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Court Upholds Conviction for Possessing Gun as Unlawful Drug User (Who Is Presenting a Credible Threat to Safety)

Eugene Volokh | 7.13.2026 5:33 PM

U.S. v. Baxter, decided today by the Eighth Circuit, upheld a conviction for "possessing a firearm as an unlawful drug user in violation of 18 U.S.C. § 922(g)(3). The Supreme Court's recent U.S. v. Hemani decision held that unlawful drug user (at least when the drug is marijuana) doesn't inherently strip away the user's Second Amendment rights, and thus concluded that some applications of § 922(g)(3) are unconstitutional. But it left open the question of what other applications might be constitutional:

We do not … address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant's use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.

Quoting that language, the Eighth Circuit concluded that Hemani didn't dispose of the case. And it held that Baxter's conviction was indeed consistent with Second Amendment. First, from the facts:

On May 21, 2023, gang members from two gangs—Strap and C-Block— began fighting in downtown Des Moines, Iowa. Baxter, a Strap gang member, was involved in this fight. When law enforcement attempted to break up the fight, the gang members ran in opposite directions, but resumed fighting 30 minutes later. The officers again approached, and Baxter and other Strap members chased the C-Block gang. As the officers were pursuing the chase, a bystander told them that Baxter had a gun.

The officers then confronted Baxter and asked what was in his pocket. Baxter responded, "nothing" and ran from the officers. He was apprehended shortly thereafter. The officers searched Baxter and found a loaded pistol and a baggie of marijuana on his person. The officers then obtained a search warrant to test Baxter's urine for the presence of controlled substances; the test confirmed the presence of THC or........

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