Legal Commentary

Second Amendment Does Not Extend to Possession of Firearm in Furtherance of Drug Trafficking

By Eugene Volokh

So holds yesterday?s U.S. v. Potter (9th Cir.):

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....

Both implicitly and explicitly, the Court [in D.C. v. Heller] 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 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.

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 (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).

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.

Full post as published by The Volokh Conspiracy on January 27, 2011 (boomark / email).