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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:23-CR-21-FL-RN-1
UNITED STATES OF AMERICA )
) GOVERNMENT’S OBJECTIONS
v. ) TO MAGISTRATE’S MEMORANDUM
) AND RECOMMENDATION
CARLOS ALSTON )
The United States of America, by and through the United States Attorney for
the Eastern District of North Carolina, hereby files its objections to the magistrate
judge’s Memorandum & Recommendation (DE 27) (hereinafter “M&R”) regarding
Defendant’s Motion to Dismiss the Indictment (DE 17). In the M&R, the magistrate
judge recommended this Court dismiss Count Two of the Indictment, charging
possession of a firearm by an unlawful user of, or person addicted to, controlled
substances, in violation of 18 U.S.C. § 922(g)(3), as unconstitutional. M&R at 40. For
the reasons stated in its Response to the Motion to Dismiss (DE 20) and Supplemental
Brief (DE 24), both incorporated herein by this reference, and for the reasons stated
below, the government objects to the magistrate judge’s conclusion that 18 U.S.C.
§922(g)(3) is unconstitutional in light of the Supreme Court’s recent holding in New
York State Rifle & Pistol Ass’n, Inc. v. Bruen. 142 S. Ct. 2111 (2022).
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STANDARD OF REVIEW
The portions of the magistrate’s M&R to which either party objects are
reviewed by this Court de novo. 28 U.S.C. § 636(b)(1); Elijah v. Dunbar, 66 F.4th 454,
460 (4th Cir. 2023).
ARGUMENT
I. Alston, as a regular unlawful drug user and person addicted to illegal
controlled substances, is not a person covered by the Second Amendment’s
rights guarantee.
The government objects to the portion of the M&R (Section II(B), pp. 11-14)
finding that Alston is part of “the people” who enjoy an individual right of firearm
possession under the Second Amendment. As the court noted elsewhere in the M&R,
“Heller and McDonald established that, at the very least, law-abiding Americans
enjoy a Second Amendment right to possess conventional firearms within their homes
for self-defense.” M&R at 5 (emphasis added). Bruen did not disturb the
understanding of the Second Amendment’s right belonging only to those who are law-
abiding. See Bruen, 142 S. Ct. at 2122, 2124-25, 2131, 2132-22, 2134, 2135, 2138,
2150, 2156 (the majority opinion repeatedly refers to the Second Amendment
protecting the rights of “law-abiding” citizens, as do the Alito and Kavanaugh/Roberts
concurrences). The Bruen holding was consistent with the Heller and McDonald
precedent on the point that the Second Amendment protects rights of law-abiding
citizens. And though the magistrate would have this Court hold that the Second
Amendment affords its rights to all Americans (M&R at pp. 12-13), this Court is
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bound by the Fourth Circuit’s interpretation of this issue post-Heller, which does not
go so far as to include all Americans amongst those who enjoy Second Amendment
rights.
The Bill of Rights secures rights “inherited from our English ancestors, and
which had from time immemorial been subject to certain well-recognized exceptions.”
Robertson v. Baldwin, 165 U.S. 275, 281 (1897). “In incorporating these principles
into the fundamental law there was no intention of disregarding the exceptions,
which continued to be recognized as if they had been formally expressed.” Ibid. The
First Amendment, for example, allows legislatures to ban true threats, even though
a threat is a form of “speech.” See Counterman v. Colorado, 143 S. Ct. 2106, 2114
(2023). And the Second Amendment allows legislatures to ban dangerous and
unusual weapons, such as short-barreled shotguns, even though they are “arms.” See
Heller, 554 U.S. at 624-625. So too, history and tradition establish that the Second
Amendment allows legislatures to disarm persons who are not law-abiding,
responsible citizens, regardless of whether they are among “the people.”
The magistrate judge would read Bruen’s analytical framework to apply to “all
members of the political community” regardless of whether they are law-abiding.
M&R at 12-13. Per the magistrate judge, this interpretation would square with our
understanding of other constitutional provisions, which generally apply to
lawbreakers and law-abiding individuals without distinction. M&R at 12-13. But the
Fourth Circuit has made it clear that the Second Amendment’s rights are guaranteed
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to a narrower category of individuals. In United States v. Carpio-Leon, a post-Heller
decision, the Fourth Circuit stated explicitly that unlawful aliens do not possess
Second Amendment rights because they cannot be considered law-abiding. 701 F.3d
974, 979 (4th Cir. 2012) (“[I]llegal aliens do not belong to the class of law-abiding
members of the political community to whom the Second Amendment gives
protection.”) (emphasis added). In that decision, a decade prior to Bruen, the Fourth
Circuit discussed its interpretation as squaring with the founding era understanding
of firearms rights belonging to those who were law-abiding and non-dangerous. Id. at
979-81.
Similarly, in post-Heller opinions examining the constitutionality of 18 U.S.C.
§ 922(g)(1), the Fourth Circuit held that firearms regulations which did not proscribe
conduct by law-abiding citizens in defense of hearth and home were “presumptively
lawful.” United States v. Pruess, 703 F.3d 242, 245-46 (4th Cir. 2012) (citing United
States v. Moore, 666 F.3d 313, 318 (4th Cir. 2012)). The Fourth Circuit held that
“conviction of a felony necessarily removes one from the class of ‘law-abiding,
responsible citizens’ for the purposes of the Second Amendment.” Hamilton v.
