In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1138
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ATTHEW Y ANCEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-cr-00103—Barbara B. Crabb, Judge.
A RGUED A UGUST 4, 2009—D ECIDED S EPTEMBER 3, 2010
Before F LAUM, K ANNE, and W OOD , Circuit Judges.
P ER C URIAM. Matthew Yancey pleaded guilty to pos-
sessing a firearm as an unlawful user of marijuana
but reserved the right to argue on appeal that the offense
of conviction, 18 U.S.C. § 922(g)(3), violates the Second
Amendment as interpreted in District of Columbia v.
Heller, 128 S. Ct. 2783 (2008). We conclude that the
statute is constitutional and affirm Yancey’s conviction.
Police officers executed an arrest warrant for Yancey
in June 2008. Yancey, who was 18 at the time, was
2 No. 09-1138
carrying a loaded pistol and 0.7 grams of marijuana. He
confessed that he had been smoking marijuana daily
since age 16. Arrests for possession of marijuana in
2006 and again in 2008 corroborate this admission.
A grand jury charged Yancey with violating 18 U.S.C.
§ 922(g)(3), which makes it a felony for a person “who is
an unlawful user of or addicted to any controlled sub-
stance” to possess a gun. An “unlawful user” is some-
one, like Yancey, who regularly ingests controlled sub-
stances in a manner except as prescribed by a physician.
See 27 C.F.R. § 478.11; United States v. Burchard, 580
F.3d 341, 352 (6th Cir. 2009); United States v. Patterson, 431
F.3d 832, 839 (5th Cir. 2005). Yancey conceded the viola-
tion but moved to dismiss the indictment on the ground
that the statute violates the Second Amendment. Yancey
cited Heller, which holds that the Second Amendment
preserves an individual’s right to keep handguns for self-
defense. 128 S. Ct. at 2821-22; United States v. Jackson,
555 F.3d 635, 636 (7th Cir.), cert. denied, 130 S. Ct. 147 (2009).
Although Yancey was carrying his gun outside his
home, he argued that Heller shields him from prosecu-
tion because he is not a felon and the weapon is com-
monplace. And, Yancey continued, the government
would need, but could not articulate, a compelling inter-
est to justify dispossessing habitual drug users of their
guns. The district court denied the motion, concluding
that nothing in Heller prevents the government from
criminalizing firearm possession by someone who habit-
ually uses drugs illegally. Yancey then entered a condi-
tional guilty plea and was sentenced to 21 months’ impris-
onment and 3 years’ supervised release.
No. 09-1138 3
Yancey’s sole argument on appeal is that the district
court should have dismissed the indictment on the
ground that § 922(g)(3) violates the Second Amendment.
We review the district court’s legal conclusion de novo.
See United States v. Greve, 490 F.3d 566, 570 (7th Cir. 2007).
This court has not yet analyzed § 922(g)(3) after Heller, and
no other circuit has published an opinion deciding its
constitutionality. Our full court, however, did recently
evaluate whether the Constitution permits Congress to
bar those convicted of domestic violence crimes from
possessing firearms, see 18 U.S.C. § 922(g)(9), and we
concluded that it does. See United States v. Skoien, No. 08-
3770, 2010 WL 2735747, at *3 (7th Cir. July 13, 2010)
(en banc).
In considering the constitutionality of § 922(g)(3), we
begin with the Supreme Court’s recent decisions in
Heller and McDonald v. City of Chicago, 130 S. Ct 3020
(2010). Although the Court concluded that the Second
Amendment preserves “the individual right to possess
and carry weapons in case of confrontation,” Heller, 128
S. Ct. at 2797, that right is not unlimited. The Court has
since admonished that Heller “did not cast doubt on
such longstanding regulatory measures as ‘prohibitions
on the possession of firearms by felons and the mentally
ill.’ ” McDonald, 130 S. Ct. at 3047 (quoting Heller, 128 S. Ct.
at 2816-17). Heller’s footnote 26 underscores that at least
these two categorical bans are “presumptively lawful.”
