Court of Appeals Affirms Second Amendment Rights in Michigan

A new and powerful decision affirming the Second Amendment rights of Michigan citizens has been handed down by the Court of Appeals.  In the case of People v Deroche, ___ Mich App ___ (Docket No. 304759, Decided January 29, 2013), prosecutors attempted to pursue charges against the accused for being intoxicated in his own home, where a firearm was legally owned and possessed.  Judge Brian A. MacKenzie of the 52-1 District Court in Novi dismissed the charges based upon the 2nd Amendment, but the prosecutors attempted to appeal his ruling.
For years, prosecutors have manipulated a well-intended statute that prohibits a drunk from carrying around a firearm.  MCL 750.237(1) states in part that:
(1) An individual shall not carry, have in possession or under control, or use in any manner or discharge a firearm under any of the following circumstances:
(a) The individual is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
(b) The individual has an alcohol content of 0.08 or more grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(c) Because of the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the individual's ability to use a firearm is visibly impaired.
As I have written here previously, “To ‘have in possession or under control’ is very broad. Dangerously broad. . . . Frankly, there have been some serious doubts raised over the validity of the statutory language contained in MCL 750.237(1) in recent years, since arguably this prohibits any gun owner from ever drinking at home. For instance, under the felony firearm provisions, a felon is considered to be in possession and have control of all firearms in a home. Under these broad interpretations, the law may not be constitutional.”
The Court of Appeals has adopted the arguments that I have set forth on this site, holding that the statute is unconstitutional as it applies to a homeowner legally consuming alcohol at home.  As the Court held:
"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. We note that the Legislature, in crafting the concealed pistol license statute, recognized both the concern with an intoxicated person carrying a firearm and that it is unnecessary to prohibit an intoxicated person from merely being in the vicinity of a firearm. Under MCL 28.425k(2), it is an offense for a person to carry a concealed pistol while under the influence of alcohol. But MCL 28.425k(3) provides for the intoxicated person to have the pistol secured in a vehicle in which the person is an occupant without violating the provisions of subsection 2. In other words, the government’s legitimate concern is not that a person who has consumed alcohol is in the vicinity of a firearm, but that he actually has it in his physical possession. 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 full text of the opinion is located here.