United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 23-1114

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Devonte Antonio Veasley

 Defendant - Appellant

____________

Appeal from United States District Court 

for the Southern District of Iowa - Central 

____________ 

Submitted: November 2, 2023

Filed: April 17, 2024 

____________ 

Before GRUENDER, STRAS, and KOBES, Circuit Judges. 

____________

STRAS, Circuit Judge.

Devonte Veasley pleaded guilty to possessing a firearm—a federal offense for 

someone who is using or addicted to a controlled substance. See 18 U.S.C. 

§ 922(g)(3). The question is whether criminalizing this conduct always violates the 

Second Amendment. The answer is no, so we reject Veasley’s facial challenge to 

the statute.
-2- 

I. 

A drug deal went sideways when, rather than going through with it, Veasley 

pulled out a handgun and shot at his dealer. After the attack, the government charged 

him with possessing a firearm while “unlawful[ly] us[ing]” a “controlled substance.” 

Id. 

A month after he pleaded guilty, the Supreme Court decided New York State 

Rifle & Pistol Ass’n v. Bruen, which concluded that a New York law requiring 

“proper cause” to carry a firearm violated the Second Amendment. 597 U.S. 1, 12–

13 (2022). It was inconsistent with “this Nation’s historical tradition of firearm 

regulation.” Id. at 17. 

Inspired by Bruen, Veasley asks us to reach the same conclusion about 18 

U.S.C. § 922(g)(3), the federal drug-user-in-possession statute. He believes the

district court1 should have allowed him to withdraw his plea or dismissed the 

indictment. The court did neither, however, leaving him with only one option: 

challenging the facial constitutionality of the statute. See United States v. NunezHernandez, 43 F.4th 857, 860 (8th Cir. 2022) (clarifying that a guilty plea does not 

foreclose “arguments that a criminal statute underlying a conviction is facially 

unconstitutional”); United States v. Seay, 620 F.3d 919, 922 n.3 (8th Cir. 2010) 

(explaining why a guilty plea forecloses an as-applied constitutional challenge). His 

facial challenge is now before us.

II. 

 

Section 922(g)(3) prohibits anyone “who is an unlawful user of or addicted to 

any controlled substance” from possessing a “firearm or ammunition.” 18 U.S.C. 

§ 922(g)(3). The penalties for a violation can be heavy, up to 15 years in prison. 

1

The Honorable Rebecca Goodgame Ebinger, United States District Judge for 

the Southern District of Iowa.
-3- 

See id. § 924(a)(8). Even more for career offenders. See id. § 924(e). Whether this 

scheme is constitutional is a legal question subject to de novo review. See Seay, 620 

F.3d at 923; see also United States v. Sitladeen, 64 F.4th 978, 983 (8th Cir. 2023) 

(reviewing the denial of a motion to dismiss an indictment de novo); United States 

v. Seys, 27 F.4th 606, 610 (8th Cir. 2022) (reviewing the denial of a motion to 

withdraw a guilty plea for an abuse of discretion). 

This is not the first time we have examined § 922(g)(3)’s constitutionality. 

We have, for example, entertained a Fifth Amendment void-for-vagueness

challenge. The statute survived because of a “judicially[ ]created temporal nexus 

between the gun possession and regular drug use,” United States v. Carnes, 22 F.4th 

743, 748 (8th Cir. 2022) (citation omitted), but we left the door open for as-applied

challenges, see, e.g., United States v. Turner, 842 F.3d 602, 604–05 (8th Cir. 2016).

 

Another set of challenges, like the one here, focuses on the Second 

Amendment. See, e.g., Seay, 620 F.3d at 922. A two-part test, based on “text and 

historical understanding,” governs them. Bruen, 597 U.S. at 26; see District of 

Columbia v. Heller, 554 U.S. 570, 576–78, 628–32 (2008). Step one provides the 

textual threshold: does a law prohibit “conduct” that “the Second Amendment’s 

plain text covers”? Bruen, 597 U.S. at 17. Crossing that threshold leads to step two, 

“historical understanding”: is “the regulation . . . consistent with this Nation’s 

historical tradition of firearm regulation”? Id.; see Sitladeen, 64 F.4th at 985. If it 

is, then the statute “pass[es] constitutional muster.” Bruen, 597 U.S. at 30. 

Constitutional challenges like these come in two varieties. The first is 

as-applied, which requires courts to examine a statute based on a defendant’s

individual circumstances. See United States v. Lehman, 8 F.4th 754, 757 (8th Cir. 