Pallozzi, 848 F.3d 614, 626 (4th Cir. 2017). The court referred to a defendant’s being
a law-abiding responsible citizen as a requirement for a successful Second
Amendment challenge. Moore, 666 F.3d at 320. A defendant who could not show that
he was law-abiding had “no right—much less a fundamental right—to bear arms.”
Pruess, 703 F.3d at 247.
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Defendant, who possessed nearly an ounce of marijuana—a federally
controlled, Schedule I substance—at the time of his arrest and who was then a daily
unlawful user of the drug, cannot be considered “law-abiding.” As a result, the Second
Amendment’s guarantee of a right to “use arms in defense of hearth and home” to
“law-abiding responsible citizens” does not apply to him. District of Columbia v.
Heller, 554 U.S. 570, 635 (2008).1 Like the defendants considered in Pruess, Moore
and Hamilton, Alston “flunks the law-abiding responsible citizen requirement.”
Pruess, 703 F.3d at 246 (emphasis added). As a result, he is not amongst “the people”
who enjoy Second Amendment rights.
Justice Alito stressed Bruen’s limited reach, saying the majority “holds that a
State may not enforce a law . . . that effectively prevents its law-abiding residents
from carrying a gun” to “defend themselves.” 142 S. Ct. at 2157 (Alito, J., concurring)
(emphasis added). “That is all we decide,” he emphasized. Id. (emphasis added). “Our
holding decides nothing about who may lawfully possess a firearm or the
requirements that must be met to buy a gun.” Id.; see also id. at 2162-63 (Kavanaugh,
J., concurring) (“Going forward, . . . the 43 states that employ objective shall-issue
licensing regimes for carrying handguns for self-defense may continue to do so.”). The
magistrate judge’s finding would do exactly what Justice Alito says the Supreme
1
To the extent the Court does not read Bruen’s law-abiding language as a limitation on the Second Amendment right
itself, the government argues in the alternative that Bruen’s analytical framework applies only to those cases dealing
with law-abiding citizens, and a different analysis applies to category-based firearms regulations, like 18 U.S.C.
§ 922(g)(3), that apply to non-law-abiding citizens.
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Court did not intend, by repurposing Bruen to expand the categories of who may
lawfully possess a firearm. This Court should decline to engage in such unintended
expansion by finding that Alston, as someone who is not law-abiding, is not amongst
those covered by the Second Amendment’s rights provision.
II. Alston’s conduct, in possessing a firearm while a user of and addicted
to controlled substances, is not protected by the Second Amendment.
The United States objects to the magistrate judge’s conclusion that Alston’s
conduct is covered by the Second Amendment’s rights guarantee (set out briefly in
Section II(D) of the M&R, at pp. 21-22). The magistrate defined Alston’s conduct as
“possessing a firearm.” M&R at 21. The government argues that Alston’s conduct was,
instead, possessing a firearm while being an unlawful drug user. The government
argues that Alston’s conduct in possessing the firearm cannot be divorced from the
then-existing condition which made such possession inherently dangerous. Section
922(g)(3) does not proscribe possession of a gun; it proscribes possession of a gun by
ongoing, long-term users of illegal drugs. Alston did not simply possess a gun. Rather,
he possessed a gun while he had a raging drug use problem. This is the conduct
proscribed by the statute, and it is not covered by the Second Amendment.
As the Fourth Circuit noted, in a post-Heller inquiry into the constitutionality
of a challenged gun law, “[t]he first question is whether the challenged law imposes
a burden on conduct falling within the scope of the Second Amendment’s guarantee.”
United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (internal citation omitted).
This first step of the analysis remains in effect post-Bruen. 142 S. Ct. at 2127. In
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Chester, the Fourth Circuit analyzed whether 18 U.S.C. § 922(g)(9) (disarming
domestic violence misdemeanants) passed constitutional muster. In answering “the
first question” regarding whether the conduct fell within the scope of the Second
Amendment, the Fourth Circuit framed the question as “whether the possession of a
firearm in the home by a domestic violence misdemeanant is protected by the Second
Amendment.” 628 F.3d at 680. Notably, the Fourth Circuit did not divorce the act
(possession of a gun) from the characteristic which makes such possession unlawful
(being a domestic violence misdemeanant) when making its determination of whether
the conduct was covered by the Second Amendment. See id. This Court should do the
same, finding that the conduct proscribed by Section 922(g)(3) is not possession, but
possession by an unlawful drug user.
While the Second Amendment protects the rights of law-abiding individuals to
possess guns within their homes for self-defense and to carry them outside the home
for other lawful purposes, nothing about the Amendment’s text guarantees this right
to individuals who are actively engaged in long-term violation of the laws prohibiting
illegal drug use. See United States v. Le, No. 4:23-CR-14, 2023 WL 3016297, at *5
(S.D. Iowa Apr. 11, 2023). Certainly, such conduct is not clearly covered by the plain
text of the Second Amendment, and because it is not, the inquiry should end here –
without the burden shifting to the government to prove that there is a historical
statute analogous to Section 922(g)(3). See Bruen, 142 S. Ct. at 2127 (holding “when
the Second Amendment's plain text covers an individual's conduct, the Constitution
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presumptively protects that conduct” after which showing, “the government must
demonstrate that the regulation is consistent with this Nation's historical tradition
of firearm regulation.”). Because the plain text of the Second Amendment does not
cover the possession of a firearm by a regular drug user, the Court should use the
standard of review applicable to all other facial constitutional challenges, which
requires defendants prove “that no set of circumstances exists under which [the
statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).
