide
the basic necessities of life for afflicted relatives, no other arrangements were
required”).
-10-
Life was different, however, for those who were both mentally ill and
dangerous. See Albert Deutsch, Public Provision for the Mentally Ill in Colonial
America, 10 Soc. Serv. Rev. 606, 606 (1936). They “were confined in barred cells
in the basement,” and “particularly violent individuals” were “restrained . . . using a
‘strait-waistcoat’ or ‘mad shirt,’ or heavy arm and leg chains.” Lynn Gamwell &
Nancy Tomes, Madness in America 20 (1995). It should come as no surprise that
confinement did not include access to guns. See Francis C. Gray, Prison Discipline
in America 16 (Boston, Charles C. Little & James Brown, 1847) (noting that, in early
American jails, “the custom of garnish was established and unquestioned; that is,
the custom of stripping every new comer of his outer clothing, to be sold for liquor”);
Letter from Jonathan Gillet to Family (Dec. 1776), in Imprisoned in America: Prison
Communications: 1776 to Attica, 3, 3–4 (Cynthia Owen Philip ed., 1973) (providing
the account of a Connecticut soldier “made prisoner” who wrote that “they first
disarmed me then plundred me of all I had”).
Justices of the peace and other officials had a lot of discretion when deciding
whether to confine the mentally ill. An early Massachusetts statute empowered
“selectmen” to “take care of the” mentally ill to prevent them from “damnify[ing]
others.” Act of May 3, 1676, reprinted in 5 Records of the Governor & Company
of the Massachusetts Bay in New England 80–81 (Nathaniel V. Shurtleff ed., Boston,
William White, 1853). A 1788 New York statute authorized justices of the peace,
many of whom had no formal legal training, to “lock[] up” and “chain[]” the
“furiously mad” in a “secure place.” Act of Feb. 9, 1778 N. Y. Sess. Laws 645; see
Chester H. Smith, The Justice of the Peace System in the United States, 15 Calif. L.
Rev. 118, 127 (1927) (noting that “justices of the peace are laymen, that they are not
required to be otherwise, and that they are very seldom ‘learned in the law’”). And
a Connecticut law allowed them to order the confinement of “persons under
distraction and unfit to go at large, whose friends do not take care for their safe
confinement.” Edward Warren Capen, The Historical Development of the Poor Law
of Connecticut 62–63 (1905).
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These colonies and states were not the only ones to do it. It was so common
that one manual describing the duties of justices of the peace said that “[a]ny person
may justify confining and beating his friend being mad . . . as is proper in such
circumstances.” James Parker, Conductor Generalis: Or, the Office, Duty and
Authority of Justices of the Peace 291 (New York, John Patterson 1788); see Daniel
Davis, A Practical Treatise upon the Authority and Duty of Justices of the Peace in
Criminal Prosecutions 41 (Boston, Hilliard, Gray, Little, & Wilkins 1828) (“In order
to prevent the commission of a crime, any person may lawfully lay hold of a lunatic
who is about to commit any mischief . . . .”). In England too, they could
“apprehend[]” and “lock[] up” people “disordered in [their] senses” or dangerous
“[l]unatic[s].” Henry Care, English Liberties, or the Free-born Subject’s
Inheritance 329 (6th ed. Providence, John Carter 1774).
Initially, the colonies had no place for them. Sometimes, the solution was jail.
See Deutsch, supra, at 608 (explaining that “[i]ncarceration in jail was the common
solution”). Other times, building a one-person asylum. In Pennsylvania, for
example, the son of a poor man was “bereft of his naturall Senses and [was] turned
quyt madd,” so a judge ordered “three or four p’sons bee hired to build a [l]ittle
[b]lock[-]house at [A]mesland for to put in the . . . madman.” The Record of the
Court at Upland in Pennsylvania, 1676 to 1681, and a Military Journal Kept by
Major E. Denny, 1781 to 1795, 102 (Edward Armstrong ed., Philadelphia, J.B.
