United States v. Potter

630 F.3d 1260, 2011 U.S. App. LEXIS 1564, 2011 WL 223568

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 2011
• Docket: 09-30266
• Status: Published

Opinion

OPINION

PER CURIAM:

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. Review ing de novo, United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.), cert. denied, — U.S.-, 131 S.Ct. 294, 178 L.Ed.2d 193 (2010), we affirm. 1

In District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held that the right to bear arms is a personal right, rather than a collective or State right, and that the District of Columbia’s complete ban on firearms in the home violated the Second Amendment. Defendant argues that, because he has a personal right to bear arms in his home, § 924(c)(1)(A) is unconstitutional. We disagree.

Both implicitly and explicitly, the Court 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.

Id. at 626-27, 128 S.Ct. 2783.

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, — U.S. -, 130 S.Ct. 3020, 3044, 177 L.Ed.2d 894 (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, — U.S. ---, 130 S.Ct. 147, 175 L.Ed.2d 95 (2009); see also Vongxay, 594 F.3d at 1118 (holding that 18 U.S.C. § 922(g)(1), which criminalizes the possession of firearms by certain felons, is constitutional).

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. See also United States v. Morsette, 622 F.3d 1200, 1200-01 (9th Cir.2010) (per curiam) (holding that Heller and McDonald did not require alteration of a jury instruction concerning self-defense in a criminal trial).

AFFIRMED.

1 . In an unpublished disposition filed concurrently with this opinion, we reject Defendant's other arguments.