2021). If a frail and elderly grandmother uses marijuana for a chronic medical 
-4- 

condition a day before possessing a gun, for example, the constitutional analysis will 

consider only those circumstances, not what a different defendant might do.2

 

A facial challenge, the only type still available to Veasley, goes further. As 

the Supreme Court has explained, “[a] facial challenge is really just a claim that the 

law or policy at issue is unconstitutional in all its applications,” regardless of the

individual circumstances. Bucklew v. Precythe, 587 U.S. 119, 138 (2019) (emphasis 

added). The stakes are higher in a facial challenge, so the bar goes up as well: there 

must be, as Veasley acknowledges, “no set of circumstances . . . under which 

[§ 922(g)(3)] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); 

see Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) 

(noting that “a facial challenge must fail where the statute has a plainly legitimate 

sweep” (citation omitted)). If some applications are constitutional, then facially 

speaking, the statute is too. See, e.g., United States v. Stephens, 594 F.3d 1033, 1038 

(8th Cir. 2010) (holding that a defendant’s “facial challenge . . . fails because . . . . 

[o]ne can imagine many defendants [to] whom” the statute could constitutionally

apply); Antonyuk v. Chiumento, 89 F.4th 271, 314 (2d Cir. 2023) (rejecting a facial 

Bruen challenge to a licensing scheme requiring good moral character because 

“[t]here are applications of the character provision that would be constitutional”). 

These differences have practical consequences. An as-applied challenge 

would focus only on Veasley: is applying “the regulation” to his conduct 

“[in]consistent with this Nation’s historical tradition of firearm regulation”? Bruen, 

597 U.S. at 17. To counter a facial challenge, by contrast, all the government must 

2

It is true that we have held that there is no need for “felony-by-felony 

litigation regarding the constitutionality of” a statute prohibiting the possession of 

firearms by felons. United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023). Key 

to that decision were the “assurances by the Supreme Court” that nothing in Heller

or Bruen “cast doubt on longstanding prohibitions on the possession of firearms by 

felons.” Id. at 501–02 (quoting Heller, 554 U.S. at 626). Here, by contrast, the

Supreme Court has made no such “assurances” about “prohibitions” on drug users

and addicts. Id.
-5- 

do is identify constitutional applications—even if they are unrelated to Veasley’s 

conduct—using the same text-and-historical-understanding framework. See id. at 

33–34; United States v. Raines, 362 U.S. 17, 22 (1960) (cautioning courts not to 

“pronounc[e] an Act of Congress unconstitutional” when constitutional applications

exist). 

In effect, Veasley is speaking for a range of people. On its face, § 922(g)(3) 

applies to everyone from the frail and elderly grandmother to regular users of a drug 

like PCP, which can induce violence. See United States v. Daniels, 77 F.4th 337, 

355 (5th Cir. 2023) (concluding that a marijuana user’s § 922(g)(3) conviction was 

inconsistent with the history and tradition of firearms regulation); see also Mim J. 

Landry, Understanding Drugs of Abuse: The Processes of Addiction, Treatment, and 

Recovery 108 (1994) (“PCP toxicity may include combative hostility, paranoia, 

depersonalization, and violence . . . .”). In a prior case, we concluded that a facial 

challenge could not succeed. See Seay, 620 F.3d at 925. Bruen has supplemented 

the analysis, but it has not changed the answer. See Jackson, 69 F.4th at 501–06 

(undertaking the historical analysis “endorsed by Bruen” rather than just relying on

two post-Heller decisions, United States v. Adams, 914 F.3d 602, 607 (8th Cir. 2019) 

and United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011)); cf. Sitladeen, 64 F.4th 

at 985–87 (concluding that a pre-Bruen precedent only remained binding because it 

“did exactly” what “Bruen [now] tells us to” (emphasis added)). 

III. 

In this appeal, we assume that § 922(g)(3) “governs conduct that falls within 

the plain text of the Second Amendment.” Sitladeen, 64 F.4th at 985; see U.S. Const. 

amend. II. That is, drug users “are part of ‘the people’ whom the Second 

Amendment protects,” and “handguns are weapons ‘in common use’ today.” Bruen, 

597 U.S. at 31–32. So “we proceed to ask whether [§ 922(g)(3)] fits within 

America’s historical tradition of firearm regulation.” Sitladeen, 64 F.4th at 985. 
-6- 

A.

It makes sense to start with the closest “historical analogue,” Bruen, 597 U.S. 

at 30, which is the regulation of intoxicating substances. Alcohol and drug abuse 

have been “general societal problem[s],” id. at 26, for thousands of years. See Hanan 

Hamdi et al., Early Historical Report of Alcohol Hepatotoxicity in Minooye Kherad, 

a Pahlavi Manuscript in Ancient Persia, 6th Century CE, 13 Caspian J. Internal

Med. 431, 431 (2022) (“[S]everal kinds of alcoholic beverages have been . . . abused 

by humans for thousands of years . . . . [A]rchaeological and historical evidence 

revealed that the fermentation of grains into beer . . . dated back about 20,000 years 

as an ancient custom.” (Internal citations omitted)). Colonial times were no 

exception. See Bruen, 597 U.S. at 26. Physician Benjamin Rush, a signer of the 

Declaration of Independence, recognized that alcohol can be so addictive that some 

drinkers “can afford scarcely any marks of remission either during the day or the 

night.” Benjamin Rush, An Inquiry into the Effects of Ardent Spirits upon the Human 

Body and Mind 8 (8th ed., Boston, James Loring 1823); see Karl Mann et al., One 

Hundred Years of Alcoholism: The Twentieth Century, 35 Alcohol & Alcoholism 

10, 10 (2000). 

