Can Being Drunk in Your Home, Where You Have a Gun Stored, Be a Crime?

No, says the Michigan Court of Appeals in People v. DeRoche (Mich. Ct. App. Jan. 30, 2013) (citing the Second Amendment and that noted Second Amendment precedent, People v. Yanna):

Two Novi police officers were dispatched to a call regarding a verbal altercation. Upon arrival at the scene, they were informed by a man identified as James Hamlin (a friend of defendant) that defendant had run off into the woods, that there had been an argument and that defendant had been drinking. The officers searched the area for defendant to do a “welfare check,” but were unable to locate him and they ended their search.

Approximately two hours later, one of the officers, Officer Shea, along with other officers, was dispatched to a disturbance call at a home. Hamlin was again present, outside the home, and informed the officers that defendant was inside the house with a gun. But he also told Officer Shea that he could see defendant in the house, but did not see a gun.

The officers approached the house and spoke with defendant’s mother-in-law at the door. The mother-in-law stated that defendant no longer had a gun and that she had taken it and hidden it in the house. She let the officers in, showed them the gun which she had hidden in the bottom of a garbage can in the laundry room with the clip found next to the gun….

The district court concluded that, while there was evidence that defendant was intoxicated based upon a blood alcohol test, no evidence was introduced to show that defendant was in actual physical possession of the gun. The district court dismissed the charge, primarily relying on the Second Amendment argument….

While preventing intoxicated individuals from committing crimes involving handguns is an important government objective, the infringement on defendant’s right in the instant case was not substantially related to that objective. We initially note that, at the time of the officers’ entry into the home, and at the time they were actually able to establish the level of defendant’s intoxication, defendant’s possession was constructive rather than actual. Thus, to allow application of this statute to defendant under these circumstances, we would in essence be forcing a person to choose between possessing a firearm in his home and consuming alcohol. But to force such a choice is unreasonable. As the facts illustrate, there was no sign of unlawful behavior or any perceived threat that a crime involving a handgun would be committed….

In conclusion, the government cannot justify infringing on defendant’s Second Amendment right to possess a handgun in his home simply because defendant was intoxicated in the general vicinity of the firearm. Accordingly, the district court did not err in finding that MCL 750.237, as applied to defendant, was unconstitutional.

The result sounds right to me, though for reasons I gave in my Implementing the Right to Keep and Bear Arms in Self-Defense article I think intermediate (or strict) scrutiny is more a distraction than a help in such cases. Thanks to the SBM [State Bar of Michigan] Blog and Jason C. Miller for the pointer.

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