by Thomas Lundy

A.    The Statutory Language

    18 U.S.C. 922(g)(3) provides as follows:

        "It shall be unlawful for any person – . . .

    (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

18 U.S.C. 802 defines "addict" for purposes of 18 U.S.C. 922 as follows:

The term "addict" means any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction. 

    However, there is no comparable statutory definition of "unlawful user."

B.    Argument That In Light Of The Second Amendment; Strict Scrutiny Requires That "Unlawful User" Be Equated With Addiction

    Although most other circuits have held to the contrary, the Fifth Circuit has held that the Second Amendment imparts an individual right to keep and bear arms. (United States v. Emerson, 270 F.3d 203, 218-20; 232 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002).) To the extent that the Second Amendment does apply, it may be argued as a matter of "strict scrutiny" that:

Since Congress defined the term "addicted to" but did not define the term "unlawful user" in any way, shape or form . . . what the government must prove beyond a reasonable doubt is facts sufficient to satisfy the statutory definition of "addicted to."

(United States v. Herrera, 313 F.3d 882, 891 (5th Cir. 2002), dis. opn. of Judge DeMoss.)

C.    Even If The Second Amendment Doesn't Apply, The Term "Unlawful User" Should Be Strictly Defined To Require Regular And Prolonged Use

    It is true that under the ordinary meaning of unlawful user "it is somewhat strange to conclude that the statute does not prohibit the possession of a firearm by a person who is using (or presently under the influence of) a controlled substance." (United States v. Williams, 216 F.Supp.2d 568, 575 (E.D. Va. 2002).) However, "a number of other courts have avoided the need to confront a vagueness challenge to § 922(g)(3) by adopting [a] very restrictive definition of ‘user'. . . ." (Id., at 575-76.)

    For example, in United States v. Purdy, 264 F.3d 809 (9th Cir. 2001) the Ninth Circuit concluded that:

. . . to sustain a conviction under § 922(g)(3), the government must prove -- as it did here -- that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm.

(Purdy, 264 F.3d at 812-13.)

    Similarly, in United States v. Herrera, 313 F.3d 882, 886 (5th Cir. 2002) the U.S. Attorney conceded that "for a defendant to be an ‘unlawful user' for § 922(g)(3) purposes, his ‘drug use would have to be with regularity and over an extended period of time.'" (Herrera, 313 F.3d at 885.)

    And, United States v. Williams, 216 F.Supp.2d at 575 concluded that:

"to sustain a conviction under 18 U.S.C. § 922(g)(3), the United States must prove that there was a pattern, and recency, of drug use by the defendant (i.e., United States v. Jackson, 280 F.3d 403, 406 (4th Cir. 2002)) or that the drug use was ‘sufficiently consistent,' ‘prolonged,'‘and close in time to [the defendant's] gun possession to put him on notice that he qualified as an unlawful user of drugs under the statute'. . ."

D.    Sample Instructions

    Based on the foregoing authority, the following sample instructions may be appropriate where firearm liability under 18 U.S.C. is alleged on the basis that the defendant is an "unlawful user" of drugs.

    An unlawful user is one who uses an illegal drug or drugs with regularity and over an extended period of time. 

[Source: United States v. Herrera, 313 F.3d 882, 885 (5th Cir. 2002).]

    To prove the "unlawful user" element of the charge, the prosecution must establish that at the time [he] [she] allegedly ______________ [e.g., possessed] the firearm, the defendant was an unlawful user of an illegal drug. This requires the prosecution to prove beyond a reasonable doubt that the defendant took drugs with regularity, over an extended period of time and contemporaneously with the alleged _________________ [e.g., possession] of the firearm.

[Source: United States v. Purdy, 264 F.3d 809, 812-13 (9th Cir. 2001).]