Other drugs were around then too. The use of opioids was common. First 

introduced in the 17th century, the “formulation known as ‘laudanum’ (i.e., tincture 

of opium) . . . incorporate[d] opium along with other ingredients, such as cinnamon, 

clover, and saffron, in Spanish wine.” Enrique Raviña, The Evolution of Drug 

Discovery: From Traditional Medicine to Modern Drugs 11 (2011); see J. K. 

Crellin, Domestic Medicine Chests: Microcosms of 18th and 19th Century Medical 

Practice, 21 Pharmacy in Hist. 122, 126 (1979) (noting that 18th-century medicine 

chests contained opiates and laudanum). Cannabis was in use too. See Martin 

Booth, Cannabis: A History 70 (2003) (describing the widespread use of hemp and 

recognition of its psychoactive properties). And so were natural hallucinogens. See 

generally Martin Nesvig, Forbidden Drugs of the Colonial Americas, in The Oxford 

Handbook of Global Drug History 153–75 (Paul Gootenberg ed., 2022) (discussing

the use of ayahuasca, peyote, and hallucinogenic mushrooms in colonial America). 
-7- 

Many of these drugs, and others like them, remain a problem today. When a 

“challenged regulation [like § 922(g)(3)] addresses a general societal problem that 

has persisted since the 18th century,” like substance abuse, “the lack of a distinctly 

similar historical regulation addressing that problem is relevant evidence that the 

challenged regulation is inconsistent with the Second Amendment.” Bruen, 597 

U.S. at 26. “Likewise, if earlier generations addressed the societal problem, but did 

so through materially different means, that also could be evidence that a modern 

regulation is unconstitutional.” Id. at 26–27. Our task is to figure out whether 

§ 922(g)(3) looks like anything that “earlier generations” did to keep firearms out of 

the hands of drug and alcohol users. Id. at 26.

For drinkers, the focus was on the use of a firearm, not its possession. And 

the few restrictions that existed during colonial times were temporary and narrow in 

scope. One came from Virginia, which banned “shoot[ing] any gunns at drinkeing.” 

Act XII of Mar. 10, 1655, reprinted in 1 The Statutes at Large; Being a Collection 

of All the Laws of Virginia, from the First Session of the Legislature in the Year 

1619, at 401, 401–02 (William Waller Hening ed., New York, R. & W. & G. Bartow 

1823). Another from New York, which prohibited firing guns for the three days 

bracketing New Years, December 31 to January 2, because of the “great Damages” 

done by those “intoxicated with Liquor.” Act of Feb. 16, 1771, ch. 1501, reprinted 

in 5 The Colonial Laws of New York from the Year 1664 to the Revolution 244, 244–

45 (Albany, James B. Lyon 1894). Disarmament, on the other hand, was not an 

option.

3

 See Daniels, 77 F.4th at 345–46 (surveying Founding-era statutes and 

concluding they were “limited in scope and duration” when it came to guns and 

alcohol, different from the way § 922(g)(3) operates). 

3

It only became one toward the end of the 19th century. See, e.g., Act of Apr. 

3, § 3, 1883 Wis. Sess. Laws 290 (forbidding any person in a “state of intoxication” 

from going “armed with any pistol or revolver”); Act of Feb. 17, § 1, 1909 Idaho 

Sess. Laws 6 (prohibiting “hav[ing] or carry[ing]” any “deadly or dangerous 

weapon” when “intoxicated, or under the influence of intoxicating drinks”). 
-8- 

There was even less regulation when it came to drugs. “[T]housands of . . . 

Americans at the time[] had become dependent on opium,” Elizabeth Kelly Gray, 

Habit Forming: Drug Addiction in America, 1776-1914, at 20 (2023), and

lawmakers were certainly aware of the problem. Senator John Randolph of Virginia 

was a user. See id. at 20–21. And so was Senator Robert Goodloe Harper’s motherin-law, who died of laudanum dependency. See id. at 21. Founding Father Rufus 

King, also a senator, wrote letters to his doctor lamenting his sister’s opium 

dependency, including how it impaired her ability to care for her children. Id. 

Laudanum even held Thomas Jefferson in its grip for a while after he left the 

presidency. See John M. Holmes, Thomas Jefferson Treats Himself: Herbs, 

Physicke, & Nutrition in Early America 35–36 (1997). In a letter, Jefferson stated 

that “with care and laudanum I may consider myself in what is to be my habitual 

state.” Letter from Thomas Jefferson to Robey Dunglison (Nov. 17, 1825), in The 

Jefferson-Dunglison Letters 41, 42 (John M. Dorsey ed., 1960). 

