In a ruling issued today, the Eighth Circuit affirmed Baxter’s conviction for possessing a firearm while being an unlawful user of drugs under 18 U.S.C. § 922(g)(3). The Supreme Court’s recent decision in U.S. v. Hemani held that being an unlawful drug user—particularly when the drug is marijuana—does not automatically strip away a person’s Second Amendment rights, and as a result certain applications of § 922(g)(3) can be unconstitutional. However, Hemani did not settle which other applications could still be constitutional, leaving room for further questions.
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.
Citing that language, the Eighth Circuit determined that Hemani did not resolve the case. It further concluded that Baxter’s conviction aligned with the Second Amendment. The court began with the factual context of the incident:
On May 21, 2023, members of two gangs—Strap and C-Block—clashed in downtown Des Moines, Iowa. Baxter, affiliated with the Strap gang, took part in the street fight. When law enforcement attempted to disperse the melee, the combatants scattered, only to resume fighting about thirty minutes later. Officers again moved in, and Baxter and other Strap members pursued the C-Block group. During the pursuit, a bystander informed the officers that Baxter was in possession of a gun.
The officers confronted Baxter and asked what was in his pocket. He replied, “nothing,” and fled. He was soon apprehended. A search revealed a loaded pistol and a baggie containing marijuana on his person. The officers subsequently sought a warrant to test Baxter’s urine for controlled substances; the test confirmed the presence of THC or marijuana metabolites.
From the legal analysis, written by Judge Bobby Shepherd and joined by Judge James Loken, the court explained Baxter’s challenge to the district court’s denial of his motion to dismiss, arguing that applying § 922(g)(3) to him violated his Second Amendment right to keep and bear arms. The court noted that:
We have held that a defendant falls within the statute’s reach if he “was actively engaged in the use of a controlled substance during the time he possessed firearms.” Baxter does not dispute that he was using marijuana at the time he possessed his Taurus .40-caliber pistol.
The Government bears the burden of showing that § 922(g)(3), as applied to Baxter, aligns with this nation’s historical tradition of firearm regulation. Although we had not previously ruled on this precise question, we agree with the district court that the appropriate standard for this historical inquiry is a preponderance of the evidence.
We have held that § 922(g)(3) can be consistent with the Second Amendment when the drug user’s conduct resembles actions prohibited by early laws aimed at preventing the use of arms to terrify the public. We explained that Founding-era statutes permitted imprisonment and the forfeiture of arms when someone used a firearm offensively to threaten others.
To decide whether Baxter’s conduct is sufficiently similar to the behavior forbidden by those Terror of the People laws, we ask whether Baxter’s marijuana use would or did cause him to threaten or pose a credible risk to the safety of others with a firearm. The answer is clearly affirmative. Baxter began using marijuana at age thirteen, used it regularly, and a urine sample after his arrest showed marijuana metabolites.
During the evidentiary hearing, toxicology expert Dr. Huestis testified to a strong link between chronic cannabis use and aggression and violence, and he noted that withdrawal effects—such as irritability and aggression—can persist for several days after last use. Baxter’s conduct on the night of his arrest reflected this pattern: he acted aggressively and combatively toward both law enforcement and civilians. Baxter, along with fellow gang members, engaged in two confrontations with a rival gang while displaying or indicating he possessed a firearm. A bystander reported to the police his belief that Baxter had a firearm, and Baxter fled when asked what was in his pocket.
On the basis of this behavior, the district court did not err in concluding by a preponderance of the evidence that Baxter’s actions on the night of the arrest were sufficiently analogous to the prohibited conduct described in Founding-era Terror of the People laws. The court noted that even if Baxter did not openly brandish the weapon, his possession was sufficiently apparent that a bystander notified the police, and Baxter fled when questioned. Consequently, we agree with the district court’s assessment that Baxter “absolutely presented a credible threat to the safety of others” as he “engaged in a sustained public confrontation while acting aggressively with other gang members and while in possession of a loaded firearm.”
The district court explicitly found that Baxter’s marijuana use impaired his judgment on the night of the arrest, leading him to threaten the physical safety of civilians, law enforcement, and his adversaries alike. The record fully supports this finding. Accordingly, we conclude that the district court did not err in denying Baxter’s motion to dismiss because the Government demonstrated that Baxter’s conduct was sufficiently analogous to the behavior prohibited by the Founding-era Terror of the People statutes.
Judge David Stras filed a concurring opinion in the judgment:
The law should not be a game of telephone. Yet our drug-user-in-possession line of cases has drifted, bearing little resemblance to the framework we described initially. The non-causal question in U.S. v. Cooper (8th Cir. 2025) asked whether a defendant’s use of drugs induced terror or posed a credible threat to others with a firearm. Shortly after, the inquiry shifted to whether the drug use “caused” the defendant to induce terror or pose a danger, as seen in U.S. v. Perez (8th Cir. 2025). Perez, however, remanded in light of Cooper, and thus could not be reconciled with that decision. Both outcomes cannot be correct.
Like a telephonic error, a simple addition of the word “caused” has changed the message—perhaps more than anyone anticipated.
Consider a hypothetical where a drug user argues that, regardless of intoxication, he is inherently dangerous with firearms. Suppose the evidence shows he normally uses guns to intimidate others and is so dangerous that drug use barely shifts the balance. Rather than disarming him for terrorizing others, as historical analogues would permit, Perez lends credence to the odd notion that he may keep firearms because the drug use did not cause him to become dangerous. Compare Cooper (which explained that historical laws allowed disarming when terrorizing conduct accompanied possession) with Veasley (which discussed Terror of the People concepts permitting disarmament for using arms to terrorize) and Perez (which requires the court to find that drug use would or did cause the defendant to induce terror).
Fortunately, the rule that prioritizes earlier decisions provides a straightforward remedy. See U.S. v. Johnson (8th Cir. 2012) (holding that when two panel opinions conflict, the earlier ruling governs the later panels’ decision). Given that Ledvina (8th Cir. 2026) and Perez indicated they were following Cooper, why not take them at their word? Perez remanded because the district court and the parties lacked Cooper’s guidance; Ledvina did the same in light of the court’s decisions in Perez and Cooper. If we adopt that approach, the essential question remains whether Baxter—a drug user—truly posed a credible threat to the physical safety of others with a firearm. I would limit the analysis to that consideration and conclude there.
