United States v. Stennerson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1439

D.C. No.

Plaintiff - Appellee,

1:22-cr-00139-

SPW-1

v.

JAREN MICHAEL STENNERSON, OPINION

Defendant - Appellant.

Appeal from the United States District Court

for the District of Montana

Susan P. Watters, District Judge, Presiding

Argued and Submitted September 24, 2024

San Francisco, California

Filed September 9, 2025

Before: Johnnie B. Rawlinson, Danielle J. Forrest, and

Jennifer Sung, Circuit Judges.

Opinion by Judge Forrest

2 UNITED STATES OF AMERICA V. STENNERSON

SUMMARY*

Criminal Law / Second Amendment

The panel affirmed the district court’s denial of a motion

to dismiss an indictment charging Jaren Michael Stennerson

with being an unlawful drug user in possession of a firearm

in violation of 18 U.S.C. § 922(g)(3) and illegally receiving

a firearm while under felony indictment in violation of 18

U.S.C. § 922(n).

Stennerson argued that §§ 922(g)(3) and 922(n) are

facially unconstitutional under the Second Amendment and

that § 922(g)(3) is unconstitutionally vague as applied to

him. The panel held that §§ 922(g)(3) and 922(n) are facially

constitutional under the analysis established in N.Y. State

Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 24 (2022), and

United States v. Rahimi, 602 U.S. 680, 693 (2024), because

there are circumstances in which they can be applied that are

consistent with our nation’s history and tradition of firearms

regulation. The panel also held that § 922(g)(3) is not

unconstitutionally vague as applied to Stennerson because

he was an admitted daily user of methamphetamine when he

was charged with unlawful possession of a firearm.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES OF AMERICA V. STENNERSON 3

COUNSEL

Timothy A. Tatarka (argued) and Julie Patten, Assistant

United States Attorneys; Jesse A. Laslovich, United States

Attorney; Office of the United States Attorney, United States

Department of Justice, Billings, Montana; Suzanne Miles,

Office of the United States Attorney, United States

Department of Justice, Portland, Oregon; for Plaintiff-

Appellee.

Steven C. Babcock (argued) and Gillian E. Gosch, Assistant

Federal Public Defenders; Rachel Julagay, Federal

Defender; Federal Defenders of Montana, Billings,

Montana; for Defendant-Appellant.

OPINION

FORREST, Circuit Judge:

Jaren Michael Stennerson was indicted for being an

unlawful drug user in possession of a firearm in violation of

18 U.S.C. § 922(g)(3) and illegally receiving a firearm while

under felony indictment in violation of 18 U.S.C. § 922(n).

He argues that these two subsections of § 922 are facially

unconstitutional under the Second Amendment and that

§ 922(g)(3) is unconstitutionally vague as applied to him.

The district court denied Stennerson’s motion to dismiss his

indictment on these grounds, and we affirm. Sections

922(g)(3) and (n) are facially constitutional under the

analysis established in N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 24 (2022), and United States v. Rahimi,

602 U.S. 680, 693 (2024), because there are circumstances

in which they can be applied that are consistent with our

4 UNITED STATES OF AMERICA V. STENNERSON

nation’s history and tradition of firearms regulation.

Additionally, § 922(g)(3) is not unconstitutionally vague as

applied to Stennerson because he was an admitted daily user

of methamphetamine when he was charged with unlawful

possession of a firearm.

BACKGROUND

Stennerson was arrested in August 2019 in relation to a

burglary. Officers found methamphetamine and syringes in

his possession. Stennerson stated that he had the syringes

because he was addicted to methamphetamine. In addition to

burglary, Stennerson was charged in Montana state court

with criminal possession of dangerous drugs, which is a

felony. His pretrial release conditions prohibited him from

possessing firearms.

Two and a half years later, in March 2022, Stennerson’s

state charges were still pending, and officers detained him

and seized a firearm that was previously reported stolen.

Following his arrest, he admitted that he used a “shot” of

methamphetamine daily. Stennerson was later indicted on

the two federal charges at issue here: (1) possessing a

firearm as an unlawful drug user, 18 U.S.C. § 922(g)(3), and

(2) illegal receipt of a firearm by a person under indictment,

18 U.S.C. § 922(n).

Stennerson moved to dismiss his federal indictment,

arguing that § 922(g)(3) and § 922(n) both facially violate

the Second Amendment and that § 922(g)(3) is

unconstitutionally vague as applied to him. The district court

denied Stennerson’s motion.

On the facial challenges, the district court concluded that

our prior decisions in United States v. Vongxay, 594 F.3d

1111 (9th Cir. 2010), and United States v. Dugan, 657 F.3d

UNITED STATES OF AMERICA V. STENNERSON 5

998 (9th Cir. 2011), which upheld §§ 922(g)(1) and (g)(3),

respectively, were not “clearly irreconcilable” with Bruen.

