United States of America v. LaVance LeMarr Cooper
No. 24-1998
United States Court of Appeals For the Eighth Circuit
February 5, 2025
Submitted: January
Before GRASZ, STRAS, and KOBES, Circuit Judges.
STRAS, Circuit Judge.
In United States v. Veasley, 98 F.4th 906, 908 (8th Cir. 2024). we concluded that keeping firearms out of the hands of drug users does not “always violate[] the Second Amendment.” Now the question is whether it sometimes can. The answer is yes, so we remand for the district court to determine whether it does for LaVance Cooper.
I.
Cooper consented to a bench trial on stipulated facts. One was that he smoked marijuana three to four times a week. Another was that he had done it two days before officers found a Glock 20 pistol in his car during a traffic stop. Based on those facts and a few others, the district court found Cooper guilty of being a drug user in possession of a firearm, see
Although Veasley recognized that as-applied challenges to the drug-user-in-possession statute are available, the district court disagreed. It was not open to dismissing the indictment even if, as Cooper argued, he posed no threat to anyone and had last smoked marijuana two days before the traffic stop. See
Cooper believes that Veasley requires a different answer. He continues to argue that prosecuting him under
II.
In every Second Amendment case, the overarching question is whether a limitation on the right to keep and bear arms is “consistent with this Nation‘s historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1, 17 (2022). Key to answering that question is identifying “analogue[s]“: Founding-era regulations that “impose[d] a comparable
A.
Fortunately, much of the background work on the drug-user-in-possession statute has already been done. In Veasley, we identified two Founding-era analogues that “make [it] constitutional in [certain] applications“: “confinement of the mentally ill” and the “criminal prohibition on taking up arms to terrify the people.” Veasley, 98 F.4th at 912, 916.
Early in this country‘s history, the “mentally ill and dangerous” ended up in jails, makeshift asylums, and mental hospitals “with straitjackets and chains.” Id. at 915. Confinement came with a “loss of liberties,” including disarmament, “to preserve the peace of the community.” Id. (quoting 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)). “Those who posed no danger,” by contrast, “stayed at home with their families,” with “their civil liberties . . . intact.” Id. at 913.
The question is whether
Much the same goes for Veasley‘s other analogue, Terror of the People. See Veasley, 98 F.4th at 916-17; Rahimi, 602 U.S. at 697-98. Initially a common-law crime and later codified in some states, these going-armed laws required more than “mere possession” of a weapon. Veasley, 98 F.4th at 917. As “a mechanism for punishing those who had menaced others with firearms,” Rahimi, 602 U.S. at 697, an essential element was “terrorizing behavior . . . accompany[ing] the possession,” Veasley, 98 F.4th at 917. See, e.g., State v. Huntly, 25 N.C. 418, 423, 3 Ired. 311, 315 (1843) (explaining that the
The lesson to draw is that this analogy only works “for some drug users.” Veasley, 98 F.4th at 917. When “a court has found that the defendant ‘represents a credible threat,‘” a ban on firearm possession “fits neatly within the tradition.” Rahimi, 602 U.S. at 698-99 (quoting
These two analogues also frame the relevant questions for resolving Cooper‘s as-applied challenge. Did using marijuana make Cooper act like someone who is “both mentally ill and dangerous“? Veasley, 98 F.4th at 913. Did he “induce terror,” id. at 918, or “pose a credible threat to the physical safety of others” with a firearm, Rahimi, 602 U.S. at 700? Unless one of the answers is yes—or the government identifies a new analogue we missed, but cf. United States v. Connelly, 117 F.4th 269, 274-75 (5th Cir. 2024) (coming up with a similar list)—prosecuting him under
B.
Nothing in our tradition allows disarmament simply because Cooper belongs to a category of people, drug users, that Congress has categorically deemed dangerous. Neither the confinement of the mentally ill nor the going-armed laws operated on an irrebuttable basis.
