In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1138

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MATTHEW YANCEY,

Defendant-Appellant.

Appeal from the United States District Court

 for the Western District of Wisconsin.

No. 08-cr-00103—Barbara B. Crabb, Judge.

ARGUED AUGUST 4, 2009—DECIDED SEPTEMBER 3, 2010

Before FLAUM, KANNE, and WOOD, Circuit Judges.

PER CURIAM. Matthew Yancey pleaded guilty to possessing a firearm as an unlawful user of marijuana

but reserved the right to argue on appeal that the offense

of conviction, 18 U.S.C. § 922(g)(3), violates the Second

Amendment as interpreted in District of Columbia v.

Heller, 128 S. Ct. 2783 (2008). We conclude that the

statute is constitutional and affirm Yancey’s conviction.

Police officers executed an arrest warrant for Yancey

in June 2008. Yancey, who was 18 at the time, was
2 No. 09-1138

carrying a loaded pistol and 0.7 grams of marijuana. He

confessed that he had been smoking marijuana daily

since age 16. Arrests for possession of marijuana in

2006 and again in 2008 corroborate this admission.

A grand jury charged Yancey with violating 18 U.S.C.

§ 922(g)(3), which makes it a felony for a person “who is

an unlawful user of or addicted to any controlled substance” to possess a gun. An “unlawful user” is someone, like Yancey, who regularly ingests controlled substances in a manner except as prescribed by a physician.

See 27 C.F.R. § 478.11; United States v. Burchard, 580

F.3d 341, 352 (6th Cir. 2009); United States v. Patterson, 431

F.3d 832, 839 (5th Cir. 2005). Yancey conceded the violation but moved to dismiss the indictment on the ground

that the statute violates the Second Amendment. Yancey

cited Heller, which holds that the Second Amendment

preserves an individual’s right to keep handguns for selfdefense. 128 S. Ct. at 2821-22; United States v. Jackson,

555 F.3d 635, 636 (7th Cir.), cert. denied, 130 S. Ct. 147 (2009).

Although Yancey was carrying his gun outside his

home, he argued that Heller shields him from prosecution because he is not a felon and the weapon is commonplace. And, Yancey continued, the government

would need, but could not articulate, a compelling interest to justify dispossessing habitual drug users of their

guns. The district court denied the motion, concluding

that nothing in Heller prevents the government from

criminalizing firearm possession by someone who habitually uses drugs illegally. Yancey then entered a conditional guilty plea and was sentenced to 21 months’ imprisonment and 3 years’ supervised release.
No. 09-1138 3

Yancey’s sole argument on appeal is that the district

court should have dismissed the indictment on the

ground that § 922(g)(3) violates the Second Amendment.

We review the district court’s legal conclusion de novo.

See United States v. Greve, 490 F.3d 566, 570 (7th Cir. 2007).

This court has not yet analyzed § 922(g)(3) after Heller, and

no other circuit has published an opinion deciding its

constitutionality. Our full court, however, did recently

evaluate whether the Constitution permits Congress to

bar those convicted of domestic violence crimes from

possessing firearms, see 18 U.S.C. § 922(g)(9), and we

concluded that it does. See United States v. Skoien, No. 08-

3770, 2010 WL 2735747, at *3 (7th Cir. July 13, 2010)

(en banc).

In considering the constitutionality of § 922(g)(3), we

begin with the Supreme Court’s recent decisions in

Heller and McDonald v. City of Chicago, 130 S. Ct 3020

(2010). Although the Court concluded that the Second

Amendment preserves “the individual right to possess

and carry weapons in case of confrontation,” Heller, 128

S. Ct. at 2797, that right is not unlimited. The Court has

since admonished that Heller “did not cast doubt on

such longstanding regulatory measures as ‘prohibitions

on the possession of firearms by felons and the mentally

ill.’ ” McDonald, 130 S. Ct. at 3047 (quoting Heller, 128 S. Ct.

at 2816-17). Heller’s footnote 26 underscores that at least

these two categorical bans are “presumptively lawful.”