The district court reasoned that these decisions relied on the

Supreme Court’s statement in District of Columbia v. Heller

that it was not “cast[ing] doubt on longstanding prohibitions

on the possession of firearms by felons and the mentally ill,”

554 U.S. 570, 626 (2008), and that Bruen did not disrupt that

aspect of Heller. The district court also concluded that

§ 922(g)(3) and § 922(n) are consistent with our nation’s

long-standing practice of “disarming the unvirtuous citizens

(i.e. criminals).” Vongxay, 594 F.3d at 1118 (citation

omitted).

The district court also rejected Stennerson’s vagueness

challenge to § 922(g)(3). It concluded Stennerson had not

shown that he lacked sufficient notice that his conduct

violated the statute where he had a pending state charge for

drug possession and admitted to using methamphetamine

daily.

After the district court denied his motion to dismiss,

Stennerson entered a conditional plea that preserved his right

to appeal the ruling on his motion to dismiss. Stennerson

timely appealed after he was sentenced and judgment was

entered.

DISCUSSION

We review de novo the denial of a motion to dismiss an

indictment that challenges the constitutionality of the statute

under which the defendant was charged. United States v.

Howald, 104 F.4th 732, 736 (9th Cir. 2024), cert. denied,

145 S. Ct. 781 (2024). We also review de novo as-applied

challenges asserting that the charging statute is

unconstitutionally vague. United States v. Hudson, 986 F.3d

1206, 1210 (9th Cir. 2021).

6 UNITED STATES OF AMERICA V. STENNERSON

I. Section 922(g)(3)

As relevant here, § 922(g)(3) prohibits persons who are

unlawful users of, or who are addicted to, a controlled

substance from “receiv[ing] any firearm or ammunition

which has been shipped or transported in interstate or foreign

commerce.” We address in turn Stennerson’s challenges that

this statute is facially unconstitutional and unconstitutionally

vague as applied to him because he lacked sufficient notice

that his conduct violated the statute.1

A. Facial Challenge

Challenging a statute as facially unconstitutional is the

“‘most difficult challenge to mount successfully,’ because it

requires a defendant to ‘establish that no set of

circumstances exists under which the [law] would be valid.’”

Rahimi, 602 U.S. at 693 (quoting United States v. Salerno,

481 U.S. 739, 745 (1987)). “[T]he Government need only

demonstrate that [the law] is constitutional in some of its

applications” to prevail. Id.

Our analysis of the Second Amendment is rooted in the

constitutional text and in our nation’s history and tradition

1

At oral argument, Stennerson’s counsel asserted that Stennerson

separately challenges the constitutionality of § 922(g)(3) as applied to

the facts of his case. But counsel could not identify any citation to the

record establishing that this as-applied challenge was presented to the

district court or where this issue was addressed in Stennerson’s Opening

Brief on appeal. Rather, counsel cited to materials addressing the

vagueness challenge and suggested that an as-applied challenge was

preserved because Stennerson briefed the facts of his case. On this

record, we conclude Stennerson has forfeited an as-applied challenge to

§ 922(g)(3) separate from his vagueness challenge. See, e.g., Brown v.

Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016)

(“We generally do not consider issues that are not raised in the

appellant’s opening brief.”).

UNITED STATES OF AMERICA V. STENNERSON 7

of firearm regulation. Bruen, 597 U.S. at 24. We start by

analyzing whether “the Second Amendment’s plain text”

covers the regulated conduct at issue. Id. If it does, “the

Constitution presumptively protects that conduct.” Id. This

presumption can be overcome only if “‘historical precedent’

from before, during, and even after the founding evinces a

comparable tradition of regulation.” Id. at 27 (quoting

Heller, 554 U.S. at 631).

1. Constitutional Text

The Second Amendment guarantees that “the right of the

people to keep and bear Arms, shall not be infringed.” U.S.

Const. amend. II. It is well established that the right “to keep

and bear Arms” protects “the right of law-abiding,

responsible citizens to use arms in defense of hearth and

home.” Heller, 554 U.S. at 635. As indicated, § 922(g)(3)

prohibits someone who is “an unlawful user of or addicted

to any controlled substance” from possessing firearms.

Because § 922(g)(3) is a categorical ban on possession of

firearms, there is no question that it implicates the ability “to

keep and bear Arms.” Bruen, 597 U.S. at 32. But we must

also consider whether Stennerson is part of “the people” who

have Second Amendment rights.

In United States v. Perez-Garcia, we noted a “lingering

ambiguity” in Supreme Court precedent about who is

included in “the people” referenced in the Second

Amendment. 96 F.4th 1166, 1178 (9th Cir. 2024). After

considering the “six other provisions of the Constitution that

mention ‘the people,’” the Supreme Court stated in Heller:

“We start . . . with a strong presumption that the Second

Amendment right . . . belongs to all Americans.” 554 U.S. at

580–81. But later in that analysis, the Court stated that

“whatever else [the Second Amendment] leaves to future

8 UNITED STATES OF AMERICA V. STENNERSON

evaluation, it surely elevates above all other interests the

right of law-abiding, responsible citizens to use arms in

defense of hearth and home,” id. at 635 (emphasis added);

see also id. at 644 (Stevens, J., dissenting) (“The Court offers

no way to harmonize its conflicting pronouncements [about

who is included in ‘the people’].”).

