Federal Firearms Prohibitions for Unlawful Substance Use or Substance Use Disorder

Facts of the Case

In November 2020, Devonte Veasley was indicted for possessing a firearm while using or addicted to a controlled substance (18 U.S.C. § 922(g)(3) (2020)). In May 2022, he pleaded guilty in the U.S. District Court for the Southern District of Iowa.

A month later, the U.S. Supreme Court issued its ruling in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), implementing a two-part test for constitutionality based on “text and historical understanding.” The Court ruled a law is unconstitutional if it prohibits conduct plainly covered by the Second Amendment and is not consistent with the United States’ historical tradition of firearm regulation.

Mr. Veasley’s appeal to the Eighth Circuit claimed the lower court should have dismissed his charge or allowed withdrawal of his guilty plea following the Bruen decision. He asserted that § 922(g)(3) is facially unconstitutional, meaning it is unconstitutional in all contexts and not just as applied in the specific circumstances of his case, relying on United States v. Seay, 620F.3d 919 (8th Cir. 2010).

Ruling and Reasoning

The U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s judgment, thus rejecting Mr. Veasley’s challenge to the constitutionality of § 922(g)(3). The court focused on both the second step of the Bruen test, which requires consistency with the historical tradition of United States firearm regulation, and the court’s directive to find a “well-established and representative historical analog,” what the court calls reasoning by analogy, if no such tradition exists (Bruen, p 30).

The Veasley court’s reasoning began by addressing the penalty for violating § 922(g)(3): up to 15 years or more in prison for repeat offenders. Citing Seay, the court said that the constitutionality of § 922(g)(3) was up for de novo review; its review considered the Second Amendment and the Bruen “two-part test.” Under the first criterion, the law in question must prohibit conduct covered by the Second Amendment. The second criterion requires the law in question to be consistent with previous “historical understanding” of firearm regulation. If no historical understanding exists, Bruen instructs courts to “reason by analogy.”

The Veasley court then considered whether § 922(g)(3) is consistent with the historical tradition of firearm regulation by examining the historical regulation of “intoxicating substances.” The court found some historical precedent for regulating use of firearms while intoxicated but found no precedent regarding possession while intoxicated. Moreover, the court did not consider § 922(g)(3) to qualify as historical precedent because its passage in 1968 was deemed too recent. It concluded that gun dispossession for intoxication “is a modern solution to a centuries old problem” (Veasley, p 912).

The court went on to state that, because modern and historical drug use are too dissimilar for their respective laws to be compared, it must use the “reasoning by analogy” recommended by Bruen. It analogized recreational drug intoxication to mental illness. The court argued that, in some cases, recreational drug intoxication and mental illness both induce deficits in attention and working memory. The court concluded, “[T]hat the analogy…works for some, and that the mentally ill sometimes lost their guns, means that § 922(g)(3) cannot be facially unconstitutional” (Veasley, p 913). The court also cited historical analogies between intoxication and mental illness. For example, Dr. Benjamin Rush, signatory of the Declaration of Independence and founder of the American Psychiatric Association, described drunkenness as a “temporary fit of madness.”

The court’s analogy between drug intoxication and mental illness motivated its search for historical precedent for § 922(g)(3) in 17th and 18th century laws pertaining to people who appeared to have mental illness. The court referenced legal views on mental illness, intoxication, and firearm possession found in 17th and 18th century writings as well as 17th century treatment of persons with mental illness who were viewed as dangerous. For instance, people with mental illness who were also deemed dangerous were barred from possessing firearms. It also noted that psychiatric hospitals were used to confine anyone who was deemed “dangerous or disturbing to others” in the 18th century (Dershowitz A. The origins of preventive confinement in Anglo-American law–part II …U Cin L Rev. 1974 Jan; 43:781–846, p 788).

The court further inferred associations among drug use, dangerousness, and mental illness via reasoning by analogy with laws placing limits on gun possession. The opinion referenced several 18th and 19th century laws in Massachusetts and Kentucky that barred gun ownership by people who “terrorized” the public. The court reasoned that “some drug users and addicts fall within a class of people who historically have had limits placed on their right to bear arms” (Veasley, p 918). Similarly, colonial era laws were intended to restrict access to firearms by people considered “risky” or dangerous, and historically, gun rights were curtailed in some people who used or were addicted to illegal substances. Therefore, § 922(g)(3) is facially constitutional because there is precedent for disarming some people for intoxication, and so the Eighth Circuit affirmed the lower court’s judgment.