FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-30266

Plaintiff-Appellee, D.C. No.

v.  3:07-cr-05683-

RBL-1 RONALD CRAIG POTTER,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Submitted January 10, 2011*

Seattle, Washington

Filed January 26, 2011

Before: Susan P. Graber and Milan D. Smith, Jr.,

Circuit Judges, and Roger T. Benitez,** District Judge.

Per Curiam Opinion

*The panel unanimously concludes that this case is suitable for decision

without oral argument. Fed. R. App. P. 34(a)(2). 

**The Honorable Roger T. Benitez, United States District Judge for the

Southern District of California, sitting by designation. 

1655
COUNSEL

John R. Muenster, Muenster & Koenig, Seattle, Washington,

for the defendant-appellant.

Michael S. Morgan, Assistant United States Attorney, Seattle,

Washington, for the plaintiff-appellee.

OPINION

PER CURIAM:

Defendant Ronald Craig Potter challenges his conviction

for possession of a firearm in furtherance of drug trafficking,

in violation of 18 U.S.C. § 924(c)(1)(A). He argues that the

statute is unconstitutional on its face or as applied, because it

violates the Second Amendment. Reviewing de novo, United

States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.), cert.

denied, 131 S. Ct. 294 (2010), we affirm.1

[1] In District of Columbia v. Heller, 554 U.S. 570, 635

(2008), the Supreme Court held that the right to bear arms is

a personal right, rather than a collective or State right, and

that the District of Columbia’s complete ban on firearms in

the home violated the Second Amendment. Defendant argues

that, because he has a personal right to bear arms in his home,

§ 924(c)(1)(A) is unconstitutional. We disagree.

[2] Both implicitly and explicitly, the Court made clear

that its holding concerned the lawful possession and use of a

firearm. Although the courts undoubtedly will continue to

develop the full scope of the rights conferred by the Second

Amendment, it cannot seriously be contended that the Second

Amendment guarantees a right to use a firearm in furtherance

1

In an unpublished disposition filed concurrently with this opinion, we

reject Defendant’s other arguments. 

UNITED STATES v. POTTER 1657
of drug trafficking. In Heller, the Court emphasized that “the

right secured by the Second Amendment is not unlimited” and

that 

nothing in our opinion should be taken to cast doubt

on longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places

such as schools and government buildings, or laws

imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27.

[3] Not surprisingly, the plurality opinion in the Court’s

later Second Amendment case described the “central holding

in Heller” as “the Second Amendment protects a personal

right to keep and bear arms for lawful purposes.” McDonald

v. City of Chicago, 130 S. Ct. 3020, 3044 (2010) (plurality)

(emphasis added). Clearly, the furtherance of drug trafficking

is not a lawful purpose. We join the Seventh Circuit in holding that § 924(c) is constitutional under the Second Amendment. United States v. Jackson, 555 F.3d 635, 636 (7th Cir.),

cert. denied, 130 S. Ct. 147 (2009); see also Vongxay, 594

F.3d at 1118 (holding that 18 U.S.C. § 922(g)(1), which

criminalizes the possession of firearms by certain felons, is

constitutional).

[4] For the same reasons, the district court properly

rejected Defendant’s proposed “Second Amendment defense”

instruction. Defendant asked that the jury be instructed that it

must find, in addition to finding that the firearm was possessed in connection with drug trafficking, that the firearm

also was not possessed for the defense of Defendant, his family, and his property. Even if he kept the firearm also to protect himself and his home, he committed a crime because he

possessed the firearm in furtherance of drug trafficking. The

final jury instructions were correct. See also United States v.

1658 UNITED STATES v. POTTER
Morsette, 622 F.3d 1200, 1200-01 (9th Cir. 2010) (per

curiam) (holding that Heller and McDonald did not require

alteration of a jury instruction concerning self-defense in a

criminal trial).

AFFIRMED.

UNITED STATES v. POTTER 1659