In Bruen, the Court similarly announced both that “[t]he

Second Amendment guaranteed to ‘all Americans’ the right

to bear commonly used arms,” 597 U.S. at 70, and that “the

Second and Fourteenth Amendments protect the right of an

ordinary, law-abiding citizen” to possess firearms for self-

defense both inside and outside the home, id. at 8–10; see

also id. at 26. And most recently, in Rahimi, the Court

reiterated that it uses “the term ‘responsible’ to describe the

class of ordinary citizens who undoubtedly enjoy the Second

Amendment right,” but it declined to adopt the rule advanced

by the government that only responsible citizens have

Second Amendment rights. 602 U.S. at 701–02.

We waded into the conversation about who is included

in “the people” who hold Second Amendment rights in

Perez-Garcia. At issue there was a Second Amendment

challenge to a pretrial-release condition prohibiting

possession of firearms. 96 F.4th at 1171. We held that

pretrial releasees “are among ‘the people’ within the

meaning of the Second Amendment’s ‘bare text,’” because

“to allow the government to exclude an entire group of

individuals from ‘the people’ through mere accusation

would be, at minimum, inconsistent with the presumption of

innocence.” Id. at 1180 (citation modified). And more

recently, our en banc court embraced Heller’s presumption

and held that those “who are part of a national community or

who have otherwise developed sufficient connection with

this country to be considered part of that community” are

UNITED STATES OF AMERICA V. STENNERSON 9

part of “the people” who have Second Amendment rights.

United States v. Duarte, 137 F.4th 743, 752 (9th Cir. 2025)

(en banc) (quoting Heller, 554 U.S. at 580).2

This approach accords with that taken by some of our

sister circuits. See United States v. Connelly, 117 F.4th 269,

274 (5th Cir. 2024) (“Marijuana user or not, [defendant] is a

member of our political community and thus has a

presumptive right to bear arms.”); United States v. Goins,

118 F.4th 794, 798 (6th Cir. 2024) (recognizing that “felons

are among ‘the people’ protected by the Second

Amendment”); United States v. Veasley, 98 F.4th 906, 910

(8th Cir. 2024), cert. denied, 145 S. Ct. 304 (2024)

(explaining “drug users ‘are part of “the people” whom the

Second Amendment protects’” (quoting Bruen, 597 U.S. at

31–32)).

Under our precedent, Stennerson clearly is part of our

national community. Thus, the plain text of “the Second

Amendment presumptively protects [his] proposed course of

conduct” of possessing a firearm. Perez-Garcia, 96 F.4th at

1181.

2. History & Tradition

Because the Second Amendment applies, the

Government must overcome the presumption that

Stennerson’s possession of firearms is constitutionally

2

The Government relies on our statement in Vongxay that “most scholars

of the Second Amendment agree that the right to bear arms was

inextricably tied to the concept of a virtuous citizenry.” 594 F.3d at 1118

(citation modified). However, we backed away from that pronouncement

in Duarte, recognizing that there are “conflicting interpretations of

history” about who is included in “the people,” and, as just explained,

adopted Heller’s presumption that all persons who are part of the

national community are included. 137 F.4th at 754.

10 UNITED STATES OF AMERICA V. STENNERSON

protected by establishing that § 922(g)(3)’s restriction on

gun possession by users of illegal drugs is supported by our

“historical tradition of firearm regulation.” Bruen, 597 U.S.

at 24. This inquiry requires “reasoning by analogy.” Id. at

28. We consider whether § 922(g)(3) “is ‘relevantly similar’

to laws that our tradition is understood to permit, ‘apply[ing]

faithfully the balance struck by the founding generation to

modern circumstances.’” Rahimi, 602 U.S. at 692 (alteration

in original) (quoting Bruen, 597 U.S. at 29). “Why and how

the regulation burdens the [Second Amendment] right are

central to this inquiry.” Id. If historical laws “regulated

firearm use to address particular problems, that [is] a strong

indicator that contemporary laws imposing similar

restrictions for similar reasons fall within a permissible

category of regulations.” Id. But “[e]ven when a [modern]

law regulates arms-bearing for a permissible reason, . . . it

may not be compatible with the right if it does so to an extent

beyond what was done at the founding.” Id. And even “when

a [modern law] does not precisely match its historical

precursors, ‘it still may be analogous enough to pass

constitutional muster.’” Id (quoting Bruen, 597 U.S. at 30).

The modern law “need not be a ‘dead ringer’ or a ‘historical

twin.’” Id. (quoting Bruen, 597 U.S. at 30). In assessing

whether a modern law is sufficiently analogous to historical

regulation, “we do not isolate each historical precursor and

ask if it differs from the challenged regulation in some way.”

Perez-Garcia, 96 F.4th at 1191.3

3

The Government argues that we must take a “nuanced approach” to

analyzing the relevant regulatory history here because the problem

arising from modern drug use implicates “unprecedented societal

concerns.” This argument is based on the statement in Bruen that some

“cases implicating unprecedented societal concerns or dramatic

technological changes may require a more nuanced approach.” Bruen,

UNITED STATES OF AMERICA V. STENNERSON 11

In Rahimi, the Supreme Court addressed two sets of

historical laws when addressing the constitutionality of

§ 922(g)(8): surety laws and going-armed laws. 602 U.S. at

695–98. Surety laws empowered a judge to require

individuals “suspected of future misbehavior to post a

bond.” Id. at 695. They “also targeted the misuse of

firearms” by requiring surety bonds for armed individuals.

