United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION
T. Maughmer United States Magistrate Judge
Matthew Nolan (“Nolan”) on November 17, 2015, was
charged in a single count indictment for violating 18 U.S.C.
§ 922(g)(3). That criminal statute provides:
It shall be unlawful for any person . . . who is an unlawful
user of or addicted to any controlled substance . . . to ship
or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
18 U.S.C.A. § 922(g)(3). Nolan now has pending before
the Court a motion to dismiss the indictment [Doc. 26]. Nolan
asserts that Section 922(g)(3) is unconstitutionally vague
and violates the Second Amendment, due process, and equal
protection. Having reviewed and considered the parties'
arguments, the undersigned recommends that the Court deny the
motion to dismiss.
regard to vagueness, it must be initially noted that Section
922(g)(3) has survived prior scrutiny by courts considering
such a claim. See, e.g., United States v.
Edwards, 540 F.3d 1156, 1162 (10th Cir.
2008); United States v. Edwards, 182 F.3d 333,
335-36 (5th Cir. 1999); United States v. Purdy, 264
F.3d 809, 812 (9th Cir. 2001). In any event, since Nolan does
not assert any First Amendment issue, his challenge must be
pursued as an “as applied” constitutional
challenge. United States v. Powell, 423 U.S. 87, 92,
96 S.Ct. 316, 319-20 (1975). Consequently, any vagueness
challenge is not ripe and will need to await trial where the
actual evidence can be examined. See, e.g.,
United States v. Matthews, No. 14-CR-00060-W-DW,
2015 WL 2170380, at *2 (W.D. Mo. May 8, 2015).
regard to Nolan's Second Amendment claim that Section
922(g)(3) is unconstitutional in light of the Supreme
Court's decision in District of Columbia v.
Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008), the issue
has previously been decided by the Eighth Circuit in
United States v. Seay, 620 F.3d 919, 925 (8th Cir.
2010), which found:
Nothing in [the defendant's] argument convinces us that
we should depart company from every other court to
examine § 922(g)(3) following Heller. Further,
§ 922(g)(3) has the same historical pedigree as other
portions of § 922(g) which are repeatedly upheld by
numerous courts since Heller. Moreover, in passing
§ 922(g)(3), Congress expressed its intention to
“keep firearms out of the possession of drug abusers, a
dangerous class of individuals.” United States v.
Cheeseman, 600 F.3d 270, 280 (3d Cir.2010). As such, we
find that § 922(g)(3) is the type of “longstanding
prohibition[ ] on the possession of firearms” that
Heller declared presumptively lawful.
Seay, 620 F.3d at 925.
regard to equal protection (and due process), Nolan argues
that Section 922(g)(3) is unconstitutional because it draws
an impermissible distinction based on a classification. The
initial step in equal protection analysis is to identify the
government's classification of groups and the next step
is to determine the level of scrutiny. Nolan argues that
Section 922(g)(3) must be analyzed using strict scrutiny.
However, the Supreme Court has cautioned:
[E]qual protection analysis requires strict scrutiny of a
legislative classification only when the classification
impermissibly interferes with the exercise of a fundamental
right or operates to the peculiar disadvantage of a suspect
Massachusetts Bd. of Retirement v. Murgia, 427 U.S.
307, 312, 96 S.Ct. 2562, 2566 (1976) (per
922(g)(3), by its terms, arguably classifies individuals
seeking to possess firearms into two groups: those who are
unlawful users of or addicted to any controlled substance and
those who are not. The former group is restricted from
possessing firearms. Nonetheless, the classification does not
impede any Second Amendment rights. As the Court made clear
in Heller, the “core” (or fundamental)
right enshrined in the Second Amendment is “the right
of law-abiding, responsible citizens to use arms in defense
of hearth and home.” Heller, 554 U.S. at 635,
128 S.Ct. at 2821. The classification drawn in Section
922(g)(3) does not impede this core right since - by
definition - it applies only to citizens who are not
law-abiding. Strict scrutiny is not appropriate.
protection claims not involving fundamental rights are
analyzed under either intermediate scrutiny or a rational
basis test. The Court need not decide which test is
appropriate in this case since Section 922(g)(3) survives
under both. Under intermediate scrutiny, the question is
whether there is a ‘reasonable fit' between the
challenged regulation and a ‘substantial'
government objective. The Court finds the analysis in
United States v. Carter, 669 F.3d 411, 417 (4th Cir.
2012) persuasive in finding that Section 922(g)(3) meets this