Heller, 128 S. Ct. at 2817 n.26. The Court declined to
further elaborate on the full extent of the Second Amend-
ment’s reach, noting that “there will be time enough to
expound upon the historical justifications for the excep-
4 No. 09-1138
tions we have mentioned if and when those excep-
tions come before us.” Id. at 2821. With this case, we
move beyond those exceptions to a different, but equally
defensible, categorical ban.
We have already concluded, based on our under-
standing of Heller and McDonald, that some categorical
firearms bans are permissible; Congress is not limited
to case-by-case exclusions. Skoien, 2010 WL 2735747, at *3.
And we have already considered and rejected the
notion that only exclusions in existence at the time of
the Second Amendment’s ratification are permitted. Id.
It was not until 1968 that Congress barred the mentally
ill from possessing guns, and it was in that same legisla-
tion that habitual drug abusers were prohibited from
having guns. See Gun Control Act of 1968, Pub. L. 90-618,
§ 102, 82 Stat. 1213, 1220.
But though Congress may exclude certain categories
of persons from firearm possession, the exclusion must
be more than merely “rational,” Heller, 128 S. Ct. at 2817
n.27, and must withstand “some form of strong show-
ing,” Skoien, 2010 WL 2735747, at *3. (We have thus far,
like the Supreme Court, declined to wade into the “ ‘levels
of scrutiny’ quagmire,” id.; see also Heller, 128 S. Ct. at
2817 (striking down D.C.’s law “[u]nder any level of
scrutiny”)). In both Skoien and United States v. Williams,
we evaluated whether the government had made a
strong showing that the challenged subsection of § 922(g)
was substantially related to an important governmental
objective. See United States v. Williams, No. 09-3174, 2010
WL 3035483, at *6 (7th Cir. Aug. 5, 2010); Skoien, 2010
No. 09-1138 5
WL 2735747, at *3. We apply that same analytical frame-
work here, and again reserve the question whether a
different kind of firearm regulation might require a
different approach. See Williams, 2010 WL 3035483, at *6.
Congress enacted the exclusions in § 922(g) to keep
guns out of the hands of presumptively risky people. See
Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n.6
(1983); see also S. R EP. N O . 90-1501, at 22 (1968) (“The
ready availability, that is, the ease with which any
person can anonymously acquire firearms (including
criminals, juveniles without the consent of their parents
or guardians, narcotic addicts, mental defectives, armed
groups who would supplant duly constituted public
authorities, and others whose possession of firearms is
similarly contrary to the public interest) is a matter of
serious national concern.”). The broad objective of
§ 922(g)—suppressing armed violence—is without doubt
an important one, see Williams, 2010 WL 3035483, at *6,
Skoien, 2010 WL 2735747, at *3, and the government
contends that keeping guns away from habitual drug
abusers is substantially related to that goal. As the gov-
ernment notes, many states have restricted the right of
habitual drug abusers or alcoholics to possess or carry
firearms. See A LA. C ODE § 13A-11-72(b); A RK. C ODE A NN.
§ 5-73-309(7), (8); C AL. P ENAL C ODE § 12021(a)(1); C OLO .
R EV. S TAT. § 18-12-203(e), (f); D EL. C ODE A NN. tit. 11,
§ 1448(a)(3); D.C. C ODE § 22-4503(a)(4); F LA. S TAT.
§ 790.25(2)(b)(1); G A. C ODE A NN. § 16-11-129(2)(f), (i), (j);
H AW. R EV. S TAT. § 134-7(c)(1); IDAHO C ODE A NN. § 18-
3302(1)(e); 720 ILCS 5/24-3.1(a)(3); IND. C ODE § 35-47-1-7(5);
K AN. S TAT. A NN. § 21-4204(a)(1); K Y. R EV. S TAT. A NN.
6 No. 09-1138
§ 237.110(4)(d), (e); M D . C ODE A NN., Public Safety, 5-
133(b)(4), (5); M ASS. G EN. L AWS ch. 140, § 129B(1)(iv);
M IN N . S TA T . § 624.713(10)(iii); M O . R EV . S TAT .