Id at 696. Similarly, going-armed laws punished individuals

who carried arms to terrify ordinary citizens with forfeiture

of arms and imprisonment. Id. at 697. From this history, the

Supreme Court reasoned that “surety and going armed laws

confirm what common sense suggests: When an individual

poses a clear threat of physical violence to another, the

threatening individual may be disarmed.” Id. at 698.

Similarly, in Perez-Garcia, we recognized that “[w]hile

the [1688–89 English] Bill of Rights condemned the

disarming of ‘good subjects,’ it allowed the disarming of

irresponsible ones.” 96 F.4th at 1187. We also explained that

this Bill of Rights did not “displace the Militia Act of 1662,

which authorized local officials to disarm individuals they

judged ‘dangerous to the Peace of the Kingdom.’” Id.

(citation omitted); see also The Privy Council to Lord

Newport (Jan. 8, 1661), in 4 Transactions of the Shropshire

Archaeological and Natural History Society 156, 156 (1904)

597 U.S. at 27. However, the Supreme Court has not indicated that in

counseling a “nuanced approach” for harder cases it was creating a

different standard from the otherwise applicable “relevantly similar”

analysis. See Rahimi, 602 U.S. at 692 (defining Bruen’s historical-

analogue standard as an inquiry into whether the challenged law is

“‘relatively similar’ to laws that our tradition is understood to permit”

without referencing a “nuanced approach”). And here, we conclude that

whatever is meant by “nuanced approach,” it makes no difference to the

outcome of this case.

12 UNITED STATES OF AMERICA V. STENNERSON

(suggesting disarmament of individuals who “disturbed the

Public peace” was permissible). Use of the Militia Act

provisions allowing search and seizure of weapons from

disaffected persons “continued unabated” after the adoption

of the English Bill of Rights. Diarmuid F. O’Scannlain,

Glorious Revolution to American Revolution: The English

Origin of the Right to Keep and Bear Arms, 95 Notre Dame

L. Rev. 397, 405 (2019). Thus, the English Bill of Rights

permitted disarming those who could not use arms lawfully

and responsibly.

Founding-era laws prohibited intoxicated persons from

possessing or discharging firearms, but not always for the

same reason. For example, a 1655 Virginia law made it

unlawful for a person to “shoot any gunns at drinkeing.”

Acts of Mar. 10, 1655, Act XII, reprinted in 1 The Statutes

At Large: Being A Collection of All the Laws of Virginia

from the First Session of the Legislature in the Year 1619, at

393, 401–02 (William Waller Hening ed., 1823). But

“Virginia passed this statute explicitly as a gunpowder

preservation measure (which was at a premium), and

because ill-timed gunshots could be mistaken as a signal that

Natives were attacking.” Connelly, 117 F.4th at 280; see also

id. n.5 (analyzing the statutory language). Thus, not only was

the why for this statute different than for § 922(g)(3), the how

was also different: the historical regulation “did not ban gun

carry or even possession—it only prevented colonists from

misusing the guns they did have while they were drinking.”

Id.

A 1771 New York law banned citizens from firing guns

during New Year’s celebrations. Act of Feb. 16, 1771, ch.

1501, reprinted in 5 The Colonial Laws of New York from

the Year 1664 to the Revolution 244 (1894) [hereinafter

New York Law of 1771]. This law had “a similar purpose as

UNITED STATES OF AMERICA V. STENNERSON 13

§ 922(g)(3)—preventing the ‘great Damages’ done by those

‘intoxicated with Liquor.’” Connelly, 117 F.4th at 280

(quoting New York Law of 1771, supra, at 244). But how it

regulated was quite different from § 922(g)(3) because it

prevented only use, not possession, of firearms, and for only

three days per year around the New Year’s holiday. See New

York Law of 1771, supra, at 244–45.

The Government also cites laws regulating intoxication

and militia service. For example, a 1746 New Jersey statute

authorized disarming soldiers who appeared for militia

service “disguised in Liquor.” Act of May 8, 1746, ch. 200,

in Acts of the General Assembly of the Province of New

Jersey 139, 140 (Samuel Allinson ed., 1776). Several states

also prohibited the sale of strong liquor near militia-training

locations. See Wolford v. Lopez, 116 F.4th 959, 985 (9th Cir.

2024) (“[A] 1756 Delaware law prohibited the militia from

meeting within half a mile from a tavern and prohibited the

sale of liquor at any militia meeting; and a 1756 Maryland

law prohibited the sale of liquor within five miles of a

training exercise for the militia.”). Additionally, Rhode

Island excluded “common drunkards” from the militia

entirely. An Act to Regulate the Militia, 1844, in Public

Laws of the State of Rhode Island and Providence

Plantations, as Revised by a Committee, and Finally Enacted

by the General Assembly at the Session in January, 1844, at

501, 503 (1844).

