People v Deroche and the Choice Between Possessing a Firearm in Your Home and Consuming Alcohol

A win for gun advocates and privacy advocates alike was recently decided when the Michigan Court of Appeals addressed an issue of first impression: does the Second Amendment bar the prosecution of an individual for possessing or using a firearm while intoxicated under MCL 750.237, where the individual is in their own home? People v Deroche, published opinion of Michigan Court of Appeals, issued January 29, 2013(Docket 304759). Reportedly, Deroche was intoxicated and inside a home with a gun. But once inside the home, police officers found that Deroche was not in actual possession of the gun. In fact, Deroche was located on the upper level of the home, away from the gun which was located on the first level. Still, he was arrested for the possession of a firearm while intoxicated. The Court of Appeals found that the infringement of Deroche’s Second Amendment rights under these circumstances was unconstitutional. The Court looked mainly to District of Columbia v Heller, 554 US 570 (2008), which provides, in essence, that the Second Amendment grants individuals the right to keep and bear arms for protection. Courts acknowledge, as did the Court of Appeals here, the recent problems with handgun violence in the United States and the apprehension surrounding this issue. But in the end, the Court of Appeals agreed with Heller that the Second Amendment trumps the policy decisions involved with this issue because the rights vested under the Second Amendment are sacred constitutional rights. Of Course, limitations on Second Amendment rights do exist for felons, the mentally ill, etc.

But the big concern in this case is the ban of handguns in the home because of its limiting effect on an individual’s ability to protect their home and family as is expressly authorized in the Second Amendment. The Court did not decide whether MCL 750.237 is constitutional. Instead, it answered two dispositive inquiries: (1) whether MCL 750.237 regulated conduct within the scope of the Second Amendment as it has historically been understood and (2) whether the government can justify, under an intermediate scrutiny standard, the burden placed on Deroche. Again citing Heller, the Court reasoned that Deroche’s conduct in this case was protected by the Second Amendment because he was acting as a law-abiding citizen. Accordingly, he had a right to bear arms in his home as a means of self-defense. Furthermore, while the government’s objective to prevent intoxicated individuals from committing crimes with handguns is important, the infringement on Deroche’s Second Amendment rights was not substantially related to that objective. In the end, the Court stated that Deroche’s possession of the gun when the police entered the home was constructive, rather than actual; and as a practical matter, applying MCL 750.237 to Deroche under the circumstances involved in this case would unreasonably force a person to choose between possessing a firearm in his or her home and consuming alcohol.