1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, ) 

 ) 

 Plaintiff, ) Case No. 20 CR 443 

 ) 

 v. ) Judge Robert W. Gettleman

 ) 

JOHN SEIWERT ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION & ORDER

 Defendant John Seiwert (“Seiwert”) is charged with being a prohibited person in 

possession of a firearm, in violation of 18 U.S.C. § 922(g)(3). Section 922(g)(3) prohibits 

possession of firearms by unlawful drug users and drug-addicted individuals. Seiwert moves to 

dismiss the indictment because the pending charge allegedly violates his rights under the Second 

Amendment to the United States Constitution. For the reasons discussed below, Seiwert’s 

renewed motion to dismiss the indictment (Doc. 85) is denied.1

 

BACKGROUND

 Seiwert previously filed a motion to dismiss the indictment in this case based in part on a 

violation of his rights under the Second Amendment of the United States Constitution (Doc. 49). 

Seiwert, however, acknowledged that this basis for dismissing the indictment was foreclosed by 

United States v. Yancey, 621 F.3d 681 (7th Cir. 2010). In the present motion, Seiwert re-raises

the issue based on the Supreme Court’s ruling in New York Rifle & Pistol Assn. v. Bruen, 142 

1 The court set a briefing schedule on this motion on August 25, 2022 (Doc. 86). Defendant’s reply brief was due on 

September 23, 2022. As of the date of this ruling, there is no indication that defendant has filed a reply brief in 

accordance with the court’s briefing schedule. 

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S. Ct. 2111 (2022). 

Seiwert is charged with unlawful possession of a firearm in violation of 18 U.S.C. 

§ 922(g)(3). Section 922(g)(3) prohibits the possession of firearms by any person “who is an 

unlawful user or addicted to any controlled substance.” In July 2020, Federal Bureau of Alcohol, 

Tobacco, and Firearms (“ATF”) agents executed a federal search warrant on defendant’s 

residence and found more than 100 firearms, including the firearm that he is charged with 

possessing in this case. In a recorded and Mirandized interview, Seiwert admitted that he is a

longtime drug addict and had used drugs within hours before the agents searched his home. He 

admitted to a 20-year history of daily drug use and described himself as a “functioning addict.” 

Following his arrest, Seiwert told officers, “I’m gonna be sick if I don’t get any [drugs],” 

allegedly implicating withdrawal symptoms. 

LEGAL STANDARD

 The Second Amendment to the U.S. Constitution provides that “[a] well regulated 

Militia, being necessary to the security of a free State, the right of the people to keep and bear 

Arms, shall not be infringed.” U.S. Const. amend. II. In District of Columbia v. Heller, 554 

U.S. 570 (2008), the Supreme Court determined that “the right secured by the Second 

Amendment is not unlimited.” Id. at 626. The right extends only to “the people,” which 

encompasses only “law-abiding, responsible” citizens who keep or bear arms for “lawful 

purposes.” Id. at 635. Therefore, the Supreme Court determined that regulations on firearm 

possession by felons and the mentally ill are presumptively constitutional. Id. at 626. 

 Accordingly, in United States v. Yancey, 621 F.3d 681 (7th Cir. 2010), and United States 

v. Cook, 970 F.3d 866 (7th Cir. 2020), the Seventh Circuit rejected the argument that § 922(g)(3) 

violates the Second Amendment. The Seventh Circuit determined that habitual drug users are 

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like felons and the mentally ill, both of whom legislatures have historically disarmed. Yancey, 

621 F.3d at 686‒87; Cook, 970 F.3d at 878. Because of this conclusion, the court held that the 

government’s legitimate interest in preventing violent crime was substantially related to the 

statute’s ban on firearm possession by unlawful drug users. Yancey, 621 F.3d at 687. 

 The Supreme Court, however, recently rejected such a means-end standard to evaluate 

regulations under the Second Amendment in Bruen. 142 S. Ct. 2111, 2126 (2022). In Bruen, the

Supreme Court held that “when the Second Amendment’s plain text covers an individual’s 

conduct, the Constitution presumptively protects that conduct.” Id. When the Second

Amendment’s plain text protects certain conduct, the government can regulate such conduct only 

if it can demonstrate that the regulation is consistent with the historical tradition of firearm

regulation in the United States. Id. Otherwise, the court must conclude that the individual’s 

firearm-related conduct is protected because it falls within the Second Amendment’s 

“unqualified command.” Id. 

DISCUSSION

In the present case, Seiwert argues that § 922(g)(3) violates his rights under the Second 

Amendment considering the recent Bruen standard. First, he claims that his possession of 

firearms in this case was presumptively legal under Bruen because he lawfully possessed the 

firearms in his home under Illinois law. Next, he argues that § 922(g)(3) is unconstitutional on 

its face because the government cannot point to a historical tradition of firearm regulation with 

respect to drug use. 

The government counters that the government has historically retained the power to 

regulate possession of firearms by classes of citizens “who, by virtue of their current or past 

criminal activity, are deemed dangerous.” The government claims that § 922(g)(3) is “the most 

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recent iteration of longstanding prohibitions on firearms possession by citizens whom society has 

judged to lack the ability to conform their conduct to the law.” Bruen, they argue, “address[es] 

only restrictions placed on ‘law-abiding citizens.’” According to the government, § 922(g)(3) 

addresses “those who are not, by definition, law-abiding citizens and, instead, are among the 

classes of individuals whose rights to bear arms historically have been restricted for public 

safety.” Thus, the government concludes that unlawful users of controlled substances fall 

outside the Second Amendment’s protection. 

 The court agrees with the government. Seiwert admitted to years of addiction to heroin 

and crack cocaine, in addition to using a controlled substance mere hours before his arrest. As 

the government notes, federal law—not Illinois law, as Seiwert argues—defines who is an 

unlawful user of a controlled substance for the purpose of § 922(g)(3). An individual is an 

unlawful user of a controlled substance under § 922(g)(3) if he is engaged in the regular and 

ongoing use of a drug at the time of his firearm possession, see United States v. Cook, 970 F.3d 

866, 878‒79 (7th Cir. 2020), as Seiwert admitted that he was.2 

Moreover, the court agrees with the government that § 922(g)(3) is constitutional by 

“historical analog[y]” if § 922(g)(3) is “relevantly similar” to other historical regulations. Bruen, 

142 S. Ct. at 2132‒33. In this case, § 922(g)(3) is relevantly similar to regulations aimed at 

preventing dangerous or untrustworthy persons from possessing and using firearms, such as 

individuals convicted of felonies or suffering from mental illness. See also United States v. 

Daniels, No. 1:22-CR-58-LG-RHWR-1, 2022 WL 2654232, at *4 (S.D. Miss. July 8, 2022). 

2 In addition, federal implementing regulations for the Gun Control Act of 1968, which includes § 922(g)(3), define 

an “unlawful user of or addicted to any controlled substance” as “[a] person who uses a controlled substance and has 

lost the power of self-control with reference to the use of controlled substance” whose “unlawful use has occurred 

recently enough to indicate that the individual is actively engaged in such conduct.” 27 C.F.R. § 478.11. 

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CONCLUSION

 For the reasons set forth above, Seiwert’s renewed motion to dismiss the indictment 

(Doc. 85) is denied. 

ENTER: 

_________________________________________ 

Robert W. Gettleman

United States District Judge

DATE: September 28, 2022 

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