After the founding, states and localities continued to

disarm intoxicated individuals. Several states banned “the

carry of firearms while intoxicated,” including “Kansas in

1867, Missouri in 1883, and Wisconsin in 1883.” Wolford,

116 F.4th at 985. In 1886, the Missouri Supreme Court

upheld a ban on carrying arms while intoxicated as a

“reasonable regulation” that prevented the “mischief to be

14 UNITED STATES OF AMERICA V. STENNERSON

apprehended from an intoxicated person going abroad with

fire-arms.” State v. Shelby, 2 S.W. 468, 469 (Mo. 1886). And

other cities and states prohibited possession of a firearm in

locations where alcohol would be sold. See Wolford, 116

F.4th at 987 (New Mexico in 1853, San Antonio, Texas in

1870, and Oklahoma in 1890).

Taken together, our nation’s tradition of firearms

regulation at least supports restricting possession of firearms

by those who are presently intoxicated and, therefore,

hindered in their ability to exercise sound judgment and self-

control. Thus, we hold that § 922(g)(3) is facially

constitutional because in at least these circumstances, the

restriction that it imposes “is consistent with the Nation’s

historical tradition of firearm regulation.”4 Bruen, 597 U.S.

at 24.

We are not alone in reaching this conclusion. Both the

Fifth and Eighth Circuits have held that § 922(g)(3) is

facially constitutional because “our history and tradition of

firearms regulation show that there are indeed some sets of

circumstances where § 922(g)(3) would be valid.” Connelly,

117 F.4th at 282; see Veasley, 98 F.4th at 918 (“[A]t least

some drug users and addicts fall within a class of people who

historically have had limits placed on their right to bear

arms.”); United States v. Cooper, 127 F.4th 1092, 1096 (8th

Cir. 2025) (suggesting that § 922(g)(3) may be

4

Before Bruen, we upheld § 922(g)(3), reasoning in part that “[b]ecause

Congress may constitutionally deprive felons and mentally ill people of

the right to possess and carry weapons, . . . Congress may also prohibit

illegal drug users from possessing firearms.” Dugan, 657 F.3d at 999–

1000. However, we cannot rest on Dugan because we undertook no

historical analysis of these issues, as Bruen and Rahimi now require. But

we nonetheless arrive at the same outcome as relates to this facial

challenge.

UNITED STATES OF AMERICA V. STENNERSON 15

constitutionally applied to marijuana users in at least some

applications). We note that these circuits have also

concluded that § 922(g)(3) may be challenged on an as-

applied basis because its possessory restriction is far broader

than historical analogues. The Fifth Circuit explained that

certain historical regulations “address a comparable

problem—preventing intoxicated individuals from carrying

weapons—but they do not impose a comparable burden on

the right holder.” Connelly, 117 F.4th at 281. Similarly, the

Eighth Circuit stated that “[t]he fact that earlier generations

addressed the societal problem through materially different

means is evidence that disarming all drug users, simply

because of who they are, is inconsistent with the Second

Amendment.” Veasley, 98 F.4th at 912 (citation modified)

(quoting Bruen, 597 U.S. at 26).

We have not addressed whether an as-applied challenge

could succeed against 922(g)(3). In Duarte, which

concerned a conviction under § 922(g)(1) (prohibiting felons

from possessing firearms), we rejected the contention that

the historical record does not support a possessory ban as

applied to all felons, including those convicted for

nonviolent offenses, and we concluded that assurances made

in Heller, Bruen, and Rahimi about certain categories of

restrictions not being called into doubt indicated that there is

“a historical tradition of firearm regulation that supports the

categorical application of § 922(g)(1) to [all] felons.”

Duarte, 137 F.4th at 752. As Stennerson has not brought an

as-applied challenge to § 922(g)(3), we have no occasion to

consider whether such a challenge could succeed, or whether

this statute is also categorically constitutional. We leave that

issue for another day.

16 UNITED STATES OF AMERICA V. STENNERSON

B. Vagueness Challenge

Stennerson contends that § 922(g)(3) is also

unconstitutionally vague as applied to him. “A criminal law

is unconstitutionally vague if it fails to ‘define the criminal

offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that

does not encourage arbitrary and discriminatory

enforcement.’” United States v. Lemus, 93 F.4th 1255, 1261

(9th Cir. 2024), cert. denied, 145 S. Ct. 581 (2024) (quoting

Beckles v. United States, 580 U.S. 256, 262 (2017)). “In an

as-applied challenge, a statute is unconstitutionally vague if

it fails to put a defendant on notice that his conduct was

criminal.” United States v. Harris, 705 F.3d 929, 932 (9th

Cir. 2013) (citation modified) (citation omitted). Statutory

vagueness challenges that “do not involve First Amendment

freedoms must be examined in the light of the facts of the

case at hand.” Id. (citation omitted).

Section 922(g)(3) provides:

It shall be unlawful for any person . . . who

is an unlawful user of or addicted to any

controlled substance (as defined in section

102 of the Controlled Substances Act) . . . to

ship or transport in interstate or foreign

commerce, or possess in or affecting

commerce, any firearm or ammunition; or to

receive any firearm or ammunition which has

been shipped or transported in interstate or

foreign commerce.