Defendant has made no such showing, and thus his facial constitutional challenge
should fail.
III. Section 922(g)(3) is consistent with historical tradition and is
constitutional.
The United States objects to the magistrate’s finding (set out in Section II(D)
of the M&R, pp. 22-40) that 18 U.S.C. § 922(g)(3) is inconsistent with the nation’s
historical tradition of firearms regulation. Because Section 922(g)(3) addresses a
societal problem in drug addiction and unlawful use which did not exist in widespread
form until the twentieth century, there is no founding- or Reconstruction-era
“historical twin” to the statute. In such cases, Bruen allows for reasoning by analogy
to historical laws that are “relevantly similar.” 142 S. Ct. at 2132. Section 922(g)(3)
is sufficiently analogous, for constitutional purposes, to historical statutes disarming
the mentally ill, intoxicated individuals and those believed to be dangerous. Other
courts have so found. See United States v. Seiwert, No. 20-cr-443, 2022 WL 4534605
(N.D. Ill. Sept. 28, 2022); United States v. Posey, No. 22-cr-83, –– F.Supp.3d ––, 2023
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WL 1869095 (N.D. Ind. Feb. 9, 2023); United States v. Randall, No. 22-cr-99, ––
F.Supp.3d ––, 2023 WL 3171609 (S.D. Iowa Feb. 14, 2023); United States v.
Stennerson, No. 22-cr-139, 2023 WL 2214351 (D. Mont. Feb. 24, 2023); United States
v. Cleveland-McMichael, No. 21-cr-119, 2023 WL 2613548 (D. Alaska Mar. 23, 2023);
United States v. Le, No. 23-cr-14, –– F.Supp.3d ––, 2023 WL 3016297 (S.D. Iowa Apr.
11, 2023); United States v. Costianes, No. 21-cr-0458, –– F.Supp.3d ––, 2023 WL
3550972 (D. Md. May 18, 2023); United States v. Hart, No. 22-cr-114, 2023 WL
4144834 (W.D. Mo. June 6, 2023) (report and recommendation), adopted by 2023 WL
4141044 (W.D. Mo. June 22, 2023); United States v. Ray, No. 21-cr-57, 2023 WL
4378152 (S.D.W. Va. July 6, 2023); United States v. Lewis, No. 22-cr-222, ––
F.Supp.3d ––, 2023 WL 4604563 (S.D. Ala. July 18, 2023); United States v. Beaty, No.
22-cr-95, 2023 WL 4662247 (M.D. Fla. July 20, 2023); but see United States v. Daniels,
No. 22-60596, ––F.4th–– , 2023 WL 5091317 (5th Cir. 2023) (finding Section 922(g)(3)
unconstitutional as applied to a particular defendant while “emphasizing the
narrowness of [its] holding” and “not invalidat[ing] the statute in all its
applications”).2
2
The Daniels decision, which is not binding on the Fourth Circuit or this Court, was controlled, at least in part, by the
Fifth Circuit’s decision in United States v. Rahimi, for which the Supreme Court has granted certiorari. 61 F.4th 443
(5th Cir. 2023), cert. granted, No. 22-915, –– U.S. ––, 2023 WL 4278450 (June 30, 2023). Relying on Rahimi, the
Daniels court rejected the government’s argument that unlawful users of controlled substances are not “law-abiding,
responsible citizens.” 2023 WL 5091317, at *4. The Daniels court also demanded too close a historical analogue for
Section 922(g)(3) and incorrectly rejected the “undeniable throughline in all [cited] historical sources,” that
“Founding-era governments took guns away from persons perceived to be dangerous” as a historical analogue for
Congress’s disarmament of dangerous illegal drug users. Id. at *13.
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A. Drug abuse is a modern societal problem which did not exist at
the time of the founding.
The unlawful use of controlled substances was unprecedented at the founding.
Through much of the 19th century there was no need for firearm prohibitions
addressing drugs other than alcohol because such substances were not widely used
as intoxicants in the United States until the late 19th and early 20th centuries. See
David F. Musto, Drugs in America: A Documentary History 188-192 (NYU 2002); Erik
Grant Luna, Our Vietnam: The Prohibition Apocalypse, 46 DePaul L. Rev. 483, 487
(1997) (“[N]arcotics addiction was a negligible phenomenon in the eighteenth and
nineteenth centuries.”). Only in 1877 did Nevada became the first state to require a
prescription for the purchase of any drug (in that case, opium). Elizabeth Kelly Gray,
Habit Forming: Drug Addiction in America, 1776-1914 25 (2023). Because of this
history, “[i]llegal drug trafficking,” in particular, “is a largely modern crime.” United
States v. Alaniz, 69 F.4th 1124, 1129 (9th Cir. 2023) (upholding sentencing
enhancement for possessing dangerous weapon during drug offense after Bruen).