Heller, 128 S. Ct. at 2817 n.26. The Court declined to

further elaborate on the full extent of the Second Amendment’s reach, noting that “there will be time enough to

expound upon the historical justifications for the excep-
4 No. 09-1138

tions we have mentioned if and when those exceptions come before us.” Id. at 2821. With this case, we

move beyond those exceptions to a different, but equally

defensible, categorical ban.

We have already concluded, based on our understanding of Heller and McDonald, that some categorical

firearms bans are permissible; Congress is not limited

to case-by-case exclusions. Skoien, 2010 WL 2735747, at *3.

And we have already considered and rejected the

notion that only exclusions in existence at the time of

the Second Amendment’s ratification are permitted. Id.

It was not until 1968 that Congress barred the mentally

ill from possessing guns, and it was in that same legislation that habitual drug abusers were prohibited from

having guns. See Gun Control Act of 1968, Pub. L. 90-618,

§ 102, 82 Stat. 1213, 1220.

But though Congress may exclude certain categories

of persons from firearm possession, the exclusion must

be more than merely “rational,” Heller, 128 S. Ct. at 2817

n.27, and must withstand “some form of strong showing,” Skoien, 2010 WL 2735747, at *3. (We have thus far,

like the Supreme Court, declined to wade into the “ ‘levels

of scrutiny’ quagmire,” id.; see also Heller, 128 S. Ct. at

2817 (striking down D.C.’s law “[u]nder any level of

scrutiny”)). In both Skoien and United States v. Williams,

we evaluated whether the government had made a

strong showing that the challenged subsection of § 922(g)

was substantially related to an important governmental

objective. See United States v. Williams, No. 09-3174, 2010

WL 3035483, at *6 (7th Cir. Aug. 5, 2010); Skoien, 2010
No. 09-1138 5

WL 2735747, at *3. We apply that same analytical framework here, and again reserve the question whether a

different kind of firearm regulation might require a

different approach. See Williams, 2010 WL 3035483, at *6.

Congress enacted the exclusions in § 922(g) to keep

guns out of the hands of presumptively risky people. See

Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n.6

(1983); see also S. REP. NO. 90-1501, at 22 (1968) (“The

ready availability, that is, the ease with which any

person can anonymously acquire firearms (including

criminals, juveniles without the consent of their parents

or guardians, narcotic addicts, mental defectives, armed

groups who would supplant duly constituted public

authorities, and others whose possession of firearms is

similarly contrary to the public interest) is a matter of

serious national concern.”). The broad objective of

§ 922(g)—suppressing armed violence—is without doubt

an important one, see Williams, 2010 WL 3035483, at *6,

Skoien, 2010 WL 2735747, at *3, and the government

contends that keeping guns away from habitual drug

abusers is substantially related to that goal. As the government notes, many states have restricted the right of

habitual drug abusers or alcoholics to possess or carry

firearms. See ALA. CODE § 13A-11-72(b); ARK. CODE ANN.

§ 5-73-309(7), (8); CAL. PENAL CODE § 12021(a)(1); COLO.

REV. STAT. § 18-12-203(e), (f); DEL. CODE ANN. tit. 11,

§ 1448(a)(3); D.C. CODE § 22-4503(a)(4); FLA. STAT.

§ 790.25(2)(b)(1); GA. CODE ANN. § 16-11-129(2)(f), (i), (j);

HAW. REV. STAT. § 134-7(c)(1); IDAHO CODE ANN. § 18-

3302(1)(e); 720 ILCS 5/24-3.1(a)(3); IND. CODE § 35-47-1-7(5);

KAN. STAT. ANN. § 21-4204(a)(1); KY. REV. STAT. ANN.
6 No. 09-1138

§ 237.110(4)(d), (e); MD. CODE ANN., Public Safety, 5-

133(b)(4), (5); MASS. GEN. LAWS ch. 140, § 129B(1)(iv);

MINN. STAT. § 624.713(10)(iii); MO. REV. STAT.

§ 571.070(1)(1); NEV. REV. STAT. § 202.360(1)(c); N.H. REV.