18 U.S.C. § 922(g)(3) (emphases added). There is no dispute

that Stennerson received a firearm. It is also undisputed that

he admitted to being an addict who used “a shot a day” of

UNITED STATES OF AMERICA V. STENNERSON 17

methamphetamine at the time of his arrest. 5 The only

question is whether § 922(g)(3) provided sufficient notice

that the “manner and extent” of Stennerson’s drug use

subjected him to prosecution under § 922(g)(3). United

States v. Purdy, 264 F.3d 809, 812 (9th Cir. 2001).

Our prior decisions in United States v. Ocegueda, 564

F.2d 1363 (9th Cir. 1977), and Purdy are instructive. In

Ocegueda, the defendant was convicted of receiving

firearms while he was an active heroin user. 564 F.2d at

1364. On appeal, he challenged his conviction, arguing that

the “unlawful user” restriction was unconstitutionally vague

as applied to him. Id. at 1364–65. We rejected Ocegueda’s

challenge and explained, “a common sense meaning of the

phrase clearly includes [Ocegueda’s] conduct” because

heroin use “by laymen is not permissible in any

circumstance” and the evidence established that he was

using heroin “before, during and after the period of the gun

purchases.” Id. at 1365–66. We also concluded “the statutory

history” showed that § 922(g)(3) was enacted “to keep

firearms out of the hands of those not legally entitled to

possess them because of . . . [their] criminal background.”

Id. at 1365. Ocegueda’s prolonged and unlawful use of

heroin therefore fell within the conduct covered under

§ 922(g)(3). Id. at 1366.

Relying on Ocegueda, we likewise rejected a vagueness

challenge to § 922(g)(3) in Purdy. In that case, the defendant

“had used illegal drugs—cocaine, methamphetamine, and

marijuana—on a regular basis for years, and . . . had smoked

5

Methamphetamine is defined as a controlled substance under federal

law. See 21 U.S.C. §§ 802, 812, scheds. II, III.

18 UNITED STATES OF AMERICA V. STENNERSON

methamphetamine and marijuana contemporaneously with

his possession of a firearm.” 264 F.3d at 812.

This case demands the same result. Stennerson’s “drug

use was sufficiently consistent, ‘prolonged,’ and close in

time to his gun possession to put him on notice that he

qualified as an unlawful user of drugs under § 922(g)(3).”

Id. (quoting Ocegueda, 564 F.2d at 1365). Indeed, he

admitted to being an “addict” and using methamphetamine

daily during the relevant period. Again, we are in accord

with our sister circuits in reaching this result. See United

States v. Cook, 970 F.3d 866, 877 (7th Cir. 2020) (noting

“[t]he uniform rejection of as-applied vagueness challenges

to section 922(g)(3)” and concluding that “simply because it

may sometimes be difficult to determine if an individual’s

drug use meets section 922(g)(3)’s standard for liability does

not signify that the statute is impermissibly vague”

(emphasis added)); United States v. Morales-Lopez, 92 F.4th

936, 945–46 (10th Cir. 2024) (rejecting vagueness challenge

because a person of “ordinary intelligence” would have

understood the defendant’s conduct violated § 922(g)(3)

where the evidence allowed a reasonable inference to be

drawn that the defendant’s drug use was “regular and

ongoing”); United States v. Hasson, 26 F.4th 610, 616–21

(4th Cir. 2022) (holding that section 922(g)(3) was not

impermissibly vague as applied to a defendant whose alleged

conduct fell squarely within statute’s confines).

Stennerson argues that courts using different descriptors

to explain what qualifies someone as an “unlawful user” is

proof that the statute is impermissibly vague. Compare, e.g.,

Purdy, 264 F.3d at 813 (holding the government must prove

the defendant “took drugs with regularity, over an extended

period of time” (emphasis added)) with United States v.

Edmonds, 348 F.3d 950, 953 (11th Cir. 2003) (per curiam)

UNITED STATES OF AMERICA V. STENNERSON 19

(holding a defendant’s drug use must be “ongoing”).

Similarly, he argues that “courts have invented various

temporal nexus requirements between illicit drug use and the

possession of a firearm to avoid vagueness problems.”

Compare, e.g., Purdy, 264 F.3d at 813 (requiring

contemporaneous use with firearm possession) with Hasson,

26 F.4th at 616 (requiring close in time use with firearm

possession). We are unpersuaded. That different courts use

synonyms to define the conduct that renders someone an

unlawful drug user in possession of a firearm does not mean

that they have adopted different standards.

We are also unconvinced by Stennerson’s assertion that

“[t]he facts of this case are markedly different from others

where[] [as-applied] challenges were rejected.” Although

Stennerson cites cases where defendants used controlled

substances for a longer period or possessed more firearms,

that does not undermine our conclusion that Stennerson’s

conduct here falls within the range of conduct covered under

§ 922(g)(3).6

6

To the extent Stennerson argues that § 922(g)(3) is unconstitutionally

vague on its face, this contention necessarily fails due to our conclusion

that § 922(g)(3) is not unconstitutionally vague as applied in this case.