Marijuana is no exception. There are essentially “no accounts or reports” of
“cannabis being used as an intoxicant during the period when the plant was widely
cultivated as an agricultural commodity.” John Rublowsky, The Stoned Age: A History
of Drugs in America 98 (1974). Even by the 1930s, Americans lacked “any lengthy or
broad experience” with marijuana, Musto, supra, at 192, and prohibitions did not
emerge until the early 20th century. Because the widespread use of and addiction to
illegal controlled substances is a modern problem not confronted in the founding era,
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the government need only prove that there exists a relevantly similar historical
analogue to Section 922(g)(3). 142 S. Ct. at 2132. For the reasons set forth below, it
has done so.
B. Section 922(g)(3) is analogous to historical statutes allowing the
burdening of the rights of the mentally ill.
The government objects to the magistrate judge’s finding (at Section
II(D)(2)(a), pp. 22-28 of the M&R) that historical regulations disarming the mentally
ill are not sufficiently analogous Section 922(g)(3). The magistrate found that,
compared to laws which burdened the rights of the mentally ill, Section 922(g)(3) is
“both over-and-underinclusive.” M&R at 26. But this misapplies Bruen. Expecting
Section 922(g)(3) to be a perfect match to historical examples addressing different
problems indicates the magistrate was incorrectly seeking something akin to a
“historical twin.” Bruen, 142 S. Ct. at 2133. Bruen itself says the government need
not jump through that hoop. The government need only provide regulations which
are “relevantly similar,” which requires analysis of “how and why the regulations
burden a law-abiding citizen's right to armed self-defense.” Id. at 2132-33.
As the magistrate judge recognizes, English law in existence at the time of (and
just after) the founding allowed for at least some detention of the acutely mentally
ill. See M&R at 23-25. English law in existence at the time of the founding can rightly
inform the Court regarding the founders’ understanding of the scope of nascent
American rights. See Bruen, 142 S. Ct. at 2139. These laws allowing for the temporary
deprivations of mentally ill citizens’ rights are relevantly similar to Section 922(g)(3)’s
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gun rights restriction against illegal drug users. The “longstanding” burdening of the
rights of mentally ill individuals was recognized in Heller and McDonald. Heller, 554
U.S. at 626 (“longstanding prohibitions on the possession of firearms by . . . the
mentally ill” were among the constitutionally permissible regulations that the Court
in Heller said should not “be taken to cast doubt on.”).
Turning first to the why question, both historical regulations burdening the
mentally ill and Section 922(g)(3) were crafted to protect the public. The existence of
the historical regulations show that eighteenth century lawmakers were concerned
with the dangerousness posed by those who were suffering from mental illness.
Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v.
Heller and Jud. Ipse Dixit, 60 Hastings L.J. 1371, 1377 (2009); accord Don B. Kates
& Clayton E. Cramer, Second Amendment Limitations and Criminological
Considerations, 60 HASTINGS L.J. 1339, 1361 n. 136 (2009). So too was Congress
when, in 1968, it enacted Section 922(g)(3) “to keep guns out of the hands of
presumptively risky people,” including unlawful drug users. United States v. Yancey,
621 F.3d 681, 683 (7th Cir. 2010). As the Seventh Circuit reasoned in Yancey,
“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.” Id.
at 685.
With regard to the how question, the statutes are undoubtedly different, but
the traditional route (physically detaining the mentally ill) was necessarily more
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burdensome than simple disarmament. As the magistrate judge noted in finding that
Section 922(n) is constitutional, “it stands to reason” that if a statute that allows for
the detention of an individual is constitutional, then the government “had the ability
to impose lesser restrictions on a defendant’s conduct, such as restricting a
defendant’s” firearms rights. M&R at 17. The magistrate judge notes that the
detention of the mentally ill person was only allowed so long as the fit of madness
lasted. M&R at 26. This is similar to the prohibition in Section 922(g)(3), which lasts
only so long as the person is a recent, regular, long-time user of unlawful controlled
substances. Yancey, 621 F.3d at 687. Both regulations burden rights only
temporarily, and Section 922(g)(3) is less restrictive, because unlike the mentally ill
individual, whose liberties were constrained based upon circumstances out of his
ability to cease or control, a person subject to 922(g)(3)’s prohibition may regain his
unfettered firearm possession rights at any time upon his choice to cease use of
unlawful substances. Yancey, 621 F.3d at 686-87 (“[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…the mentally ill.”).
In determining that Section 922(g)(3) is insufficiently analogous to eighteenth
century statutes detaining the mentally ill, the magistrate judge notes that Section
922(g)(3) punishes an individual more severely than historical statutes temporarily
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constraining the liberty of the mentally ill and cites the possible punishments for
violation. M&R at 27. However, considering the potential punishment for the offenses
is irrelevant to whether Section 922(g)(3) is constitutional under the Second
Amendment. The questions for the court are whether (1) the defendant has a Second
Amendment right, and (2) if so, whether it can be burdened. Straying into whether
punishment under the laws is analogously similar to historical regulation goes beyond
the question at issue.