STAT. ANN. § 159:3(b)(3); N.J. STAT. ANN. § 2C:58-3(c)(2);

N.C. GEN. STAT. § 14-404(c)(3); OHIO REV. CODE ANN.

§ 2923.13(A)(4); R.I. GEN. LAWS § 11-47-6; S.C. CODE ANN.

§ 16-23-30(A)(1); S.D. CODIFIED LAWS § 23-7-7.1(3); W. VA.

CODE § 61-7-7(2), (3). These statutes demonstrate that

Congress was not alone in concluding that habitual drug

abusers are unfit to possess firearms. The state prohibitions, moreover, are merely the latest incarnation of the

states’ unbroken history of regulating the possession and

use of firearms dating back to the time of the amendment’s ratification. See generally Saul Cornell & Nathan

DeDino, A Well-Regulated Right: The Early American Origins

of Gun Control, 73 FORDHAM L. REV. 487, 502 (2004). That

some of these restrictions are entrenched supports their

constitutionality: “This court has repeatedly laid down

the principle that a contemporaneous legislative exposition of the Constitution, when the founders of our government and framers of our Constitution were actively

participating in public affairs, acquiesced in for a long

term of years, fixes the construction to be given its provisions.” Myers v. United States, 272 U.S. 52, 175 (1926).

Keeping guns away from habitual drug abusers is

analogous to disarming felons. We have already concluded that barring felons from firearm possession is

constitutional. See Williams, 2010 WL 3035483, at *7.

Though scholars continue to debate the evidence of

historical precedent for prohibiting criminals from
No. 09-1138 7

carrying arms, compare Skoien, 2010 WL 2735747, at *2; Don

B. Kates, Jr., Handgun Prohibition and the Original Meaning

of the Second Amendment, 82 MICH. L. REV. 204, 266 (1983)

(“Felons simply did not fall within the benefits of the

common law right to possess arms.”), with Skoien, 2010

WL 2735747, at *11 (Sykes, J., dissenting); C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 HARV.

J.L. & PUB. POL’Y 695, 728-35 (2009), it cannot be disputed

that states were regulating firearms as early as the nineteenth century. See State v. Hogan, 58 N.E. 572, 218-19

(Ohio 1900) (opining that prohibition on tramps bearing

arms was constitutional); State v. Shelby, 2 S.W. 468, 469

(Mo. 1886) (upholding law prohibiting intoxicated

persons from carrying firearms); see also Robertson v.

Baldwin, 165 U.S. 275, 281-82 (1897) (noting that Bill of

Rights codified liberties inherited from “our English

ancestors” with well-recognized exceptions). Whatever

the pedigree of the rule against even nonviolent felons

possessing weapons (which was codified in federal law

in 1938), most scholars of the Second Amendment agree

that the right to bear arms was tied to the concept of

a virtuous citizenry and that, accordingly, the government could disarm “unvirtuous citizens.” United States

v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (citing

Glenn Harlan Reynolds, A Critical Guide to the Second

Amendment, 62 TENN. L. REV. 461, 480 (1995), and Don B.

Kates, Jr., The Second Amendment: A Dialogue, LAW &

CONTEMP. PROBS., Winter 1986, at 143, 146 (1986)), petition

for cert. filed (July 13, 2010) (No. 10-5423); THOMAS M.

COOLEY, A TREATISE ON CONSTITUTIONAL LIMITATIONS 29

(Boston, Little Brown & Co. 1868) (explaining that con-
8 No. 09-1138

stitutions protect rights for “the People” excluding, among

others, “the idiot, the lunatic, and the felon”); see also

Skoien, 2010 WL 2735747, at *2. As we’ve explained in

a different context, most felons are nonviolent, but someone with a felony conviction on his record is more likely

than a nonfelon to engage in illegal and violent gun use.

United States v. Lane, 252 F.3d 905, 906 (7th Cir. 2001).