See United States v. Hudson, 986 F.3d 1206, 1214 n.3 (9th Cir. 2021)

(“Absent exceptional circumstances, a defendant who cannot sustain an

as-applied vagueness challenge to a statute cannot be the one to make a

facial vagueness challenge to the statute.”) (internal quotations and

citation omitted). Stennerson’s argument that Johnson v. United States,

576 U.S. 591, 597–98 (2015), established that a facial vagueness can

survive even if there are as-applied circumstances that do raise

vagueness concerns is misplaced. See United States v. Hasson, 26 F.4th

610, 620 (4th Cir. 2022) (holding Johnson “did not silently overrule

[Supreme Court] precedents prohibiting vagueness challenges by those

whose conduct a statute clearly prohibits.”); United States v. Cook, 970

F.3d 866, 877 (7th Cir. 2020) (“Johnson did not alter the general rule

20 UNITED STATES OF AMERICA V. STENNERSON

II. 18 U.S.C. § 922(n)

Finally, Stennerson argues that the second statute under

which he was charged—18 U.S.C. § 922(n)—is facially

unconstitutional.

A. Constitutional Text

Section 922(n) makes it “unlawful for any person who is

under indictment for a crime punishable by imprisonment for

a term exceeding one year to . . . receive any firearm or

ammunition.” 18 U.S.C. § 922(n). As previously discussed,

Stennerson is part of “the people” who have Second

Amendment rights, and the prohibition on receipt of a

firearm while under indictment meaningfully constrains his

right to keep and bear arms. B&L Prods., Inc. v. Newsom,

104 F.4th 108, 118 (9th Cir. 2024), cert. denied, 145 S. Ct.

1958 (2025); see also Nguyen v. Bonta, 140 F.4th 1237, 1241

(9th Cir. 2025) (“[W]e have consistently held that the

Second Amendment protects ancillary rights necessary to

the realization of the core right to possess a firearm for self-

defense.” (citation modified)). Thus, the plain text of the

Second Amendment applies, and the Government must

“justify its regulation” by showing that disarming persons

who are under felony indictment is consistent with the

nation’s “historical tradition of firearm regulation.” Rahimi,

602 U.S. at 691 (quoting Bruen, 597 U.S. at 17, 24).

that a defendant whose conduct is clearly prohibited by a statute cannot

be the one to make a facial vagueness challenge.”). Johnson involved

interpretation of the Armed Career Criminal Act’s residual clause, which

required us to look not at the actual conduct underlying the defendant’s

prior conviction but rather at the “archetypal version of the offense.”

Cook, 970 F.3d at 876 (citing Johnson, 576 U.S. at 597–98). By contrast,

here the vagueness challenge is “much more routine” and concerns

Stennerson’s actual conduct. Id.

UNITED STATES OF AMERICA V. STENNERSON 21

B. History & Tradition

The Government argues that the historical analysis for

§ 922(n) is “considerably simplified” by Perez-Garcia

because prohibiting a person under felony indictment from

receiving firearms is analogous to disarming pretrial

detainees. In Perez-Garcia, we analyzed the Bail Reform

Act, which “authorizes federal courts to release defendants

awaiting trial subject to specific conditions that ‘protect the

community from the risk of crimes [they] might commit

while on bail.’” 96 F.4th at 1175 (alteration in original)

(citation omitted). Some conditions burden constitutional

rights “to personal association, travel, speech directed at a

victim or witness, or, at issue here, the possession of

firearms.” Id. (citing 18 U.S.C. § 3142 (c)(1)(B)(i)-(xiv)). In

Bruen’s terms, the “why” for the Bail Reform Act’s

restrictions is to “reasonably assure the appearance of the

person as required and the safety of any other person and the

community.” Id. at 1182 (quoting 18 U.S.C. § 3142

(c)(1)(B)). And “how” it reaches its safety goals is “a

complete, albeit temporary and individually tailored,

prohibition on the right to bear arms.” Id. at 1181–82.

In upholding the Bail Reform Act’s restrictions, we

concluded that three “separate but related founding era

practices” support temporarily disarming defendants facing

serious criminal charges: “(1) most serious crimes were

eligible for capital charges; (2) the government had the

power to detain, and usually did detain, defendants indicted

on capital charges; and (3) once detained, criminal

defendants were completely disarmed.” Id. at 1182. Even

though pretrial detention was not uniformly imposed,

“pretrial release was far rarer in the founding era than it is

today because the founding generation generally did not

allow defendants facing capital charges to be released

22 UNITED STATES OF AMERICA V. STENNERSON

pending trial, and most serious criminal acts and felonies

constituted capital offenses.” Id. at 1183 (emphasis added).

Indeed, “[a]t the time of the Second Amendment’s

ratification, for example, nonviolent crimes such as forgery

and horse theft were capital offenses.” Id. (citing Medina v.

Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019)).