Finally, both the Heller court and the Kavanaugh/Alito concurrence in Bruen
were careful to state that the court’s decisions were not meant to cast doubt on
regulations disarming “felons and the mentally ill.” Bruen, 142 S. Ct. at 2162
(Kavanaugh, J. concurring); see Robert Dowlut, The Right to Arms: Does the
Constitution or the Predilection of Judges Reign?, 36 OKLA L.REV. 65, 96 (1983)
(“Colonial and English societies of the eighteenth century, as well as their modern
counterparts, have excluded infants, idiots, lunatics, and felons [from possessing
firearms].”). Because possession of firearms by unlawful drug users is analogously
dangerous to possession of firearms by the mentally ill, it stands to reason by analogy
that the Bruen decision similarly should not cast doubt upon regulations prohibiting
possession by unlawful drug users. Yancey, 621 F.3d at 685. Though Section 922(g)(4)
disarms those found to be mentally defective, it misses wide swaths of people who are
similarly dangerous as a result of their ongoing drug addictions who have not been
previously committed to a mental institution. Section 922(g)(3)’s disarmament of
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those who are current (or very recent) illegal drug users is necessary to protect the
public in the same way that Section 922(g)(4) is necessary, and both are consistent
with the founders’ understanding that the temporary detention and rights
deprivation of mentally ill persons was permissible under the constitution.
C. Section 922(g)(3) is analogous to historical statutes disarming the
intoxicated.
The government objects to the magistrate judge’s finding (at Section
II(D)(2)(b), pp. 28-34 of the M&R) that historical regulations disarming the
intoxicated are not sufficiently analogous Section 922(g)(3). Regulations aimed at
curbing gun use or possession by intoxicated individuals have existed since colonial
days. Section 922(g)(3)’s passage in the twentieth century reflects a natural evolution
of these laws to address the proliferation of illegal addictive substances while
addressing the need to preserve the safety of the public that the founding-era
lawmakers recognized.
The founding generation recognized that those who regularly became
intoxicated threatened the social and political order. See, e.g., Benjamin Rush, An
Inquiry into the Effects of Ardent Spirits Upon the Human Body and Mind 6 (1812)
(describing drunkenness as a “temporary fit of madness”). A 1658 Massachusetts law,
for example, allowed constables to apprehend those “overtaken with drink” and keep
them “in close custody” until brought before a magistrate. The Charters & General
Laws of the Colony and Province of Massachusetts Bay 82 (1814). Founding-era
legislatures also adopted specific measures to separate firearms and alcohol,
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including laws regulating firearm use by individuals deemed likely to become
intoxicated. A 1655 Virginia law prohibited “shoot[ing] any gunns at drinkeing
[events],” regardless of whether attendees actually became intoxicated. 1 William
Waller Hening, Statutes at Large; Being a Collection of All the Laws of Virginia 401-
02 (1823). A 1771 New York law similarly barred firing guns during the New Year’s
holiday, a restriction that “was aimed at preventing the ‘great Damages … frequently
done on [those days] by persons … being often intoxicated with Liquor.’” District of
Columbia v. Heller, 554 U.S. 570, 632 (2008) (quoting 5 Colonial Laws of New York
244-46 (1894)). And a 1731 Rhode Island law forbade firing guns or pistols in any
tavern at night. See Acts & Laws of the English Colony of Rhode-Island & Providence-
Plantations 120 (Hall, 1767). The M&R notes (pp. 28-32) that these laws did not
restrict firearm possession outright, were short-lived, or may have been enacted for
other public safety reasons. But they nevertheless show a tradition of limiting firearm
use by specific groups viewed as likely to become intoxicated, just as Section 922(g)(3)
limits firearm possession by persons with current, long-term illegal drug use
problems, who are similarly likely to become intoxicated by such drugs.
Additionally, 18th-century militia laws reflected legislatures’ significant
authority to separate firearms and alcohol. New Jersey, Pennsylvania, and South
Carolina disarmed or authorized the confinement of intoxicated militia members. See
2 Arthur Vollmer, U.S. Selective Serv. Sys., Military Obligation: The American
Tradition, pt. 8, New Jersey, at 25-26 (1947) (1746 law disarming those who appeared
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“in [a]rms disguised in [l]iquor”); id. pt. 11, Pennsylvania, at 97 (1780 law disarming
those “found drunk”); id. pt. 13, South Carolina, at 96 (1782 law allowing officers to
be cashiered or “confined till sober”). Many other laws forbade selling “any Strong
Liquor” near the locations where militias mustered and trained, indicating again the
colonial and founding-era understanding that guns and intoxicants should not mix.
See, e.g., 2 Vollmer, supra, pt. 5, Maryland, at 93 (1756 law); id. pt. 3, Delaware, at
13 (1756 law); id. pt. 8, New Jersey, at 31 (1746 law) id. pt. 11, Pennsylvania, at 100
(1780 law); id. pt. 13, South Carolina, at 30 (1721 law). Similar laws persisted into
the 19th century, see, e.g., James Dunlop, The General Laws of Pennsylvania 405-06
(2d ed. 1849) (1822 law)—by which time at least three states outright excluded
“common drunkards” from the militia, see 1844 R.I. Pub. Laws 503; 1837 Me. Laws
424; 1837 Mass. Acts 273.