Thus, while felon-in-possession laws could be criticized

as “wildly overinclusive” for encompassing nonviolent

offenders, every state court in the modern era to

consider the propriety of disarming felons under analogous state constitutional provisions has concluded that

step to be permissible. Adam Winkler, Scrutinizing the

Second Amendment, 105 MICH. L. REV. 683, 721 (2007). And

that reasoning applies with equal force to Congress’s

extension of the firearms ban to another category of

habitual criminals with § 922(g)(3).

Moreover, habitual drug abusers, like the mentally ill,

are more likely to have difficulty exercising self-control,

making it dangerous for them to possess deadly firearms. In Heller and McDonald, the Court endorsed the

exclusion of the mentally ill from firearm possession as presumptively valid. McDonald, 130 S. Ct. at 3049;

Heller, 128 S. Ct. at 2816-17. Federal law did not prohibit

firearm possession by those adjudicated mentally ill or

committed to a mental institution until 1968, see Skoien,

2010 WL 2735747, at *2 (citing Pub. L. 90-618, 82 Stat.

1213, 1220). But the absence of historical statutory prohibitions on firearm possession may have been the consequence of the fact that “in eighteenth-century America,

justices of the peace were authorized to ‘lock up’ ‘lunatics’
No. 09-1138 9

who were ‘dangerous to be permitted to go abroad.’ ”

Carlton F.W. Larson, Four Exceptions in Search of a Theory:

District of Columbia v. Heller and Judicial Ipse Dixit, 60

HASTINGS L.J. 1371, 1377 (2009) (citing HENRY CARE,

ENGLISH LIBERTIES, OR THE FREE-BORN SUBJECT’S INHERITANCE 329 (6th ed. 1774)); accord Don B. Kates & Clayton E.

Cramer, Second Amendment Limitations and Criminological

Considerations, 60 HASTINGS L.J. 1339, 1361 n.136; see also

United States v. Emerson, 270 F.3d 203, 226 n.21 (5th

Cir. 2001) (noting that “lunatics” and “those of unsound

mind” were historically prohibited from firearm possession). Extending the ban to those who regularly abuse

drugs makes particular sense because the Court has

noted the similarity between the two groups. A few

years before Congress barred the mentally ill and

habitual drug abusers from possessing guns, the Court

noted that drug addiction is an illness not unlike

other mental illnesses, and that it could in some cases

be contracted innocently or inadvertently. See Robinson v.

California, 370 U.S. 660, 667 (1962); see also Linder v.

United States, 268 U.S. 5, 18 (1925). In Robinson, the

Court struck down a law criminalizing drug addiction, which the Court reasoned was analogous to imprisoning someone for having a common cold. 370 U.S. at

667. But even while recognizing that addiction is an

illness, the Court nevertheless recognized that an addict’s

behavior can be regulated. Just a few months before Congress excluded both the mentally ill and drug users

from firearm possession, the Court clarified that the

Constitution did not forbid criminalizing the public acts

of a habitual user. Rather than criminalizing status, the

Court said, the state “has imposed upon appellant a
10 No. 09-1138

criminal sanction for public behavior which may create

substantial health and safety hazards, both for appellant and for members of the general public.” Powell

v. Texas, 392 U.S. 514, 532 (1968); see also United States v.

Jester, 139 F.3d 1168, 1170 (7th Cir. 1998) (citing Powell

to support constitutionality of felon-in-possession laws).

So, too, with keeping firearms out of the hands of an

habitual drug abuser, who has “lost the power of

self-control with reference to the use of controlled substance,” 27 C.F.R. § 478.11, and whose possession of a

firearm likewise poses substantial health and safety

hazards. As the House manager stated during debate

on the legislation, “No one can dispute the need to

prevent drug addicts, mental incompetents, persons with

a history of mental disturbances, and persons convicted

of certain offenses, from buying, owning, or possessing

firearms.” 114 CONG. REC. 21784 (1968).

Ample academic research confirms the connection

between drug use and violent crime. For example, nearly

four times as many adults arrested for serious crimes

had used an illegal drug in the previous year than had not.