Despite the widespread use of opium in particular, the government concedes 

that its “review of early colonial laws has not revealed any statutes that prohibited 

[firearm] possession” by drug users. In fact, the “general societal problem” of drug 

addiction did not receive congressional attention until 1909. See Smoking Opium 

Exclusion Act of 1909, Pub. L. No. 60-221, 35 Stat. 614; see also Harrison Narcotics 

Tax Act, Pub. L. No. 63-223, 38 Stat. 785 (1914). And drug use went unmentioned 

in the National Firearms Act, which Congress passed almost 25 years later. See Pub. 

L. No. 73-474, 48 Stat. 1236 (1934). Instead, it took until 1968, with the passage of 

§ 922(g)(3), for Congress to keep guns away from drug users and addicts. 

The lesson here is that disarmament is a modern solution to a centuries-old 

problem. The fact that “earlier generations addressed the societal problem . . . 

through materially different means . . . [is] evidence that” disarming all drug users, 

simply because of who they are, is inconsistent with the Second Amendment. Bruen, 

597 U.S. at 26.
-9- 

B. 

The key word is all. As Bruen itself recognizes, “the Constitution can, and 

must, apply to circumstances beyond those the Founders specifically anticipated.” 

Id. at 28 (emphasis added). Modern synthetic drugs present a “dramatic 

technological change[].” Id. at 27. James Madison never experimented with 

methamphetamine, Benjamin Franklin did not dabble in PCP, and Thomas Jefferson 

did not use fentanyl to take the edge off the day. Today’s drugs are different than 

the opiates and cannabis of the past. They are, in a word, “unprecedented.” Id. 

When it comes to regulations “implicating unprecedented societal concerns,” 

Bruen is clear that we cannot look at history through a pinhole. Id. Rather, we must 

take “a more nuanced approach,” again “reasoning by analogy,” to determine 

whether there is “a well-established and representative historical analogue” that 

could make § 922(g)(3) constitutional in some of its applications. Id. at 27–30; see 

Raines, 362 U.S. at 22. It turns out there is. 

1. 

Our expanded search begins with the mentally ill. “Obviously, mental illness 

and drug use are not the same thing. But there is an intuitive similarity” because 

their behavioral effects overlap. Daniels, 77 F.4th at 349; compare Tatiana Ramey 

& Paul S. Regier, Cognitive Impairment in Substance Use Disorders, 24 CNS 

Spectrums 102, 103–05 (2019) (noting that the typical effects of substance abuse are

“attentional bias [to] drug seeking,” “impairment[] in inhibitory control,” “[w]orking 

memory impairment[],” and “poor decision-making”), with Yafen Wang et al., 

Cognitive Impairment in Psychiatric Diseases: Biomarkers of Diagnosis, Treatment, 

and Prevention, 16 Frontiers Cellular Neuroscience, Nov. 2, 2022, at 2 (listing 

“notable deficits in the speed of processing, working memory, attention/vigilance, 

verbal learning, visual learning, reasoning and problem-solving, and social 

cognition” as manifestations of mental illness). The fact that the analogy works for 

some, and that the mentally ill sometimes lost their guns, means that § 922(g)(3) 
-10- 

cannot be facially unconstitutional. See Salerno, 481 U.S. at 745 (applying the noset-of-circumstances test). 

The legal view of mental illness in the 18th century was different than it is 

now. Many believed it to be a transitory condition, just like intoxication. As 

Blackstone put it, “lunatic[s] . . . had understanding, but . . . hath lost the use of . . . 

reason.” 1 William Blackstone, Commentaries *294 (emphasis added). The 

common belief was that they had “lucid intervals” or periods during which they 

“enjoy[ed] [their] senses.” Id. Under that view, they were never “looked upon as 

irrecoverable.” Anthony Highmore, A Treatise on the Law of Idiocy and Lunacy

104 (London, R. Wilks 1807); see also id. at 105 (characterizing lunacy as “periods 

of imbecility”); 1 Blackstone, Commentaries *294 (explaining that “the law always 

imagines . . . [their] accidental misfortunes may be removed”). 

The law described intoxication in the same rudimentary way, with almost 

identical terminology. Consider Thomas Cooley, who described drunkenness as a 

form of “temporary insanity.” Thomas M. Cooley, A Treatise on the Constitutional

Limitations Which Rest upon the Legislative Power of the States of the American

Union 599 n.2 (2d Ed., Boston, Little, Brown, & Co. 1874). Or Benjamin Rush, 

who viewed it as a “temporary fit of madness.” Rush, supra, at 6. The same went 

for drug addiction, even though the scientific understanding of it was still evolving 

at the time. See Gray, supra, at 20 (describing a patient who suffered “[i]nsanity 

from the use of [o]pium” and ended up institutionalized). 

The similarities did not stop there. Just like the intoxicated kept their civil 

liberties, including the right to possess firearms, the mentally ill frequently did too. 

