• The Second Amendment and Drug Possession
• H&S Code § 11370.1; Possession of a Controlled Substance While Armed

Health and Safety Code § 11370.1, making it illegal for a person in possession of a controlled substance to also be in possession of a loaded, operable firearm, does not violate the Second Amendment right to bear arms.

Defendant Daniel Edwards Gonzalez was found asleep by a police officer while parked at the side of the road with .6 grams of methamphetamine and a loaded gun at his feet.  Having a prior felony record, he was charged in state court with being a felon in possession of both a firearm (P.C. § 29800(a)(1)) and ammunition (P.C. § 30305(a)).  Because he possessed both a loaded operable firearm and a controlled substances, he was further charged with being in possession of a controlled substance while armed (H&S § 11370.1). Convicted of everything, and with a couple of prior strikes being found to be true, he was sentenced to six years in prison.  Defendant appealed.

The Fourth District Court of Appeal (Div. 2) affirmed.  The sole issue on appeal was the constitutionality of H&S § 11370.1; “being in possession of a controlled substance while armed,” at least as it might pertain to defendant.  Subdivision (a) of section 11370.1 prohibits the possession of any of a number of specifically listed controlled substances (including methamphetamine) while also being “armed with a loaded, operable firearm.” Defendant argued on appeal that section 11370.1 violated his Second Amendment right to bear arms.  This argument was based upon the supposition that to be constitutional under the Second Amendment, a statutory restriction on gun possession must be limited to “preventing violent crime.”  Specifically, defendant argued that section 11370.1 violated his Second Amendment right to keep and bear arms because, as written, it targets “nonviolent criminals” as well, such as himself.  The Court, in ruling against defendant, held that there is no constitutional impediment to enacting a statute that prohibits the possession of a firearm while also in possession of a controlled substance.  The landmark U.S. Supreme Court decision in this area of the law is District of Columbia v. Heller (2008) 554 U.S. 570, where the High Court—in noting that the rights and privileges under the Second Amendment are not absolute—ruled that, “‘the Second Amendment is not unlimited’ and does not grant ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’” (Heller, at p. 626.)  In Heller, the U.S. Supreme Court noted that contrary to the argument made by many gun control advocates, the Second Amendment is not limited to the context of militia service.  Rather, the “core” of the Second Amendment is targeted towards protecting “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” (Italics added; Id., at pp. 634–635.)  Heller used as examples of constitutionally permissible statutory prohibitions on firearm possession when it is possessed by a convicted felon, or by someone who is mentally ill.  Also permissible is the limiting of firearms in sensitive places such as schools and government buildings. (Ibid.)  The Supreme Court found that such prohibitions are “presumptively lawful regulatory measures,” noting that this short list was intended to be “exemplary, not exhaustive.” (Id. at p. 627, fn. 26.) Two years later, in McDonald v. City of Chicago (2010) 561 U.S. 742, the Supreme Court repeated its assurances that the Second Amendment “does not imperil every law regulating firearms” and that the kind of longstanding restrictions mentioned in Heller remain presumptively valid. (Id., at pg. 786.)  California is obligated to follow this reasoning in that the High Court in McDonald specifically ruled that the Second Amendments’ protections apply to the states.  (Id., at pp. 785-786.)  Subsequent to Heller and McDonald, federal courts developed a two-step test for assessing Second Amendment challenges to statutory restrictions on firearms possession.  First, it must be determined “whether the challenged law burdens conduct that falls within the scope of the Second Amendment’s guarantee of protecting the right of responsible, law-abiding citizens to possess firearms to protect their home.” (Gould v. Morgan (1st Cir. 2018) 907 F.3rd 659, 668–669.)  If it does not, then that ends the issue.  The statute as issue is constitutional.  If, however, the law does infringe on a law-abiding citizen’s right to possess firearms, then, secondly, a court must inquire into “the strength of the government’s justification” for the law by balancing the statute’s objectives against the means it employs to accomplish those ends; i.e. “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.” (Ezell v. City of Chicago (7th Cir. 2011) 651 F.3rd 684, 703.)  