Despite the pervasiveness of alcohol at the founding, early laws
understandably focused on the militia because social norms “had an important
restraining effect on intemperance” and there thus was “little public outcry against
alcoholism.” Mark Edward Lender & James Kirby Martin, Drinking in America: A
History 14-16 (1987). Community mores “held drinking excesses largely in bounds.”
Id. at 15. And the cumbersome nature of 18th-century firearms also mitigated the
general risk created by intoxicated individuals. See Randolph Roth, “Why Guns Are
and Are Not the Problem,” in Jennifer Tucker, et al., A Right to Bear Arms?: The
Contested Role of History in Contemporary Debates on the Second Amendment 116-17
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(2019). As those circumstances changed during the 19th century, see, e.g., Lender,
supra, at 45-46, however, states and territories began imposing criminal penalties on
intoxicated members of the public who carried, used, or received firearms or pistols.
See 1867 Kan. Sess. Laws 25 (prohibiting those “under the influence of intoxicating
drink” from carrying a pistol or other deadly weapon); 1878 Miss. Laws 175-76
(prohibiting selling weapons to a “person intoxicated”); Mo. Rev. Stat. § 1274 (1879)
(prohibiting carrying “any kind of firearms” “when intoxicated or under the influence
of intoxicating drinks”); 1883 Wis. Sess. Laws 290 (prohibiting person in “state of
intoxication” from going “armed with any pistol or revolver”); 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”). Such statutes were
considered “in perfect harmony with the constitution” and “a reasonable regulation
of the use of such arms” even where state constitutions were understood to secure an
individual’s right to bear arms. State v. Shelby, 2 S.W. 468, 469 (Mo. 1886).
Despite the M&R questioning the value of Reconstruction-era laws, this 19th-
century evidence remains instructive. As Bruen reiterated, evidence of the Second
Amendment’s interpretation “‘through the end of the 19th century’ represent[s] a
‘critical tool of constitutional interpretation.’” 142 S. Ct. at 2136 (quoting Heller, 554
U.S. at 605). And such evidence is particularly helpful where, as here, it supplies
“‘confirmation of’” earlier history. Id. at 2137. Laws regulating the general public’s
firearm possession while intoxicated largely arose later, but they were consistent
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with earlier laws regulating individuals’ ability to possess guns while drunk (or at
events where drinking would occur) and militia-specific laws. The M&R identifies
nothing in pre-19th-century practice demonstrating that legislatures were considered
to lack authority to preclude the intoxicated public from using firearms. Cf. id. at
2133 (noting lack of “disputes regarding the lawfulness of [sensitive-place]
prohibitions”). Concluding otherwise would unjustifiably deem legislatures’ earlier
silence as reflecting a constitutional limit, on the unfounded assumption that
founding-era legislatures invariably regulated to the outer limit of their authority
irrespective of popular demand or perceived need for particular laws.
The Court need also examine the how and why questions to determine whether
Section 922(g)(3) is “comparably justified” to founding-era and nineteenth century
intoxication statutes. Bruen, 142 S. Ct. at 2133. In terms of why Section 922(g)(3)
restricts the Second Amendment right, the provision, like intoxication statutes, limits
firearm possession or use at times an individual is deemed unlikely to use them
responsibly. Intoxication-related statutes were enacted to prevent the “mischief”
threatened by intoxicated persons “going abroad with firearms,” Shelby, 2 S.W. at
469, and Congress likewise enacted Section 922(g)(3) to “keep firearms away from the
persons [it] classified as potentially irresponsible and dangerous,” Barrett v. United
States, 423 U.S. 212, 218 (1976). For confirmation, this Court need only consider the
parity with which legislatures treated alcohol and drugs once illegal drugs
proliferated in the 20th century. At least one jurisdiction, Michigan, simply extended
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its by-then common restriction on carrying firearms while intoxicated to cover those
under the influence of “any exhilarating or stupefying drug.” 1929 Mich. Pub. Acts
55. Other jurisdictions elected to regulate more indirectly by prohibiting the delivery
or sale of firearms to certain persons, but extended such laws to drug addicts and
habitual drunkards alike. See 1927 N.J. Laws 745; 1931 Pa. Laws 499; 1935 Ind. Acts
161; 1935 S.D. Sess. Laws 356; 1935 Wash. Sess. Laws 601; 1936 Ala. Acts 52; 47
Stat. 650, 652 (1932).
In terms of how Section 922(g)(3) burdens the right to self-defense, the M&R
describes Section 922(g)(3)’s prohibition as much broader than colonial and
nineteenth century laws. M&R at 30. But the statute—like historical intoxication
laws—is a temporary restriction on possession that lasts only during the period an
individual is deemed unlikely to use firearms responsibly. If a person ceases
unlawfully using controlled substances, he may again possess firearms. See Yancey,
621 F.3d at 687. The M&R notes that Section 922(g)(3) prohibits possession of
firearms, while alcohol statutes historically were limited to prohibiting carrying or
use. That difference, however, is readily explained by the fact that illegal drugs,
unlike alcohol, are unlawful in all circumstances. An individual who regularly obtains
and uses those substances likely will have connection with criminality for which gun
possession presents public safety risks. Indeed, as early as 1931, California
prohibited outright firearm possession by drug addicts, not just use during periods of
intoxication. 1931 Cal. Stat. 2316-17. Other states later followed suit, see, e.g., 1951
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Ala. Acts 1379; 1955 Kan. Sess. Laws 400. Because alcohol, by contrast, has generally
been lawful, laws understandably allowed alcohol drinkers to possess firearms,
limiting their use only during periods of intoxication. Given this clear distinction
between unlawful drugs and alcohol, to demand a more exact “dead ringer” for Section
922(g)(3) would be inconsistent with Bruen’s assurances that the Second Amendment
is not “a regulatory straightjacket” for modern legislatures. Bruen, 142 S. Ct. at 2133.