Those who posed no danger stayed at home with their families, and their civil 

liberties remained intact. See Gerald N. Grob, Mad Among Us 7 (1994) (“Before 

the American Revolution . . . . [t]he care of the insane remained a family 

responsibility.”); id. (explaining that “so long as [family] members could provide 

the basic necessities of life for afflicted relatives, no other arrangements were 

required”). 
-11- 

Life was different, however, for those who were both mentally ill and 

dangerous. See Albert Deutsch, Public Provision for the Mentally Ill in Colonial 

America, 10 Soc. Serv. Rev. 606, 606 (1936). They “were confined in barred cells 

in the basement,” and “particularly violent individuals” were “restrained . . . using a 

‘strait-waistcoat’ or ‘mad shirt,’ or heavy arm and leg chains.” Lynn Gamwell & 

Nancy Tomes, Madness in America 20 (1995). It should come as no surprise that 

confinement did not include access to guns. See Francis C. Gray, Prison Discipline 

in America 16 (Boston, Charles C. Little & James Brown, 1847) (noting that, in early 

American jails, “the custom of garnish was established and unquestioned; that is, 

the custom of stripping every new comer of his outer clothing, to be sold for liquor”);

Letter from Jonathan Gillet to Family (Dec. 1776), in Imprisoned in America: Prison 

Communications: 1776 to Attica, 3, 3–4 (Cynthia Owen Philip ed., 1973) (providing 

the account of a Connecticut soldier “made prisoner” who wrote that “they first 

disarmed me then plundred me of all I had”). 

Justices of the peace and other officials had a lot of discretion when deciding 

whether to confine the mentally ill. An early Massachusetts statute empowered 

“selectmen” to “take care of the” mentally ill to prevent them from “damnify[ing] 

others.” Act of May 3, 1676, reprinted in 5 Records of the Governor & Company 

of the Massachusetts Bay in New England 80–81 (Nathaniel V. Shurtleff ed., Boston, 

William White, 1853). A 1788 New York statute authorized justices of the peace, 

many of whom had no formal legal training, to “lock[] up” and “chain[]” the 

“furiously mad” in a “secure place.” Act of Feb. 9, 1778 N. Y. Sess. Laws 645; see 

Chester H. Smith, The Justice of the Peace System in the United States, 15 Calif. L. 

Rev. 118, 127 (1927) (noting that “justices of the peace are laymen, that they are not 

required to be otherwise, and that they are very seldom ‘learned in the law’”). And 

a Connecticut law allowed them to order the confinement of “persons under 

distraction and unfit to go at large, whose friends do not take care for their safe 

confinement.” Edward Warren Capen, The Historical Development of the Poor Law 

of Connecticut 62–63 (1905). 
-12- 

These colonies and states were not the only ones to do it. It was so common 

that one manual describing the duties of justices of the peace said that “[a]ny person 

may justify confining and beating his friend being mad . . . as is proper in such 

circumstances.” James Parker, Conductor Generalis: Or, the Office, Duty and 

Authority of Justices of the Peace 291 (New York, John Patterson 1788); see Daniel 

Davis, A Practical Treatise upon the Authority and Duty of Justices of the Peace in 

Criminal Prosecutions 41 (Boston, Hilliard, Gray, Little, & Wilkins 1828) (“In order 

to prevent the commission of a crime, any person may lawfully lay hold of a lunatic 

who is about to commit any mischief . . . .”). In England too, they could

“apprehend[]” and “lock[] up” people “disordered in [their] senses” or dangerous 

“[l]unatic[s].” Henry Care, English Liberties, or the Free-born Subject’s 

Inheritance 329 (6th ed. Providence, John Carter 1774). 

Initially, the colonies had no place for them. Sometimes, the solution was jail. 

See Deutsch, supra, at 608 (explaining that “[i]ncarceration in jail was the common 

solution”). Other times, building a one-person asylum. In Pennsylvania, for 

example, the son of a poor man was “bereft of his naturall Senses and [was] turned 

quyt madd,” so a judge ordered “three or four p’sons bee hired to build a [l]ittle 

[b]lock[-]house at [A]mesland for to put in the . . . madman.” The Record of the 

Court at Upland in Pennsylvania, 1676 to 1681, and a Military Journal Kept by 

Major E. Denny, 1781 to 1795, 102 (Edward Armstrong ed., Philadelphia, J.B. 

Lippincott & Co. 1860). In Massachusetts, a court placed a woman in a “a litle house 

7 foote long & 5 foote wide,” which her brother built with funds provided by the 

town’s residents. Records of the Town of Braintree, 1640 to 1793, at 26 (Samuel A. 

Bates ed., Randolph, Daniel H. Buxford 1886). 

Mental hospitals later became the norm. In mid-1700s Pennsylvania, people 

grew tired of having those “disorder’d in their [s]enses . . . wander[ing] about, to the 

[t]error of their [n]eighbours.” Benjamin Franklin, Some Account of the 

Pennsylvania Hospital 3 (I. Bernard Cohen ed., Johns Hopkins Press 1954). Their

solution was the creation of the Pennsylvania Hospital, which “confined . . . 

