From U.S. v. Cooper, decided today by Eighth Circuit Judge David Stras, joined by Judges Steven Grasz and Jonathan Kobes:
In United States v. Veasley (8th Cir. 2024), we concluded that keeping firearms out of the hands of drug users does not "always violate[] the Second Amendment." Now the question is whether it sometimes can. The answer is yes, so we remand for the district court to determine whether it does for LaVance Cooper….
Cooper consented to a bench trial on stipulated facts. One was that he smoked marijuana three to four times a week. Another was that he had done it two days before officers found a Glock 20 pistol in his car during a traffic stop. Based on those facts and a few others, the district court found Cooper guilty of being a drug user in possession of a firearm, see 18 U.S.C. § 922(g)(3), and sentenced him to 37 months in prison….
In every Second Amendment case, the overarching question is whether a limitation on the right to keep and bear arms is "consistent with this Nation's historical tradition of firearm regulation." N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022). Key to answering that question is identifying "analogue[s]": Founding-era regulations that "impose[d] a comparable burden on the right of armed self-defense" with a "comparabl[e] justifi[cation]." See also United States v. Rahimi (2024) (explaining that the modern regulation "need not be a 'dead ringer' or a 'historical twin'"). If no comparable analogues exist because "disarmament is a [purely] modern solution to a centuries-old problem," or strays too far from the "how and why" of "historical regulations," then the Second Amendment kicks in….
In Veasley, we identified two Founding-era analogues that "make [the drug-user-in-possession statute] constitutional in [certain] applications": "confinement of the mentally ill" and the "criminal prohibition on taking up arms to terrify the people."