In fact, each had an individualized assessment built in. Confinement of the mentally ill, for example, occurred at the “discretion” of “[j]ustices of the peace and other officials,” but usually only after a finding that there would be some risk of “mischief” without it. Veasley, 98 F.4th at 914 (quoting Daniel Davis, A Practical Treatise upon the Authority and Duty of Justices of the Peace in Criminal Prosecutions 41 (Boston, Hilliard, Gray, Little, & Wilkins 2d ed. 1828)); see Rahimi, 602 U.S. at 699 (explaining that if imprisonment is permissible, then the lesser sanction of “temporary disarmament” is too). Similarly, going-armed laws applied based on a “judicial determination[] [that] a particular defendant . . . had threatened another with a weapon.” Id. at 699; see id. (discussing a Massachusetts law that required “‘reasonable cause to fear’ . . . harm or breach [of] the peace” (quoting
The only potential analogue that seemed to apply categorically was intoxication, but disarmament was not the remedy for it. See Veasley, 98 F.4th at 912. As Veasley discussed, intoxication has been prevalent throughout our nation‘s history, but “earlier generations addressed th[at] societal problem” by restricting when and how firearms could be used, not by taking them away. Id. at 911 (quoting Bruen, 597 U.S. at 26). Only later, in the mid-20th century, did legislative attention turn to the potential danger posed by mixing guns and drugs. See id. at 912. These analogues make clear that “disarming all drug users,” regardless of the individual danger they pose, is not comparable to anything from around the time of the Founding. Id.
We recognize that not every group targeted by a disarmament law is the same. Consider felons. In United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024), a panel of this court surveyed a different set of Founding-era laws and concluded that they supported a categorical ban. See id. (holding that “there is no need for felony-by-felony litigation” under
We have “no such ‘assurances,‘” however, about drug users and addicts. Veasley, 98 F.4th at 909 n.2 (quoting United States v. Jackson, 69 F.4th 495, 501-02 (8th Cir. 2023), vacated, 144 S. Ct. 2710 (2024)). Nor has our review of the historical tradition surrounding them, to the extent one exists, turned up any bright-line rules.2 Sometimes disarming drug users and addicts will line up with the case-
by-case historical tradition, but other times it will not. See id. at 918. The district court‘s task on remand is to figure out which side of the Second Amendment line Cooper‘s case falls on.
C.
The district court, for its part, agreed with our analogy to the going-armed laws, but dismissed much of the rest of what we said as dicta. It took issue with our discussion of how
The reason is simple: the “outer bounds” of the Second Amendment are always “delimit[ed]” by “historical tradition.” Bruen, 597 U.S. at 19. From that foundational principle, “the appropriate analysis” necessarily “involves considering whether the challenged regulation . . . is ‘relevantly similar’ to laws that our tradition is understood to permit.” Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29). The only thing that changes is the height of the hurdle facing the challenger. See Veasley, 98 F.4th at 909 (explaining that the “bar goes up” in a facial challenge). The underlying textual and historical analysis remain the same. See id. at 910 (explaining that “the same text-and-historical-understanding framework” applies either way); Rahimi, 602 U.S. at 690 (rejecting a facial challenge because, “[a]s applied to the facts of th[at] case, Section 922(g)(8) fits comfortably within th[e] [historical] tradition“); see also Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 330-31 (2010).
Look at it this way. See Bruen, 597 U.S. at 28-30 (explaining how to do “analogical reasoning under the Second Amendment“). It is true that a facial challenge requires a showing that there is “no set of circumstances . . . under which [
D.
Although both sides invite us to resolve Cooper‘s as-applied challenge, the district court is in the best position to take the first crack at it. The factual record is thin, given that the case proceeded to a bench trial on stipulated facts, so the parties may want to supplement the record with other evidence. In the meantime, we will tie up a loose end to save everyone time on remand.
The government suggests in its briefing that Cooper is too dangerous to have a gun because he “possessed [one] for protection after [a] recent shooting at his residence.” (Emphasis added). We disagree for two reasons. First, the parties only stipulated that “officers were dispatched to [his] residence . . . in reference to an individual who had been shot,” not a shooting that happened there. (Emphasis added). And second, “individual self-defense is ‘the central component’ of the Second Amendment right,” not an exception to it.3 McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (quoting District of Columbia v. Heller, 554 U.S. 570, 599 (2008)); see Heller, 554 U.S. at 628 (emphasizing that “the home [is] where the need for defense of self, family, and property is most acute“).
III.
We accordingly vacate the district court‘s judgment and remand for a reexamination of Cooper‘s motion to dismiss the indictment.