Court Upholds Conviction for Possessing Gun as Unlawful Drug User (Who Is Presenting a Credible Threat to Safety)

U.S. v. Baxter, decided today by the Eighth Circuit, upheld a conviction for “possessing a firearm as an unlawful drug user in violation of 18 U.S.C. § 922(g)(3). The Supreme Court’s recent U.S. v. Hemani decision held that unlawful drug user (at least when the drug is marijuana) doesn’t inherently strip away the user’s Second Amendment rights, and thus concluded that some applications of § 922(g)(3) are unconstitutional. But it left open the question of what other applications might be constitutional:

We do not … address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.

Quoting that language, the Eighth Circuit concluded that Hemani didn’t dispose of the case. And it held that Baxter’s conviction was indeed consistent with Second Amendment. First, from the facts:

On May 21, 2023, gang members from two gangs—Strap and C-Block— began fighting in downtown Des Moines, Iowa. Baxter, a Strap gang member, was involved in this fight. When law enforcement attempted to break up the fight, the gang members ran in opposite directions, but resumed fighting 30 minutes later. The officers again approached, and Baxter and other Strap members chased the C-Block gang. As the officers were pursuing the chase, a bystander told them that Baxter had a gun.

The officers then confronted Baxter and asked what was in his pocket. Baxter responded, “nothing” and ran from the officers. He was apprehended shortly thereafter. The officers searched Baxter and found a loaded pistol and a baggie of marijuana on his person. The officers then obtained a search warrant to test Baxter’s urine for the presence of controlled substances; the test confirmed the presence of THC or marijuana metabolites….

And from the legal analysis, by Judge Bobby Shepherd, joined by Judges James Loken:

Baxter contends that the district court erred in denying his motion to dismiss because, as applied to him, 18 U.S.C. § 922(g)(3) violates his Second Amendment right to keep and bear arms…. “We have held that a defendant falls within the statute’s ambit if he ‘was actively engaged in the use of a controlled substance during the time he possessed firearms.'” Baxter does not contest that he was a marijuana user at the time that he possessed his Taurus 0.40 caliber pistol….

The Government has the burden of demonstrating that § 922(g)(3), as applied to Baxter, comports with this Nation’s historical tradition of firearm regulation…. Although we have not weighed in on this question before, we agree with the district court that a preponderance of the evidence standard is appropriate [as to this historical question]….

We have held that § 922(g)(3) is consistent with the Second Amendment when a drug user’s conduct is analogous to conduct falling within the “criminal prohibition on taking up arms to terrify the people.” We explained that Founding-era laws authorized imprisonment and forfeiture of arms when an individual offensively used a firearm to terrorize others….

To determine if Baxter’s conduct is relevantly similar to the conduct sanctioned by the Terror of the People laws, we ask if Baxter’s marijuana use “would or did make him ‘induce terror, or pose a credible threat to the physical safety of others with a firearm.'” U.S. v. Perez (8th Cir. 2025). The answer is undoubtedly yes. Baxter began using marijuana when he was 13 years old; he used marijuana on a regular basis; and a sample of his urine taken following his arrest tested positive for marijuana metabolites.

At the evidentiary hearing, Dr. Huestis [a toxicology expert] explained that there is a strong connection between chronic cannabis use and aggression and violence and that individuals can experience the cognitive effects of withdrawal—including irritability and aggressiveness—for several days after their last use. Baxter’s behavior on the night of his arrest mirrored Dr. Heustis’s findings: he acted aggressively and combatively in his interactions with law enforcement and civilians. Baxter—accompanied by fellow gang members—twice engaged in altercations with a rival gang while displaying or otherwise indicating his possession of a firearm. His behavior caused a bystander to report to law enforcement his suspicion that Baxter had a firearm, and Baxter ran from an officer when asked what was in his pocket.

Based on this conduct, the district court did not err in concluding by a preponderance of the evidence that Baxter’s conduct on the night of the arrest was sufficiently analogous to prohibited behavior under Founding-era going-armed laws. As the district court pointed out, even if Baxter did not openly brandish his firearm, Baxter’s possession of a firearm was obvious enough that an innocent bystander reported it to the police. And when officers attempted to talk to Baxter, he fled. As such, we agree with the district court’s assessment that Baxter “absolutely presented a credible threat to the safety of others” as he “engaged in a sustained public confrontation while acting aggressively with other gang members and in possession of a loaded firearm.” …

[T]he district court made an explicit finding that marijuana impaired Baxter’s judgment on the night that he was arrested such that it caused him to “threaten[ ] the physical safety of civilians, law enforcement, and his adversaries alike.” And the record amply supports this finding. Accordingly, we conclude that the district court did not err in denying Baxter’s motion to dismiss as the Government met its burden in demonstrating that Baxter’s conduct was sufficiently analogous to the conduct prohibited by the Founding-era Terror of the People laws….

Judge David Stras concurred in the judgment:

The law should not be a game of telephone. But our drug-user-in-possession cases have become one because the rule now “bears little resemblance to” what we said “at the start.” The relevant non-causal question U.S. v. Cooper (8th Cir. 2025) asked was whether a defendant had “induce[d] terror … or pose[d] a credible threat to the physical safety of others with a firearm.” Just months later, the inquiry morphed into whether drug use “caused” a defendant “to induce terror or pose a danger to others with a firearm.” U.S. v. Perez (8th Cir. 2025). Yet Perez also insisted it was remanding “[i]n light of … Cooper.” Both could not be true.

Much like the telephone game, an innocent mistake—adding the word “caused”—had changed the message. Perhaps far more than anyone thought.

Just consider a drug user who argues that, high or not, he is flat-out dangerous with guns. Suppose further that the evidence supports the argument: he ordinarily uses them in a terrorizing way. He is so dangerous, in fact, that drug use hardly moves the needle. Rather than just disarming him for terrorizing others, like the historical analogues allow, Perez gives life to the absurd argument that he can have them because drugs did not cause him to be dangerous. Compare Cooper (explaining that historical laws permitted disarmament if “terrorizing behavior … accompan[ied] the possession” (ellipsis in original) (citation omitted)), and U.S. v. Veasley (8th Cir. 2024) (discussing “Terror of the People” laws that allowed disarmament for using weapons “in a way that terrorized others”), with Perez (requiring the court to find that the drug use “would or did make [the defendant] induce terror” (citation omitted)).

Fortunately, our first-in-time rule offers an easy fix. See U.S. v. Johnson (8th Cir. 2012) (recognizing that when two panel opinions conflict, “we are bound to follow the earliest opinion … as it should have controlled the subsequent panels that created the conflict” (ellipsis in original)). Given that U.S. v. Ledvina (8th Cir. 2026) and Perez said they were following Cooper, why not take them at their word? See Perez (remanding “because the district court and the parties lacked Cooper‘s guidance”); Ledvina (doing the same “[i]n light of th[e] [c]ourt’s decisions in [Perez] and [Cooper]”). If we do, all that matters is that Baxter was a drug user who actually “pose[d] a credible threat to the physical safety of others with a firearm.” I would start and end the analysis there.