The panel said prosecutors needed only a preponderance showing that Keshon Baxter’s firearm possession fit a historical analogue, while a concurrence warned the circuit’s Section 922(g)(3) cases are drifting.
What happened
The Eighth Circuit on Monday affirmed the denial of Keshon Baxter’s motion to dismiss an indictment charging him with being an unlawful drug user in possession of a firearm, holding that the government proved his prosecution fit within a Founding-era tradition of disarming people who used weapons to terrorize others.
The precedential ruling keeps in place Baxter’s 64-month prison sentence and three years of supervised release after a remand that required a fuller record on his Second Amendment as-applied challenge to 18 U.S.C. § 922(g)(3). The panel said Baxter’s indictment was “analogically consistent with firearms regulation at the Founding.”
Writing for a panel that included Judges James B. Loken, Bobby E. Shepherd and David R. Stras, Judge Shepherd said the government did not have to prove beyond a reasonable doubt the facts tying Baxter’s conduct to a historical analogue. The opinion said the historical-tradition issue was not an element of the offense, so due process did not require proof beyond a reasonable doubt.
Baxter had argued that applying Section 922(g)(3) to him violated the Second Amendment, and the panel said drug users are among “the people” protected by the amendment, leaving the historical-analogue question as the dispositive issue. The court focused on the “Terror of the People” analogue rather than deciding whether two other asserted analogues — confinement of the mentally ill and firearms restrictions on habitual drunkards — also supported the prosecution.
The panel said Baxter used marijuana regularly, tested positive for marijuana metabolites after his arrest, and twice joined gang-related altercations while possessing a loaded pistol. The opinion emphasized that a bystander reported Baxter had a gun, officers later found a loaded pistol and marijuana on him, and the district court found marijuana impaired his judgment on the night of the arrest.
The court said the Supreme Court’s recent Hemani decision did not bar Baxter’s prosecution because Hemani did not address individualized proof that a defendant’s drug use made him dangerous. Judge Stras concurred only in the judgment, saying the circuit’s cases had become a “game of telephone” after later panels added a causation requirement he said was not in Cooper.