Once more, an early legislature’s choice to prohibit use rather than simple possession
does not itself indicate legislators believed it lacked constitutional power to regulate
simple possession if they chose.
Finally, as in part II(B) of this filing, supra, the government objects to the
magistrate judge’s focus on the comparative penalties for violation of historical laws
relating to firearm possession while intoxicated and those applicable to Section
922(g)(3). See M&R at 28. The question before this Court is whether the government
can place a restriction on the gun rights of habitual illegal drug users. The Court
needs to determine whether this restriction on gun rights is consistent with the
nation’s history and tradition of gun regulation, not whether the punishment
prescribed for such a violation mirrors historical punishments for related statutes.
D. Section 922(g)(3) is analogous to historical statutes disarming
those considered dangerous.
The government objects to the magistrate judge’s finding (at Section II(D)(2)(c),
pp. 34-40 of the M&R) that historical regulations disarming individuals considered
dangerous are not sufficiently analogous Section 922(g)(3). Congress’s decision to
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disarm those engaging in regular, long-term illegal drug abuse follows a tradition of
disarmament of individuals and groups which legislature found to be dangerous. As
a result, the statute is “comparably justified.” Bruen, 142 S. Ct. at 2133.
English common law established the government’s authority to disarm
individuals posing a threat to the safety of others. Common law prohibited
individuals from “go[ing] armed to terrify the King’s subjects.” Sir John Knight’s
Case, 3 Mod. 117, 87 Eng. Rep. 75, 76 (K.B. 1686); Statute of Northampton, 2 Edw.
3, c.3 (1328). The Militia Act of 1662 later authorized crown officers to seize the arms
of those “judge[d] dangerous to the Peace of the Kingdom.’” 13 & 14 Car. 2, c.3, § 13
(1662). The 1689 English Bill of Rights declared subjects’ right to possess arms, but
limited the right to Protestant subjects, 1 W. & M. c.2, § 6, and did not purport to
repeal the Militia Act, which was employed into the 18th century, see, e.g., Calendar
of State Papers, Domestic: William III, 1700-1702, at 233-34 (Edward Bateson ed.,
1937). Before, contemporaneous with, and after the Bill of Rights’ enactment,
Parliament also enacted statutes disarming Catholics in England and Ireland. 3 Jac.
I, c.5, §§ 16-18 (1605-06); 1 W. & M. c.15, §§ 3-4 (1688); 7 Will. III, c.5 (1695) (Ireland).
And in the first half of the 18th century, statutes disarmed Scottish persons believed
to be loyal to James II. See, e.g., 1 George I, c.54 (1715); 11 George I, c.26 (1724); 19
George II, c.39 (1746).
The tradition continued in early American legislatures. Some laws disarmed
those who carried arms in a manner that spread fear or terror. See 1692-1694 Mass.
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Acts 11-12; 1696-1701 N.H. Laws 15. Others disarmed entire groups deemed
dangerous or untrustworthy, including those who refused to swear allegiance to the
colony 3 or the Revolution’s cause; 4 enslaved persons; 5 and Native Americans. 6
These laws would be unconstitutional today under the Thirteenth or Fourteenth
Amendments. But for Second Amendment purposes, they remain instructive. As
repugnant as these laws are, they demonstrate that the Amendment was not
historically understood to pose an obstacle to disarming, as a class, certain persons.
See, e.g., United States v. Jackson, 69 F.4th 495, 503 (8th Cir. 2023).
Second Amendment precursors proposed in state ratifying conventions
likewise confirmed that legislatures may disarm certain categories of individuals,
including for “crimes committed, or real danger of public injury.” 2 Bernard Schwartz,
The Bill of Rights: A Documentary History 665 (1971) (discussing Pennsylvania
proposal). Accordingly, as one early scholar wrote, the government may restrict a
person’s right to carry firearms when there is “just reason to fear that he purposes to
make an unlawful use of them.” William Rawle, A View of the Constitution of the
United States of America 126 (2d ed. 1829). And that understanding persisted after
3
1 Records of Governor & Company of the Massachusetts Bay in New England 211-12 (Nathaniel B. Shurtleff ed.,
1853) (1637 order disarming Anne Hutchinson’s followers).
4
See, e.g., 4 Journals of the Continental Congress 201-06 (1906) (1776 resolution); 1775-1776 Mass. Acts 479; 1777
Pa. Laws 63; 1777 N.C. Sess. Laws 231; 1776-1777 N.J. Laws 90; 9 William Waller Hening, Statutes at Large; Being
a Collection of All the Laws of Virginia 281-83 (1821) (1777 law); 15 The Public Records of the Colony of Connecticut
from May, 1775, to June, 1776, Inclusive 193 (Charles J. Hoadly ed., 1890) (1775 law).