[p]ersons distemper’d in [m]ind” or “deprived of their rational [f]aculties.” Id. at 3–
-13- 

4. Less than two decades later, Virginians established the Eastern State Hospital to 

house those “deprived of their [s]enses” who “terrif[ied] the [r]est of their [f]ellow 

[c]reatures” and could not “help themselves.” Francis Fauquier, Lieutenant 

Governor, Va., The Speech of the Honble Francis Fauquier, Esq; His Majesty’s 

Lieutenant Governour, and Commander in Chief of the Colony and Dominion of 

Virginia to the General Assembly 4 (Nov. 6, 1766) (Williamsburg, Purdie and Dixon 

1766); see generally Norman Dain, Disordered Minds: The First Century of Eastern 

State Hospital in Williamsburg, Va., 1766-1866 (1st ed. 1971). 

The number of mental hospitals steadily grew from there. “The[y] were not 

medical facilities designed for treatment; rather, they were intended to separate those 

suffering from mental illness from the rest of society.” Wilbur R. Miller, The Social 

History of Crime and Punishment in America: An Encyclopedia 1080 (2012). Their

purpose was “to preserve the peace of the community” from those who posed a 

danger to others. Alan Dershowitz, The Origins of Preventive Confinement in 

Anglo-American Law Part II: The American Experience, 43 U. Cin. L. Rev. 781, 

787–88 (1974); see United States v. Jackson, 85 F.4th 468, 476 (8th Cir. 2023) 

(Stras, J., dissenting from denial of reh’g en banc) (discussing dangerousness). 

Society’s answer to mental illness, in other words, was to lock up anyone who was 

“dangerous or disturbing to others.” Dershowitz, supra, at 788. 

Confinement led to the loss of liberties. “[T]hose afflicted with mental disease 

were generally treated as if they had been thereby stripped of all human attributes, 

together with their rights and privileges as human beings.” Deutsch, supra, at 607–

08. Thomas Cooley put it more bluntly with his observation that “the idiot” and “the 

lunatic” were “almost universally excluded” from civil liberties “on obvious 

grounds.” Cooley, supra, at 29; see Bruen, 597 U.S. at 35–36 (explaining how postratification history can shed light on the Second Amendment’s meaning). Gun rights 

were no exception. 

By the late 1800s, state legislatures allowed the prosecution of people who 

gave guns to the mentally ill. An 1881 Florida law, for example, made it illegal “to 
-14- 

sell, hire, barter, lend or give to any person or persons of unsound mind any 

dangerous weapon, other than an ordinary pocket-knife.” Act of Feb. 4, § 1, 1881 

Fla. Laws 87. And in Kansas, it was unlawful to sell “any pistol, revolver or toy 

pistol . . . or other dangerous weapons to . . . any person of notoriously unsound 

mind.” Act of Mar. 5, § 1, 1883 Kan. Sess. Laws 159. Along with the even longer 

tradition of confinement, these laws suggest that society made it a priority to keep 

guns out of the hands of anyone who was mentally ill and dangerous. See Heller,

554 U.S. at 626–27 (reaffirming that “nothing in our opinion should be taken to cast 

doubt on longstanding prohibitions on the possession of firearms by . . . the mentally 

ill”); McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (“repeat[ing] th[at] 

assurance”). 

The “burden” imposed by § 922(g)(3) is “comparable,” if less heavy-handed, 

than Founding-era laws governing the mentally ill. Bruen, 597 U.S. at 29. It goes 

without saying that confinement with straitjackets and chains carries with it a greater 

loss of liberty than a temporary loss of gun rights. And the mentally ill had less of 

a chance to regain their rights than drug users and addicts do today. See 1 

Blackstone, Commentaries *294 (explaining that the law “always imagines . . . 

[their] accidental misfortunes may be removed”). Stopping the use of drugs, after 

all, restores gun rights under § 922(g)(3). See Carnes, 22 F.4th at 748. 

The justification, which is to “keep guns out of the hands of presumptively 

risky people,” is also comparable. United States v. Yancey, 621 F.3d 681, 683 (7th 

Cir. 2010) (per curiam). It is reflected in colonial-era laws, whether it be disarming 

loyalists, see Jackson, 85 F.4th at 471–72 (Stras, J., dissenting from denial of reh’g 

en banc), or making sure the mentally ill could not harm themselves or others. At 

least as applied to drug users and addicts who pose a danger to others, § 922(g)(3) is 

just another example of this “longstanding” tradition. Heller, 554 U.S. at 626–27 

n.26. 

In Veasley’s view, the analogy is flawed because confining someone has 

always required a judicial finding. And so does disarming the mentally ill today, 
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which requires an “adjudicat[ion] as a mental defective” or “commit[ment] to a 

mental institution.” 18 U.S.C. § 922(g)(4). Drug users and addicts, by contrast,

receive no warning that they are ineligible to possess a firearm. See 18 U.S.C. 

§ 922(g)(3).

We reject Veasley’s argument for two reasons. The first is the historical 

record, which shows that there was limited process accompanying the confinement 

of the mentally ill, particularly given the broad discretion afforded to justices of the 

peace. See Bruen, 597 U.S. at 27 (requiring a historical, not a current, analogue). 