We also held that “our nation’s history of barring people

or groups deemed dangerous or unlikely to respect the

sovereign’s authority from possessing firearms” was “a

separate ground” for upholding the Bail Reform Act. Id. at

1186. We reasoned that many laws, from the English Bill of

Rights to the Militia Act of 1662 to colonial era statutes

disarming Catholics and other groups perceived to be

disloyal, showed a history and tradition of the “legislative

authority to disarm groups or individuals whose possession

of firearms would pose an unusual danger, beyond the

ordinary citizen.” Id. at 1186–89; see also Duarte, 137 F.4th

at 759–61.

If our regulatory history and tradition support banning

possession of firearms while a defendant awaits trial, we are

hard pressed to see how they do not also support prohibiting

those under felony indictment from receiving firearms. The

“why” of both restrictions (and historical pretrial practices

for serious offenses) is to further public safety and protect

the integrity of the criminal process between indictment and

trial. See United States v. Gore, 118 F.4th 808, 814–15 (6th

Cir. 2024). And “how” these goals are achieved is at least

partly less burdensome under § 922(n) because it restricts

only receipt of firearms and does not ban possession of

previously acquired firearms (or impose physical detention).

Id.; Veasley, 98 F.4th at 915.

UNITED STATES OF AMERICA V. STENNERSON 23

Admittedly, Perez-Garcia does not definitively resolve

whether § 922(n) imposes a comparable burden as the

relevant historical laws. The Bail Reform Act requires

individualized assessment of the likelihood of

dangerousness. See Perez-Garcia, 96 F.4th at 1171, 1181,

1189–90. But on a facial challenge, this distinction is

immaterial. The history and tradition outlined in Perez-

Garcia supports that legislatures could disarm “groups” of

people without any individualized determination. Id. at

1186, 1189; see also Duarte, 137 F.4th at 759–61 (outlining

similar history and concluding that this tradition “reveals

that legislatures were permitted to categorically disarm those

they deemed dangerous without having to perform ‘an

individualized determination of dangerousness as to each

person in a class of prohibited persons.’” (citation omitted)).

Recently, two other circuits have also upheld § 922(n)

against facial attacks. The Sixth Circuit held that “Section

922(n)’s prohibition is comparable to the founding-era

history of pretrial detention ‘in both why and how it burdens

the Second Amendment right.’” Gore, 118 F.4th at 815

(quoting Rahimi, 602 U.S. at 698). Specifically, that court

explained that both restrictions were imposed to protect

public safety and the criminal process, they applied during

the same time period—from indictment through trial, they

apply only to serious offenders, and § 922(n) imposes a

lesser burden than historical pretrial detention practices. Id.

The court also noted that Rahimi “was careful not to ‘suggest

that the Second Amendment prohibits the enactment of laws

banning the possession of guns by categories of persons

thought by a legislature to present a special danger of

misuse.’” Id. at 816 (quoting Rahimi, 602 U.S. at 698).

Moreover, in § 922(n), Congress “defined, by their

circumstances, a category of persons who, in its judgment,

24 UNITED STATES OF AMERICA V. STENNERSON

present special risks. And that categorical judgment is

comparable to founding-era approaches to pretrial

detention.” Id.

The Fifth Circuit also held that § 922(n) “‘fits neatly’

within our nation’s historical tradition of protecting the

public from criminal defendants indicted for serious

offenses.” United States v. Quiroz, 125 F.4th 713, 723–24

(5th Cir. 2025) (footnote omitted). That court reasoned that

“the modern purpose of § 922(n) is relevantly similar to the

historical purpose of pretrial detention.” Id. at 718–19 (citing

Perez-Garcia, 96 F.4th at 1184). And it noted “it could be

said that § 922(n) places a lesser burden on Second

Amendment rights” than the relevant historical analogues.

Id. at 719.

Stennerson argues that the historical record does not

support § 922(n)’s restriction because it applies to many

more offenses than triggered pretrial detention at the

founding. There is no question that what constitutes a felony

under modern law is much broader than what constituted a

serious offense triggering pretrial detention at the founding.

See Tennessee v. Garner, 471 U.S. 1, 14 (1985) (“Many

crimes classified as misdemeanors, or nonexistent, at

common law are now felonies.”). But Stennerson brought a

facial challenge to § 922(n), and therefore he must “establish

that no set of circumstances exists under which the [statute]

would be valid.” Rahimi, 602 U.S. at 693 (citation omitted).

This he cannot do. Given our decision in Perez-Garcia that

the historical record supports complete pretrial disarmament,

§ 922(n)’s lesser burden on Second Amendment rights is at

least constitutional as applied to those indicted for offenses

that triggered pretrial detention at the founding. See United

States v. Holden, 70 F.4th 1015, 1018 (7th Cir. 2023), cert.

denied, 144 S. Ct. 400 (2023) (“Even if some applications of

UNITED STATES OF AMERICA V. STENNERSON 25

§ 922(n) would flunk the constitutional standard (say,

someone under indictment for an antitrust offense), others

might illustrate the sort of person who cannot be trusted with

guns.”). “The Government need not go further and dig up an

18th century law under which [Stennerson], specifically,

would have been disarmed while awaiting trial for crimes

like unlawful possession” of methamphetamine at this point

in the litigation. Perez-Garcia, 96 F.4th at 1185–86.

AFFIRMED.