In Daniel Gonzalez’s case (being briefed here), the Appellate Court held that defendant didn’t even get past the first step of this analysis.  While the Supreme Court has yet to rule on this issue, and no lower appellate court has yet to specifically hold that H&S § 11370.1 is in fact consistent with the Second Amendment, the Court had no problem finding, as a matter of first impression, that it is.  Looking at federal circuit court opinions, the Court reviewed the following holdings, all of which are consistent with this conclusion.  In United States v. Jackson (7th Cir. 2009) 555 F.3rd 635, 636, it was held that “there is no constitutional problem with separating guns from drugs.”  In United States v. Greeno (6th Cir. 2012) 679 F.3rd 510, the Sixth Circuit upheld the constitutionality of a sentence enhancement penalizing the carrying of a dangerous weapon during the commission of a drug offense.  The Second Circuit, in United States v. Bryant (2nd Cir. 2013) 711 F.3rd 364, at pg. 369, recognized that there is “an implicit limitation” on the exercise of one’s right to bear arms to when it is done “for ‘lawful purpose[s],’” rejecting a Second Amendment challenge to a federal law criminalizing the possession of a firearm in furtherance of a drug trafficking crime (i.e.,18 U.S.C. § 924(c)(1)(A)).  The Ninth Circuit, in United States v. Potter (9th Cir. 2011) 630 F.3rd 1260, also rejected a defendant’s Second Amendment challenge to this same federal violation in a ruling similar to that made by the Second Circuit in Bryant.  And in the State of Colorado, it was held in a state court decision (People v. Cisneros (Colo.Ct.App. 2014) 356 P.3d 877.) that a law penalizing possession of a firearm “in connection with a person’s commission of a felony drug offense” is constitutional, specifically because the statute “does not apply to law-abiding citizens, . . .  (and as such,) does not infringe on the Second Amendment right to bear arms.” (Id. at p. 887.)  While not discussing the Second Amendment specifically, California’s appellate courts have noted that “the purpose of section 11370.1 is ‘to protect the public and law enforcement officers and “stop the growing menace from a very deadly combination—illegal drugs and firearms.’”’” (In re Ogea (2004) 121 Cal.App.4th 974, 984, italics added by this Court; quoting People v. Pena (1999) 74 Cal.App.4th 1078, 1082.)  Lastly, the Court cited United States v. Yancey (7th Cir. 2010) 621 F.3rd 681, 686, which upheld the constitutionality of a statute prohibiting drug abusers from possessing firearms based in part on “studies [that] amply demonstrate the connection between chronic drug abuse and violent crime.”  In conclusion, and based upon the above, the Court held here that it is “reasonable to assume (that) a person armed with a loaded, operable firearm during the commission of any crime” (italics added) might well feel the need to use that weapon to avoid being arrested and/or to maintain possession of their illicit stash.  Coming back to H&S § 11370.1, the Court held that the potentially “deadly combination” of illegal drugs and firearms “is precisely what the Legislature intended to address” when it enacted this section, and it does not violate the Second Amendment to do so.   For these reasons, defendant’s challenge to the constitutionality of section 11370.1, based upon Second Amendment grounds, was denied.

I briefed this case because it includes a lot of important prior case decisions on the Second Amendment’s “right to bear arms,” and its rationale in upholding statutes which, on their face, might otherwise be interpreted to be unconstitutionally overly restrictive.  Of primary importance is the Court’s citation to law making it clear that—while not being limited to a state’s organized “militia”—the Second Amendment’s right to bear arms provision is intended to protect only “responsible, law-abiding” persons.  It’s not usually difficult to determine who is, or who is not, “law-abiding,’ depending upon how you interpret this term.  Typically, you only need to check the person’s readily available rap sheet.  But how do you quantify (or define) the term “responsible ”  Defendant here, with a prior criminal history and being found in possession of dope and an illegal firearm, certainly can’t be classified as “responsible,” so that was not even an issue here.  Resolution of this issue, therefore, must await another day.