See OFFICE OF APPLIED STUDIES, SUBSTANCE ABUSE

AND MENTAL HEALTH SERVICES ADMINISTRATION,

ILLICIT DRUG USE AMONG PERSONS ARRESTED FOR

SERIOUS CRIMES, NSDUH REPORT (2005), available at

http://www.oas.samhsa.gov/2k5/arrests/arrests.pdf. Other

academic research demonstrates a strong connection

between drug use and violence. See, e.g., Carrie B. Oser, et

al., The Drugs—Violence Nexus Among Rural Felony Probationers, 24 J. INTERPERSONAL VIOLENCE 1285, 1298-99 (2009)

(noting connection between illegal stimulant use and

violence as well as economically motivated violence by
No. 09-1138 11

drug addicts); BUREAU OF JUSTICE STATISTICS, U.S.

DEP’T OF JUSTICE, DRUG USE AND DEPENDENCE, STATE

AND FEDERAL PRISONERS, 2004, at 7 (2007), available at

http://bjs.ojp.usdoj.gov/content/pub/pdf/dudsfp04.pdf

(noting that nearly half of violent offenders in state

prisons were dependent on drugs); H. Virginia McCoy,

et al., Perpetrators, Victims, and Observers of Violence: Chronic

and Non-Chronic Drug Users, 16 J.INTERPERSONAL VIOLENCE

890, 906 (2001) (documenting notable connection between chronic drug abusers and violence); Roger H.

Peters, et al., Prevalence of DSM-IV Substance Abuse and

Dependence Disorders Among Prison Inmates, 24 AM. J. DRUG

ALCOHOL ABUSE 573, 583 (1998) (reporting that threequarters of state inmates have a history of substance

abuse); Lana Harrison & Joseph Gfroerer, The Intersection

of Drug Use and Criminal Behavior: Results from the

National Household Survey on Drug Abuse, 38 CRIME &

DELINQUENCY 422, 438 (1992) (reporting that drug

abusers are more likely to engage in both property and

violent crimes). These studies amply demonstrate the

connection between chronic drug abuse and violent

crime, and illuminate the nexus between Congress’s

attempt to keep firearms away from habitual drug

abusers and its goal of reducing violent crime.

Finally, unlike those who have been convicted of a

felony or committed to a mental institution and so face

a lifetime ban, an unlawful drug user like Yancey could

regain his right to possess a firearm simply by ending

his drug abuse. In that sense, the restriction in § 922(g)(3)

is far less onerous than those affecting felons and the

mentally ill. We have observed before that there is no
12 No. 09-1138

constitutional problem with separating guns and drugs.

See Jackson, 555 F.3d at 636. The prohibition in § 922(g)(3)

bars only those persons who are current drug users

from possessing a firearm, and “[i]t is obvious that

the tenses used throughout Title IV [including § 922(g)]

were chosen with care.” Scarborough v. United States, 431

U.S. 563, 570 (1977); see also United States v. Jackson, 480

F.3d 1014, 1021 (9th Cir. 2007). Every circuit to have

considered the question has demanded that the habitual

abuse be contemporaneous with the gun possession.

See Patterson, 431 F.3d at 839; United States v. Augustin,

376 F.3d 135, 139 (3d Cir. 2004); United States v. Turnbull,

349 F.3d 558, 561 (8th Cir. 2003), vacated on other grounds,

543 U.S. 1099 (2005) (finding Booker error), reinstated, 414

F.3d 942 (8th Cir. 2005); United States v. Jackson, 280

F.3d 403, 406 (4th Cir. 2002); United States v. Purdy, 264

F.3d 809, 812-13 (9th Cir. 2001). Thus the gun ban extends

only so long as Yancey abuses drugs. In that way, Yancey

himself controls his right to possess a gun; the Second

Amendment, however, does not require Congress to

allow him to simultaneously choose both gun possession and drug abuse.

In sum, we find that Congress acted within constitutional bounds by prohibiting illegal drug users from

firearm possession because it is substantially related to

the important governmental interest in preventing

violent crime.

AFFIRMED.

9-3-10