Litigation/Nov 11, 2014

When You Pick Up A Drink, It’s Time To Put Down Your Gun

Michigan statute (MCL 750.237) makes it unlawful for a person to possess a firearm while intoxicated. The crime, possession of a firearm while intoxicated (PFWI), is a misdemeanor, unless the person in possession causes serious impairment of body function to someone else, in which case, it becomes a 5-year felony.

In 2013, the Michigan Court of Appeals held that application of this law to someone who was only in “constructive” possession in his home was unconstitutional. People v Deroche, 299 Mich App 301 (2013). In an opinion released in October 2014; however, the Michigan Court of Appeals held that someone intoxicated in his residence in actual possession of a firearm, could be properly prosecuted for PWFI. People v Wilder, Docket No. 316220 (Mich App Oct 28, 2014).

In Wilder, the police responded to a 911 call arising out of a domestic dispute. Both parties were intoxicated with the complainant blowing at .13 on the PBT and the defendant blowing a higher .167 on the PBT. The jury threw out felonious assault and felony-firearm charges against the defendant, but found that the defendant was guilty of PFWI.

The defendant appealed the conviction to the Michigan Court of Appeals, claiming that the statute was unconstitutional “as applied” to the facts because it infringed his Second Amendment right to keep and bear arms. The Michigan Court of Appeals cited District of Columbia v Heller, 554 US 570 (2008), a recent US Supreme Court case that interpreted Second Amendment rights. While the Michigan Court of Appeals acknowledged Heller’s affirmation of the guaranteed right to possess a firearm in case of a confrontation, the Wilder Court seized on the constitutional limits on firearm possession, citing permissible prohibitions on firearm possession by felons, mentally ill and carrying of firearms in school zones, government buildings and conditions on commercial sale such as background checks.

The Wilder Court engaged in the intermediate scrutiny analysis by weighing the important, substantial or significant governmental interest against the burdens imposed on a person’s Second Amendment rights. While acknowledging that the possession of a handgun in one’s home is at the “core” of Second Amendment rights, the right to possess a firearm for an unlawful or unjustifiable purpose is not a guaranteed right. Upholding the lower court decision, the Wilder Court stated, “the extreme danger posed by a drunken person with a gun is real and cannot be over emphasized.”

Some gun rights advocates may find some of the language in the opinion to be troubling. Others will feel some relief that PFWI will be applied against a drunk in actual possession of a firearm. The old adage “don’t drink and drive” applies to firearms. The message is “don’t drink and carry.”

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