Second, there is a finding required under § 922(g)(3), it just comes later. Getting a

conviction requires proof beyond a reasonable doubt of “regular drug use,” Carnes, 

22 F.4th at 748, and possession of a firearm, not to mention close timing between 

the two. See United States v. Mack, 343 F.3d 929, 933 (8th Cir. 2003) (explaining 

that the government must “demonstrate that [the defendant] was a ‘user of any 

controlled substance’ during the period of time he possessed the firearms” (quoting 

18 U.S.C. § 922(g)(3))). The procedure may not be identical, but it does not have to 

be. See Bruen, 597 U.S. at 30 (noting that a modern-day regulation need not be a 

“dead ringer for [a] historical precursor[]”). 

2. 

 

Another “historical analogue” makes it even clearer that Veasley’s facial 

challenge cannot succeed. Id. This one focuses on conduct, not status. As the above 

discussion makes clear, possession of a firearm under § 922(g)(3) must accompany 

other conduct: drug use. In this way, it resembles the Founding-era criminal

prohibition on taking up arms to terrify the people. See George Webb, The Office of 

Authority of the Justice of the Peace 92–93 (Williamsburg, William Parks 1736) 

(discussing Virginia law); see also Act For the Punishing of Criminal Offenders, Ch. 

11, 96 (1692), reprinted in The Charters and General Laws of the Colony and 

Province of Massachusetts Bay 237, 240 (Boston, T.B. Wait & Co. 1814); Statute 

of Northampton, 2 Edw. 3, c.3 (1328). 
-16- 

The offense, called Terror of the People, has a lengthy historical pedigree. See 

Jackson, 85 F.4th at 474 (Stras, J., dissenting from denial of reh’g en banc). 

Although it started as a common-law offense, England formalized it in the 1328 

Statute of Northampton. See Bruen, 597 U.S. at 40–45 (discussing it). In its earliest 

form, it prohibited going “armed to terrify the King’s subjects.” Id. at 43–44. At 

first, arms did not include firearms, which did not reach Europe until the mid-1500s. 

See id. at 41 (collecting sources). 

As firearms became more common, however, so did the idea of criminalizing 

their misuse. See id. at 46 (discussing early Massachusetts and New Hampshire 

laws). Under one Massachusetts law, for example, justices of the peace could 

“arrest[] all . . . disturbers, or breakers of the peace . . . armed offensively” and 

“commit [them] to prison.” Act of Jan. 29, 1795, § 2, reprinted in 2 The Laws of the 

Commonwealth of Massachusetts, from November 28, 1780 to February 28, 1807, 

at 652–53 (Boston, J.T. Buckingham 1807). Likewise, in Kentucky, “[r]iding or 

going armed with dangerous or unusual weapons, [wa]s a crime against the public 

peace, by terrifying the people of the land, which [wa]s punishable by forfeiture of 

the arms, and fine and imprisonment.” Charles Humphreys, A Compendium of the 

Common Law in Force in Kentucky, to Which Is Prefixed a Brief Summary of the 

Laws of the United States 482 (Lexington, William Gibbs Hunt 1822). 

But the offense was not about mere possession, or even openly carrying a 

firearm. See Bruen, 597 U.S. at 45. It required more, the “offensive[]” use of a 

firearm in a way that terrorized others. Webb, supra, at 92; see Bruen, 597 U.S. at 

45 (explaining that the offense required public carry accompanied by “such 

Circumstances as are apt to terrify the People” (quoting 1 Pleas of the Crown 136)); 

id. at 50 (noting that early American laws “prohibit[ed] bearing arms in a way that 

spreads ‘fear’ or ‘terror’ among the people”). One example was Robert Huntly’s 

decision to ride while armed in the North Carolina countryside with a stated intent 

to kill James Ratcliff, with whom he had been feuding at the time. See State v. 

Huntly, 25 N.C. (3 Ired.) 418, 421 (1843). In that case as well as others, terrorizing 

behavior had to accompany the possession. See id; see also O’Neill v. State, 16 Ala. 
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65, 67 (1849) (reasoning that “no quarrelsome words merely” would constitute an 

affray but that “if persons arm themselves with deadly or unusual weapons for the 

purpose of an affray, and in such manner as to strike terror to the people, they may 

be guilty of this offense” (citation omitted)); cf. Simpson v. State, 13 Tenn. (5 Yer.)

356, 360 (1833) (noting that the mere carrying of arms was not alone “a necessarily 

consequent operation as terror to the people”). 

Just like its historical counterparts, § 922(g)(3) does not criminalize mere 

possession. It requires another act, the taking of drugs, which itself can cause

terrifying and dangerous behavior. See Landry, supra, at 108. The decision to 

engage in illegal and dangerous conduct, in other words, is what leads to a temporary 

deprivation, which ends once the illegal behavior does. In that way, § 922(g)(3) 

imposes a “comparable burden” on the right to bear arms. Bruen, 597 U.S. at 29. 

At least for some drug users, the justification is also “comparable.” Id. 

