Legal Commentary

District Court Upholds Ban on Possessing Guns While an Illegal User of a Controlled Substance

By Eugene Volokh

From United States v. Hendrix (W.D. Wis. Apr. 6):

After a confidential informant bought 1.9 grams of crack cocaine from defendant Brandon Hendrix on April 21, 2009, law enforcement officers obtained a warrant to search his residence. When they arrived, they found defendant present and under the influence of marijuana, crack cocaine and alcohol. Their search uncovered a loaded SKS rifle, a .45 caliber Ruger pistol, a Winchester shotgun, ammunition, knives and drug paraphernalia. Defendant was arrested the next day and charged in federal court with knowing and unlawful possession of firearms while being an unlawful user of marijuana and crack cocaine, in violation of 18 U.S.C. § 922(g)(3)....

[D]efendant?s argument fails because he has not shown that he is subject to any real burden. If he does not use controlled substances, then § 922(g)(3) imposes no restriction on his possession of guns. If he chooses to use them, then he cannot legally possess a gun. The choice is his, not the government?s....

[I]t is not necessary to consider ... whether a person prosecuted under § 922(g)(3) should be subject to a lifetime ban on gun possession, the natural consequence of a felony conviction for violation of this statute. One could argue that the prohibition should not last any longer than the person?s use of controlled substances, but defendant has neither made this argument nor suggested that he would qualify for relief if it were adopted, so I will not address it.