Lippincott & Co. 1860). In Massachusetts, a court placed a woman in a “a litle house
7 foote long & 5 foote wide,” which her brother built with funds provided by the
town’s residents. Records of the Town of Braintree, 1640 to 1793, at 26 (Samuel A.
Bates ed., Randolph, Daniel H. Buxford 1886).
Mental hospitals later became the norm. In mid-1700s Pennsylvania, people
grew tired of having those “disorder’d in their [s]enses . . . wander[ing] about, to the
[t]error of their [n]eighbours.” Benjamin Franklin, Some Account of the
Pennsylvania Hospital 3 (I. Bernard Cohen ed., Johns Hopkins Press 1954). Their
solution was the creation of the Pennsylvania Hospital, which “confined . . .
[p]ersons distemper’d in [m]ind” or “deprived of their rational [f]aculties.” Id. at 3–
-12-
4. Less than two decades later, Virginians established the Eastern State Hospital to
house those “deprived of their [s]enses” who “terrif[ied] the [r]est of their [f]ellow
[c]reatures” and could not “help themselves.” Francis Fauquier, Lieutenant
Governor, Va., The Speech of the Honble Francis Fauquier, Esq; His Majesty’s
Lieutenant Governour, and Commander in Chief of the Colony and Dominion of
Virginia to the General Assembly 4 (Nov. 6, 1766) (Williamsburg, Purdie and Dixon
1766); see generally Norman Dain, Disordered Minds: The First Century of Eastern
State Hospital in Williamsburg, Va., 1766-1866 (1st ed. 1971).
The number of mental hospitals steadily grew from there. “The[y] were not
medical facilities designed for treatment; rather, they were intended to separate those
suffering from mental illness from the rest of society.” Wilbur R. Miller, The Social
History of Crime and Punishment in America: An Encyclopedia 1080 (2012). Their
purpose was “to preserve the peace of the community” from those who posed a
danger to others. Alan Dershowitz, The Origins of Preventive Confinement in
Anglo-American Law Part II: The American Experience, 43 U. Cin. L. Rev. 781,
787–88 (1974); see United States v. Jackson, 85 F.4th 468, 476 (8th Cir. 2023)
(Stras, J., dissenting from denial of reh’g en banc) (discussing dangerousness).
Society’s answer to mental illness, in other words, was to lock up anyone who was
“dangerous or disturbing to others.” Dershowitz, supra, at 788.
Confinement led to the loss of liberties. “[T]hose afflicted with mental disease
were generally treated as if they had been thereby stripped of all human attributes,
together with their rights and privileges as human beings.” Deutsch, supra, at 607–
08. Thomas Cooley put it more bluntly with his observation that “the idiot” and “the
lunatic” were “almost universally excluded” from civil liberties “on obvious
grounds.” Cooley, supra, at 29; see Bruen, 597 U.S. at 35–36 (explaining how post-
ratification history can shed light on the Second Amendment’s meaning). Gun rights
were no exception.
By the late 1800s, state legislatures allowed the prosecution of people who
gave guns to the mentally ill. An 1881 Florida law, for example, made it illegal “to
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sell, hire, barter, lend or give to any person or persons of unsound mind any
dangerous weapon, other than an ordinary pocket-knife.” Act of Feb. 4, § 1, 1881
Fla. Laws 87. And in Kansas, it was unlawful to sell “any pistol, revolver or toy
pistol . . . or other dangerous weapons to . . . any person of notoriously unsound
mind.” Act of Mar. 5, § 1, 1883 Kan. Sess. Laws 159. Along with the even longer
tradition of confinement, these laws suggest that society made it a priority to keep
guns out of the hands of anyone who was mentally ill and dangerous. See Heller,
554 U.S. at 626–27 (reaffirming that “nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by . . . the mentally
ill”); McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (“repeat[ing] th[at]
assurance”).