§ 571.070(1)(1); N EV. R EV. S TAT. § 202.360(1)(c); N.H. R EV.
S TAT. A NN. § 159:3(b)(3); N.J. S TAT. A NN. § 2C:58-3(c)(2);
N.C. G EN . S TAT. § 14-404(c)(3); O HIO R EV. C ODE A NN.
§ 2923.13(A)(4); R.I. G EN. L AWS § 11-47-6; S.C. C ODE A NN.
§ 16-23-30(A)(1); S.D. C ODIFIED L AWS § 23-7-7.1(3); W. V A.
C ODE § 61-7-7(2), (3). These statutes demonstrate that
Congress was not alone in concluding that habitual drug
abusers are unfit to possess firearms. The state prohibi-
tions, moreover, are merely the latest incarnation of the
states’ unbroken history of regulating the possession and
use of firearms dating back to the time of the amend-
ment’s ratification. See generally Saul Cornell & Nathan
DeDino, A Well-Regulated Right: The Early American Origins
of Gun Control, 73 F ORDHAM L. R EV . 487, 502 (2004). That
some of these restrictions are entrenched supports their
constitutionality: “This court has repeatedly laid down
the principle that a contemporaneous legislative exposi-
tion of the Constitution, when the founders of our gov-
ernment and framers of our Constitution were actively
participating in public affairs, acquiesced in for a long
term of years, fixes the construction to be given its provi-
sions.” Myers v. United States, 272 U.S. 52, 175 (1926).
Keeping guns away from habitual drug abusers is
analogous to disarming felons. We have already con-
cluded that barring felons from firearm possession is
constitutional. See Williams, 2010 WL 3035483, at *7.
Though scholars continue to debate the evidence of
historical precedent for prohibiting criminals from
No. 09-1138 7
carrying arms, compare Skoien, 2010 WL 2735747, at *2; Don
B. Kates, Jr., Handgun Prohibition and the Original Meaning
of the Second Amendment, 82 M ICH. L. R EV. 204, 266 (1983)
(“Felons simply did not fall within the benefits of the
common law right to possess arms.”), with Skoien, 2010
WL 2735747, at *11 (Sykes, J., dissenting); C. Kevin Mar-
shall, Why Can’t Martha Stewart Have a Gun?, 32 H ARV .
J.L. & P UB. P OL’Y 695, 728-35 (2009), it cannot be disputed
that states were regulating firearms as early as the nine-
teenth century. See State v. Hogan, 58 N.E. 572, 218-19
(Ohio 1900) (opining that prohibition on tramps bearing
arms was constitutional); State v. Shelby, 2 S.W. 468, 469
(Mo. 1886) (upholding law prohibiting intoxicated
persons from carrying firearms); see also Robertson v.
Baldwin, 165 U.S. 275, 281-82 (1897) (noting that Bill of
Rights codified liberties inherited from “our English
ancestors” with well-recognized exceptions). Whatever
the pedigree of the rule against even nonviolent felons
possessing weapons (which was codified in federal law
in 1938), most scholars of the Second Amendment agree
that the right to bear arms was tied to the concept of
a virtuous citizenry and that, accordingly, the govern-
ment could disarm “unvirtuous citizens.” United States
v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (citing
Glenn Harlan Reynolds, A Critical Guide to the Second
Amendment, 62 T ENN. L. R EV. 461, 480 (1995), and Don B.
Kates, Jr., The Second Amendment: A Dialogue, L AW &
C ONTEMP. P ROBS., Winter 1986, at 143, 146 (1986)), petition
for cert. filed (July 13, 2010) (No. 10-5423); T HOMAS M.
C OOLEY, A T REATISE ON C ONSTITUTIONAL L IMITATIONS 29
(Boston, Little Brown & Co. 1868) (explaining that con-
8 No. 09-1138
stitutions protect rights for “the People” excluding, among
others, “the idiot, the lunatic, and the felon”); see also
Skoien, 2010 WL 2735747, at *2. As we’ve explained in
a different context, most felons are nonviolent, but some-
one with a felony conviction on his record is more likely
than a nonfelon to engage in illegal and violent gun use.