Controlled substances can induce terrifying conduct, made all the more so by the 

possession of a firearm. All it takes is a few minutes flipping through the pages of 

the Federal Reporter to locate some examples. See, e.g., United States v. Ferguson, 

889 F.3d 314, 315 (7th Cir. 2018) (“[H]igh and drunk” 17-year old shot his 

carjacking victim “several times” while “[t]he victim’s niece and the niece’s 4-yearold daughter witnessed.”); Hadley v. Gutierrez, 526 F.3d 1324, 1327 (11th Cir. 

2008) (“[W]hile high on cocaine, Hadley entered a Publix supermarket yelling, 

‘Help me, help me, Jehovah God please help me!’ and [officers], upon arriving at 

the store, found Hadley running around and knocking items off of the shelves.”);

United States v. Simmons, 260 F.3d 937, 938 (8th Cir. 2001) (“While high on

painkillers,” the defendant conspired to commit a heist that included “shoot[ing] any 

police officers who responded to the scene.”).

To be sure, not every drug user or addict will terrify others, even with a 

firearm. Consider the 80-year-old grandmother who uses marijuana for a chronic 

medical condition and keeps a pistol tucked away for her own safety. It is 

exceedingly unlikely she will pose a danger or induce terror in others. But those are 
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details relevant to an as-applied challenge, not a facial one. For our purposes, all we 

need to know is that at least some drug users and addicts fall within a class of people 

who historically have had limits placed on their right to bear arms.

 

* * * 

Consistent with Seay, “we reject [Veasley’s] facial challenge to 

§ 922(g)[(3)].” 620 F.3d at 925. But we add to its analysis by doing the historical 

work and “analogical reasoning” that Bruen requires. 597 U.S. at 29–30; cf. 

Jackson, 69 F.4th at 501–06 (doing the same when analyzing the constitutionality of 

§ 922(g)(1), the felon-in-possession statute). What it tells us is that, for some drug 

users, § 922(g)(3) is “analogous enough to pass constitutional muster.” Bruen, 597 

U.S. at 30. Whether it is for others is a question for another day.

IV.

We accordingly affirm the judgment of the district court. 

GRUENDER, Circuit Judge, concurring in the judgment.

I concur in the judgment. I write separately because I believe the court’s 

inquiry into historical analogues is unnecessary in light of our prior caselaw. In 

United States v. Seay, 620 F.3d 919 (8th Cir. 2010), we were confronted, as here, 

with a Second Amendment facial challenge to 18 U.S.C. § 922(g)(3). We rejected 

the defendant’s facial challenge after concluding that “§ 922(g)(3) is the type of 

longstanding prohibition on the possession of firearms that Heller declared 

presumptively lawful.” Id. at 925 (internal quotation marks omitted); see District of 

Columbia v. Heller, 554 U.S. 570, 627 & n.26 (2008). Because Seay predates New 

York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the court asserts we 

must “add to [Seay’s] analysis by doing the historical work and ‘analogical 

reasoning’ that Bruen requires.” Ante at 18. In my view, however, we are bound by 

Seay, and no further inquiry is necessary.
-19- 

In Heller, 554 U.S. at 627 & n.26, the Supreme Court identified a nonexhaustive list of “presumptively lawful regulatory measures.” Nothing in Bruen 

disturbed or cast doubt on the constitutionality of those regulatory measures deemed 

by Heller to be “presumptively lawful.” See, e.g., Bruen, 597 U.S at 10 (stating that 

the Court’s holding was “consistent with Heller”); id. at 24 (stating that the Court 

was “reiterat[ing] . . . the standard for applying the Second Amendment”); id. at 26 

(stating that the Court was “apply[ing]” the test “set forth in Heller”); id. at 27 

(stating that the Court was “[f]ollowing the course chartered by Heller”). 

We have already categorized § 922(g)(3) as a presumptively lawful regulatory 

measure consistent with Heller. See Seay, 620 F.3d at 925. Because Bruen did not 

disturb Seay, we remain bound by Seay. See United States v. Sitladeen, 64 F.4th 978, 

983-87 (8th Cir. 2023) (holding, in the context of § 922(g)(5)(A), that we were 

bound by a pre-Bruen case); United States v. Jackson, 69 F.4th 495, 506 (8th Cir. 

2023) (Smith, C.J., concurring) (stating, in a post-Bruen challenge to § 922(g)(1), 

that “Heller remains the relevant precedent we are bound to apply”); Vincent v. 

Garland, 80 F.4th 1197 (10th Cir. 2023) (rejecting a defendant’s challenge to 

§ 922(g)(1) as foreclosed by the court’s pre-Bruen precedent); United States v. 

Dubois, 94 F.4th 1284, 1291-93 (11th Cir. 2024) (rejecting a defendant’s challenge 

to § 922(g)(1) in light of the court’s prior caselaw). Having determined that Seay 

controls this case, I also would avoid the court’s dicta regarding potential as-applied 

challenges. See Jackson, 69 F.4th at 502 (concluding “that there is no need for 

felony-by-felony litigation regarding the constitutionality of § 922(g)(1)”). 

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