The “burden” imposed by § 922(g)(3) is “comparable,” if less heavy-handed,
than Founding-era laws governing the mentally ill. Bruen, 597 U.S. at 29. It goes
without saying that confinement with straitjackets and chains carries with it a greater
loss of liberty than a temporary loss of gun rights. And the mentally ill had less of
a chance to regain their rights than drug users and addicts do today. See 1
Blackstone, Commentaries *294 (explaining that the law “always imagines . . .
[their] accidental misfortunes may be removed”). Stopping the use of drugs, after
all, restores gun rights under § 922(g)(3). See Carnes, 22 F.4th at 748.
The justification, which is to “keep guns out of the hands of presumptively
risky people,” is also comparable. United States v. Yancey, 621 F.3d 681, 683 (7th
Cir. 2010) (per curiam). It is reflected in colonial-era laws, whether it be disarming
loyalists, see Jackson, 85 F.4th at 471–72 (Stras, J., dissenting from denial of reh’g
en banc), or making sure the mentally ill could not harm themselves or others. At
least as applied to drug users and addicts who pose a danger to others, § 922(g)(3) is
just another example of this “longstanding” tradition. Heller, 554 U.S. at 626–27
n.26.
In Veasley’s view, the analogy is flawed because confining someone has
always required a judicial finding. And so does disarming the mentally ill today,
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which requires an “adjudicat[ion] as a mental defective” or “commit[ment] to a
mental institution.” 18 U.S.C. § 922(g)(4). Drug users and addicts, by contrast,
receive no warning that they are ineligible to possess a firearm. See 18 U.S.C.
§ 922(g)(3).
We reject Veasley’s argument for two reasons. The first is the historical
record, which shows that there was limited process accompanying the confinement
of the mentally ill, particularly given the broad discretion afforded to justices of the
peace. See Bruen, 597 U.S. at 27 (requiring a historical, not a current, analogue).
Second, there is a finding required under § 922(g)(3), it just comes later. Getting a
conviction requires proof beyond a reasonable doubt of “regular drug use,” Carnes,
22 F.4th at 748, and possession of a firearm, not to mention close timing between
the two. See United States v. Mack, 343 F.3d 929, 933 (8th Cir. 2003) (explaining
that the government must “demonstrate that [the defendant] was a ‘user of any
controlled substance’ during the period of time he possessed the firearms” (quoting
18 U.S.C. § 922(g)(3))). The procedure may not be identical, but it does not have to
be. See Bruen, 597 U.S. at 30 (noting that a modern-day regulation need not be a
“dead ringer for [a] historical precursor[]”).
2.
Another “historical analogue” makes it even clearer that Veasley’s facial
challenge cannot succeed. Id. This one focuses on conduct, not status. As the above
discussion makes clear, possession of a firearm under § 922(g)(3) must accompany
other conduct: drug use. In this way, it resembles the Founding-era criminal
prohibition on taking up arms to terrify the people. See George Webb, The Office of
Authority of the Justice of the Peace 92–93 (Williamsburg, William Parks 1736)
(discussing Virginia law); see also Act For the Punishing of Criminal Offenders, Ch.
11, 96 (1692), reprinted in The Charters and General Laws of the Colony and
Province of Massachusetts Bay 237, 240 (Boston, T.B. Wait & Co. 1814); Statute
of Northampton, 2 Edw. 3, c.3 (1328).
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The offense, called Terror of the People, has a lengthy historical pedigree. See
Jackson, 85 F.4th at 474 (Stras, J., dissenting from denial of reh’g en banc).
Although it started as a common-law offense, England formalized it in the 1328
Statute of Northampton. See Bruen, 597 U.S. at 40–45 (discussing it). In its earliest
form, it prohibited going “armed to terrify the King’s subjects.” Id. at 43–44. At
first, arms did not include firearms, which did not reach Europe until the mid-1500s.
See id. at 41 (collecting sources).