United States v. Lane, 252 F.3d 905, 906 (7th Cir. 2001).
Thus, while felon-in-possession laws could be criticized
as “wildly overinclusive” for encompassing nonviolent
offenders, every state court in the modern era to
consider the propriety of disarming felons under analo-
gous state constitutional provisions has concluded that
step to be permissible. Adam Winkler, Scrutinizing the
Second Amendment, 105 M ICH. L. R EV. 683, 721 (2007). And
that reasoning applies with equal force to Congress’s
extension of the firearms ban to another category of
habitual criminals with § 922(g)(3).
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 fire-
arms. In Heller and McDonald, the Court endorsed the
exclusion of the mentally ill from firearm posses-
sion as presumptively valid. McDonald, 130 S. Ct. at 3049;
Heller, 128 S. Ct. at 2816-17. Federal law did not prohibit
firearm possession by those adjudicated mentally ill or
committed to a mental institution until 1968, see Skoien,
2010 WL 2735747, at *2 (citing Pub. L. 90-618, 82 Stat.
1213, 1220). But the absence of historical statutory pro-
hibitions on firearm possession may have been the conse-
quence of the fact that “in eighteenth-century America,
justices of the peace were authorized to ‘lock up’ ‘lunatics’
No. 09-1138 9
who were ‘dangerous to be permitted to go abroad.’ ”
Carlton F.W. Larson, Four Exceptions in Search of a Theory:
District of Columbia v. Heller and Judicial Ipse Dixit, 60
H ASTINGS L.J. 1371, 1377 (2009) (citing H ENRY C ARE,
E NGLISH L IBERTIES, OR THE F REE-BORN S UBJECT’S INHERI-
TANCE 329 (6th ed. 1774)); accord Don B. Kates & Clayton E.
Cramer, Second Amendment Limitations and Criminological
Considerations, 60 H ASTINGS L.J. 1339, 1361 n.136; see also
United States v. Emerson, 270 F.3d 203, 226 n.21 (5th
Cir. 2001) (noting that “lunatics” and “those of unsound
mind” were historically prohibited from firearm posses-
sion). Extending the ban to those who regularly abuse
drugs makes particular sense because the Court has
noted the similarity between the two groups. A few
years before Congress barred the mentally ill and
habitual drug abusers from possessing guns, the Court
noted that drug addiction is an illness not unlike
other mental illnesses, and that it could in some cases
be contracted innocently or inadvertently. See Robinson v.
California, 370 U.S. 660, 667 (1962); see also Linder v.
United States, 268 U.S. 5, 18 (1925). In Robinson, the
Court struck down a law criminalizing drug addic-
tion, which the Court reasoned was analogous to impris-
oning someone for having a common cold. 370 U.S. at
667. But even while recognizing that addiction is an
illness, the Court nevertheless recognized that an addict’s
behavior can be regulated. Just a few months before Con-
gress excluded both the mentally ill and drug users
from firearm possession, the Court clarified that the
Constitution did not forbid criminalizing the public acts
of a habitual user. Rather than criminalizing status, the
Court said, the state “has imposed upon appellant a
10 No. 09-1138
criminal sanction for public behavior which may create
substantial health and safety hazards, both for ap-
pellant and for members of the general public.” Powell
v. Texas, 392 U.S. 514, 532 (1968); see also United States v.
Jester, 139 F.3d 1168, 1170 (7th Cir. 1998) (citing Powell
to support constitutionality of felon-in-possession laws).
So, too, with keeping firearms out of the hands of an
habitual drug abuser, who has “lost the power of
self-control with reference to the use of controlled sub-
stance,” 27 C.F.R. § 478.11, and whose possession of a
firearm likewise poses substantial health and safety
hazards. As the House manager stated during debate
on the legislation, “No one can dispute the need to
prevent drug addicts, mental incompetents, persons with
a history of mental disturbances, and persons convicted
of certain offenses, from buying, owning, or possessing
firearms.” 114 C ONG. R EC. 21784 (1968).