5
See, e.g., 1700-1797 Del. Laws 104; 1692-1720 Md. Laws 117-18; 1715-1760 N.Y. Laws 162; 1715-1755 N.C.
Sess. Laws 64; 1731-1743 S.C. Acts 168.
6
See, e.g., 1723-1730 Conn. Acts. 292; Charter & General Laws of Massachusetts Bay 133 (1814) (1633 law); 6
Statutes at Large of Pennsylvania from 1682 to 1801 319-20 (WM Stanley Ray ed., 1898) (1763 law); 1 Hening,
supra, at 219 (1633 Virginia law).
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the Civil War. In 1866, for example, a federal Reconstruction order applicable to
South Carolina provided that, although the “rights of all loyal and well-disposed
inhabitants to bear arms will not be infringed,” “no disorderly person, vagrant, or
disturber of the peace, shall be allowed to bear arms.” Cong. Globe, 39th Cong., 1st
Sess. 908-09 (1866).
While at least some of the founding-era and nineteenth century laws disarming
the dangerous did so in part because of the concern that certain groups would pose a
threat to state security (see M&R at 35, 39), feared violence against the state
undoubtedly meant violence against loyal soldiers or innocent civilians. The armed
rebellions that the founders sought to prevent could only be effective in challenging
state security if they involved violence or the threat of violence against American
citizens, which means that the danger that legislators sought to prevent was not only
to American sovereignty but also to its people. In passing Section 922(g)(3), Congress
similarly recognized a need to protect innocent American citizens from improper gun
use.
This history at a minimum “support[s] the proposition that the state can take
the right to bear arms away from a category of people that it deems dangerous,”
Kanter, 919 F.3d at 464 (Barrett, J., dissenting)–although the government’s authority
to disarm certain groups is not limited to such persons. See, e.g., Range v. Att’y Gen.,
United States of Am., 69 F.4th 96, 105 (3d Cir. 2023) (describing disarming
“distrusted” groups); id. at 110 (Ambro, J., concurring) (describing disarming those
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who “pose a threat to the orderly functioning of society”). And Congress had ample
reason to conclude that gun possession by unlawful drug users, as a class, poses a
serious risk of danger to others.
Because of the unlawful nature of their activities, drug users are more likely
than law-abiding citizens to have dangerous confrontations (particularly if guns are
involved) with drug dealers, law enforcement officers (as occurred in Alston’s case),
and others—raising a concern of danger even beyond periods of actual intoxication.
It thus is no surprise that individual judges have suggested “drug dealing” is
“dangerous because [it] often lead[s] to violence,” Folajtar v. Attorney General, 980
F.3d 897, 922 (3d Cir. 2020) (Bibas, J., dissenting), and that Section 922(g)(3) aligns
with a historically justified interest in “keeping guns out of the hands of those who
are likely to misuse them,” Kanter, 919 F.3d at 465-66 (Barrett, J., dissenting). The
government does not refer to the dangerousness of illegal drug users to invite this
Court to engage in the interest balancing Bruen rejected. Instead, as Bruen itself
explained, the Second Amendment inquiry requires reasoning by analogy. 142 S. Ct.
at 2132. And that “commonplace task for any lawyer or judge,” id., necessarily
requires evaluating the similarity between the historical justification for disarming
certain persons with the present-day dangers the legislature reasonably could find
that a group, like unlawful drug users, poses.
Finally, in terms of how Section 922(g)(3) restricts the right, the statute is no
more restrictive than historical laws disarming certain groups. As a temporary
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prohibition, Section 922(g)(3) prohibits firearm possession only during the period
users of unlawful controlled substances are considered to present a risk of
dangerousness. See Yancey, 621 F.3d at 687. This is analogous to the historical
limitations on the dangerously disloyal, which only lasted until such persons could
show their loyalty to the nation. M&R at 36 (quoting Joseph G.S. Greenlee, The
Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20
Wyo. L. Rev. 249, 265 (2020).
CONCLUSION
Heller and Bruen are clear that the Second Amendment protects possession
and use of firearms and ammunition for lawful purposes by law-abiding, responsible
citizens. The Constitution does not protect the conduct prohibited by 18 U.S.C. §
922(g)(3). Moreover, even if such conduct were covered, the statutes are consistent
with the nation’s historical tradition of firearm regulation. Section 922(g)(3) is thus
facially constitutional, and this Court should so find.
Respectfully submitted this 15th day of August, 2023.
MICHAEL F. EASLEY, JR.
United States Attorney
BY: /s/ Sarah E. Nokes
SARAH E. NOKES
Assistant United States Attorney
Criminal Division
150 Fayetteville Street, Suite 2100
Raleigh, North Carolina 27601
Telephone: (919) 856-4054
Facsimile: (919) 856-4487
E-mail: sarah.nokes@usdoj.gov
VA Bar No. 82472
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CERTIFICATE OF SERVICE
This is to certify that I have this 15th day of August, 2023, served a copy of the
foregoing response upon the defendant in this action by CM/ECF to:
Edward D. Gray
Attorney for Defendant
/s/ Sarah E. Nokes
Sarah E. Nokes
Assistant United States Attorney
Criminal Division
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