As firearms became more common, however, so did the idea of criminalizing
their misuse. See id. at 46 (discussing early Massachusetts and New Hampshire
laws). Under one Massachusetts law, for example, justices of the peace could
“arrest[] all . . . disturbers, or breakers of the peace . . . armed offensively” and
“commit [them] to prison.” Act of Jan. 29, 1795, § 2, reprinted in 2 The Laws of the
Commonwealth of Massachusetts, from November 28, 1780 to February 28, 1807,
at 652–53 (Boston, J.T. Buckingham 1807). Likewise, in Kentucky, “[r]iding or
going armed with dangerous or unusual weapons, [wa]s a crime against the public
peace, by terrifying the people of the land, which [wa]s punishable by forfeiture of
the arms, and fine and imprisonment.” Charles Humphreys, A Compendium of the
Common Law in Force in Kentucky, to Which Is Prefixed a Brief Summary of the
Laws of the United States 482 (Lexington, William Gibbs Hunt 1822).
But the offense was not about mere possession, or even openly carrying a
firearm. See Bruen, 597 U.S. at 45. It required more, the “offensive[]” use of a
firearm in a way that terrorized others. Webb, supra, at 92; see Bruen, 597 U.S. at
45 (explaining that the offense required public carry accompanied by “such
Circumstances as are apt to terrify the People” (quoting 1 Pleas of the Crown 136));
id. at 50 (noting that early American laws “prohibit[ed] bearing arms in a way that
spreads ‘fear’ or ‘terror’ among the people”). One example was Robert Huntly’s
decision to ride while armed in the North Carolina countryside with a stated intent
to kill James Ratcliff, with whom he had been feuding at the time. See State v.
Huntly, 25 N.C. (3 Ired.) 418, 421 (1843). In that case as well as others, terrorizing
behavior had to accompany the possession. See id; see also O’Neill v. State, 16 Ala.
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65, 67 (1849) (reasoning that “no quarrelsome words merely” would constitute an
affray but that “if persons arm themselves with deadly or unusual weapons for the
purpose of an affray, and in such manner as to strike terror to the people, they may
be guilty of this offense” (citation omitted)); cf. Simpson v. State, 13 Tenn. (5 Yer.)
356, 360 (1833) (noting that the mere carrying of arms was not alone “a necessarily
consequent operation as terror to the people”).
Just like its historical counterparts, § 922(g)(3) does not criminalize mere
possession. It requires another act, the taking of drugs, which itself can cause
terrifying and dangerous behavior. See Landry, supra, at 108. The decision to
engage in illegal and dangerous conduct, in other words, is what leads to a temporary
deprivation, which ends once the illegal behavior does. In that way, § 922(g)(3)
imposes a “comparable burden” on the right to bear arms. Bruen, 597 U.S. at 29.
At least for some drug users, the justification is also “comparable.” Id.
Controlled substances can induce terrifying conduct, made all the more so by the
possession of a firearm. All it takes is a few minutes flipping through the pages of
the Federal Reporter to locate some examples. See, e.g., United States v. Ferguson,
889 F.3d 314, 315 (7th Cir. 2018) (“[H]igh and drunk” 17-year old shot his
carjacking victim “several times” while “[t]he victim’s niece and the niece’s 4-year-
old daughter witnessed.”); Hadley v. Gutierrez, 526 F.3d 1324, 1327 (11th Cir.
2008) (“[W]hile high on cocaine, Hadley entered a Publix supermarket yelling,
‘Help me, help me, Jehovah God please help me!’ and [officers], upon arriving at
the store, found Hadley running around and knocking items off of the shelves.”);
United States v. Simmons, 260 F.3d 937, 938 (8th Cir. 2001) (“While high on
painkillers,” the defendant conspired to commit a heist that included “shoot[ing] any
police officers who responded to the scene.”).