Ample academic research confirms the connection
between drug use and violent crime. For example, nearly
four times as many adults arrested for serious crimes
had used an illegal drug in the previous year than had not.
See O FFICE OF A PPLIED S TUDIES, S UBSTANCE A BUSE
AND M ENTAL H EALTH S ERVICES A DM INISTRATION ,
I LLICIT D RUG U SE A MONG P ERSONS A RRESTED FOR
S ERIOUS C RIMES, NSDUH R EPORT (2005), available at
http://www.oas.samhsa.gov/2k5/arrests/arrests.pdf. Other
academic research demonstrates a strong connection
between drug use and violence. See, e.g., Carrie B. Oser, et
al., The Drugs—Violence Nexus Among Rural Felony Probation-
ers, 24 J. INTERPERSONAL V IOLENCE 1285, 1298-99 (2009)
(noting connection between illegal stimulant use and
violence as well as economically motivated violence by
No. 09-1138 11
drug addicts); B UREAU OF JUSTICE S TATISTICS, U.S.
D EP’T OF JUSTICE, D RUG U SE AND D EPENDENCE, S TATE
AND F EDERAL P RISONERS, 2004, at 7 (2007), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/dudsfp04.pdf
(noting that nearly half of violent offenders in state
prisons were dependent on drugs); H. Virginia McCoy,
et al., Perpetrators, Victims, and Observers of Violence: Chronic
and Non-Chronic Drug Users, 16 J. INTERPERSONAL V IOLENCE
890, 906 (2001) (documenting notable connection be-
tween chronic drug abusers and violence); Roger H.
Peters, et al., Prevalence of DSM-IV Substance Abuse and
Dependence Disorders Among Prison Inmates, 24 A M . J. D RUG
A LCOHOL A BUSE 573, 583 (1998) (reporting that three-
quarters of state inmates have a history of substance
abuse); Lana Harrison & Joseph Gfroerer, The Intersection
of Drug Use and Criminal Behavior: Results from the
National Household Survey on Drug Abuse, 38 C RIME &
D ELINQUENCY 422, 438 (1992) (reporting that drug
abusers are more likely to engage in both property and
violent crimes). These studies amply demonstrate the
connection between chronic drug abuse and violent
crime, and illuminate the nexus between Congress’s
attempt to keep firearms away from habitual drug
abusers and its goal of reducing violent crime.
Finally, unlike those who have been convicted of a
felony or committed to a mental institution and so face
a lifetime ban, an unlawful drug user like Yancey 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. We have observed before that there is no
12 No. 09-1138
constitutional problem with separating guns and drugs.
See Jackson, 555 F.3d at 636. The prohibition in § 922(g)(3)
bars only those persons who are current drug users
from possessing a firearm, and “[i]t is obvious that
the tenses used throughout Title IV [including § 922(g)]
were chosen with care.” Scarborough v. United States, 431
U.S. 563, 570 (1977); see also United States v. Jackson, 480
F.3d 1014, 1021 (9th Cir. 2007). Every circuit to have
considered the question has demanded that the habitual
abuse be contemporaneous with the gun possession.
See Patterson, 431 F.3d at 839; United States v. Augustin,
376 F.3d 135, 139 (3d Cir. 2004); United States v. Turnbull,
349 F.3d 558, 561 (8th Cir. 2003), vacated on other grounds,
543 U.S. 1099 (2005) (finding Booker error), reinstated, 414
F.3d 942 (8th Cir. 2005); United States v. Jackson, 280
F.3d 403, 406 (4th Cir. 2002); United States v. Purdy, 264
F.3d 809, 812-13 (9th Cir. 2001). Thus the gun ban extends
only so long as Yancey abuses drugs. In that way, Yancey
himself controls his right to possess a gun; the Second
Amendment, however, does not require Congress to
allow him to simultaneously choose both gun posses-
sion and drug abuse.
In sum, we find that Congress acted within constitu-
tional bounds by prohibiting illegal drug users from
firearm possession because it is substantially related to
the important governmental interest in preventing
violent crime.
A FFIRMED.
9-3-10