To be sure, not every drug user or addict will terrify others, even with a
firearm. Consider the 80-year-old grandmother who uses marijuana for a chronic
medical condition and keeps a pistol tucked away for her own safety. It is
exceedingly unlikely she will pose a danger or induce terror in others. But those are
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details relevant to an as-applied challenge, not a facial one. For our purposes, all we
need to know is that at least some drug users and addicts fall within a class of people
who historically have had limits placed on their right to bear arms.
* * *
Consistent with Seay, “we reject [Veasley’s] facial challenge to
§ 922(g)[(3)].” 620 F.3d at 925. But we add to its analysis by doing the historical
work and “analogical reasoning” that Bruen requires. 597 U.S. at 29–30; cf.
Jackson, 69 F.4th at 501–06 (doing the same when analyzing the constitutionality of
§ 922(g)(1), the felon-in-possession statute). What it tells us is that, for some drug
users, § 922(g)(3) is “analogous enough to pass constitutional muster.” Bruen, 597
U.S. at 30. Whether it is for others is a question for another day.
IV.
We accordingly affirm the judgment of the district court.
GRUENDER, Circuit Judge, concurring in the judgment.
I concur in the judgment. I write separately because I believe the court’s
inquiry into historical analogues is unnecessary in light of our prior caselaw. In
United States v. Seay, 620 F.3d 919 (8th Cir. 2010), we were confronted, as here,
with a Second Amendment facial challenge to 18 U.S.C. § 922(g)(3). We rejected
the defendant’s facial challenge after concluding that “§ 922(g)(3) is the type of
longstanding prohibition on the possession of firearms that Heller declared
presumptively lawful.” Id. at 925 (internal quotation marks omitted); see District of
Columbia v. Heller, 554 U.S. 570, 627 & n.26 (2008). Because Seay predates New
York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the court asserts we
must “add to [Seay’s] analysis by doing the historical work and ‘analogical
reasoning’ that Bruen requires.” Ante at 18. In my view, however, we are bound by
Seay, and no further inquiry is necessary.
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In Heller, 554 U.S. at 627 & n.26, the Supreme Court identified a non-
exhaustive list of “presumptively lawful regulatory measures.” Nothing in Bruen
disturbed or cast doubt on the constitutionality of those regulatory measures deemed
by Heller to be “presumptively lawful.” See, e.g., Bruen, 597 U.S at 10 (stating that
the Court’s holding was “consistent with Heller”); id. at 24 (stating that the Court
was “reiterat[ing] . . . the standard for applying the Second Amendment”); id. at 26
(stating that the Court was “apply[ing]” the test “set forth in Heller”); id. at 27
(stating that the Court was “[f]ollowing the course chartered by Heller”).
We have already categorized § 922(g)(3) as a presumptively lawful regulatory
measure consistent with Heller. See Seay, 620 F.3d at 925. Because Bruen did not
disturb Seay, we remain bound by Seay. See United States v. Sitladeen, 64 F.4th 978,
983-87 (8th Cir. 2023) (holding, in the context of § 922(g)(5)(A), that we were
bound by a pre-Bruen case); United States v. Jackson, 69 F.4th 495, 506 (8th Cir.
2023) (Smith, C.J., concurring) (stating, in a post-Bruen challenge to § 922(g)(1),
that “Heller remains the relevant precedent we are bound to apply”); Vincent v.
Garland, 80 F.4th 1197 (10th Cir. 2023) (rejecting a defendant’s challenge to
§ 922(g)(1) as foreclosed by the court’s pre-Bruen precedent); United States v.
Dubois, 94 F.4th 1284, 1291-93 (11th Cir. 2024) (rejecting a defendant’s challenge
to § 922(g)(1) in light of the court’s prior caselaw). Having determined that Seay
controls this case, I also would avoid the court’s dicta regarding potential as-applied
challenges. See Jackson, 69 F.4th at 502 (concluding “that there is no need for
felony-by-felony litigation regarding the constitutionality of § 922(g)(1)”).
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