“Unlawful User” Redefined: Possession-Based Drug Use as a Firearm Disability under 18 U.S.C. § 922(g)(3)
Commentary on United States v. Davey, 92 F.4th ___ (10th Cir. 2025)

Introduction

United States v. Davey is the Tenth Circuit’s first precedential, text-driven analysis of the phrase “unlawful user” in 18 U.S.C. § 922(g)(3), the federal statute that bars certain drug users from possessing firearms. The decision arises out of a Kansas prosecution in which Kyle Davey, an admitted daily heroin user, challenged the government’s authority to classify him as an “unlawful user” because—so he argued—neither federal nor Kansas law expressly criminalises use (as opposed to possession) of heroin. The panel (Judges Matheson, Bacharach and McHugh, J. authoring) unanimously rejected that position and affirmed Davey’s conviction.

At stake was not merely Davey’s individual fate but a doctrinal gap that has troubled lower courts since Congress first drafted § 922(g)(3) in 1968 without defining its central term. Davey now establishes a clear rule: when a Schedule I substance (such as heroin) is involved, “use” is inherently “unlawful” because the user must necessarily possess the drug in violation of 21 U.S.C. § 844(a), which criminalises simple possession absent lawful authorisation. The court further harmonised prior supervised-release jurisprudence equating use with possession, endorsed the “temporal nexus” gloss, and aligned itself with sister circuits that have largely—but imprecisely—reached the same conclusion.

Summary of the Judgment

• The panel affirmed Davey’s conviction under § 922(g)(3) after a de novo review of statutory interpretation.
• Applying “ordinary meaning” principles, the court held that the adjective “unlawful” modifies “user,” which in turn is defined by reference to the legality of the substance being used. If the substance has no lawful use for laypersons (e.g., Schedule I heroin) then any use is necessarily unlawful.
• Because heroin use requires prior possession—and possession is expressly prohibited by § 844(a)—Davey’s daily heroin use brought him squarely within § 922(g)(3).
• The panel rejected surplusage, rule-of-lenity, and cross-reference arguments and relied on Tenth Circuit supervised-release cases (Rockwell, Hammonds) to equate use with possession.
• Davey’s broader constitutional objections (Second Amendment, vagueness, Commerce Clause) were deemed waived for failure to brief them on appeal.

Analytical Commentary

A. Precedents Cited and Their Influence

1. United States v. Bennett, 329 F.3d 769 (10th Cir. 2003)
   First Tenth Circuit decision labelling a habitual marijuana/meth user an “unlawful user.” Davey clarifies Bennett’s implicit assumption (that use = unlawful) by supplying the textual analysis Bennett omitted.
2. United States v. Rockwell, 984 F.2d 1112 (10th Cir. 1993) & United States v. Hammonds, 370 F.3d 1032 (10th Cir. 2004)
   Supervised-release revocation cases where the court held “[t]here can be no more intimate form of possession than use.” Davey imports this reasoning to the gun-control context.
3. Gonzales v. Raich, 545 U.S. 1 (2005)
   Provides the tripartite classification rationale of the Controlled Substances Act (CSA) and reinforces that Schedule I drugs have “no accepted medical use.” Davey leans heavily on Raich for its policy backdrop.
4. United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001)
   Cited to emphasise that use of Schedule I drugs is permitted only for government-approved research, a narrow exception not implicated in Davey.
5. Out-of-Circuit Cases — Ocegueda (9th Cir.), Daniels (5th Cir. 2025), Turnbull (8th Cir.), Burchard (6th Cir.), Yancey (7th Cir.)
   These decisions collectively support the proposition that a user of illegal drugs is an “unlawful user,” though they previously offered little textual explication.

B. Legal Reasoning Deconstructed

1. Textualism & Ordinary Meaning
   The court started with dictionary definitions: “unlawful” = “contrary to law,” “user” = “one who uses drugs.” Because Congress left the term undefined, the ordinary meaning controls.
2. Grammatical Structure
   “Unlawful” functions as an adjective limiting the noun “user.” The court rejected Davey’s contention that the adjective must reference only an external, express prohibition of use; rather, unlawfulness can flow from the status of the substance itself.
3. CSA Integration
   The panel tied § 922(g)(3) to the CSA’s schedule system. Schedule I substances are wholly illegal for laypersons; ergo, their use is per se “contrary to law.” This reading preserves Congress’s classification scheme and avoids the “absurd result” of criminalising legitimate prescription use of Schedules II–V.
4. Inference of Possession from Use
   Drawing on Rockwell/Hammonds, the court reasoned that one cannot use a drug without at some point possessing it, rendering possession statutes (21 U.S.C. § 844(a)) dispositive even though not cross-referenced.
5. Statutory Context and Surplusage
   Far from being superfluous, “unlawful” distinguishes between:
   • a cancer patient lawfully using oxycodone (Schedule II) pursuant to a prescription—even if daily—and
   • an addict unlawfully injecting heroin (Schedule I).
   Eliminating “unlawful” would erase that distinction, counter to the statute’s design.
6. Rejection of the Rule of Lenity
   Because the text is unambiguous once contextualised, lenity does not apply.

C. Potential Impact on Future Litigation and Policy

• Uniform Test Across Circuits — Davey supplies the rigorous textual justification previously missing, likely to be persuasive nationwide and diminish circuit splits on definitional issues.
• Narrowed Second-Amendment Defences — By clarifying that a Schedule I user is automatically “unlawful,” the decision constrains Bruen-based challenges premised on the absence of explicit “use” statutes.
• Prosecution Strategy — Prosecutors now have a clear analytical roadmap: establish regular use of any Schedule I drug (or impermissible use of Schedules II–V without prescription) to satisfy § 922(g)(3) without separately proving a “use” offence.
• Public-Health Interface — The ruling underscores the dichotomy between addict-focused treatment models and criminal-law firearm prohibitions. Defence counsel may increasingly explore medical-usage exceptions for Schedules II–V rather than contest the statutory definition.
• State Legislation — States considering decriminalisation of certain drug uses (e.g., psychedelics) must recognise that federal firearm disabilities may still attach so long as CSA scheduling remains unchanged.

Complex Concepts Simplified

Controlled Substances Act (CSA)

Federal law categorising drugs into five schedules. Schedule I = no accepted medical use (e.g., heroin, LSD); Schedules II–V = medical usage permitted under varying controls.

18 U.S.C. § 922(g)(3)

Part of the Gun Control Act. Makes it a federal felony to possess a firearm while being an “unlawful user of or addicted to” any controlled substance.

Temporal Nexus Requirement

Courts require proof that drug use is sufficiently contemporaneous with firearm possession—usually “regular and ongoing” use within a reasonable period.

Rule of Lenity

Canon of construction dictating that genuine ambiguities in criminal statutes be resolved in the defendant’s favour. Inapplicable when the statutory language is clear.

Schedule I Substance

A drug the CSA declares to have a high potential for abuse, no accepted medical use, and no safe use under medical supervision; outright prohibited for the public.

Conclusion

United States v. Davey cements a critical—yet intuitively simple—proposition: if the drug you use is one that the law never permits you to possess, then you are, by definition, an “unlawful user” prohibited from possessing firearms. By rooting the analysis in ordinary meaning, the CSA’s architecture, and long-standing possession precedents, the Tenth Circuit has supplied a durable doctrinal framework that clarifies § 922(g)(3) for courts, practitioners, and policymakers. Going forward, defendants cannot escape the firearm disability by pointing to the absence of a stand-alone “use” statute; possession-based illegality suffices. Davey therefore closes a loophole, harmonises circuit precedent, and reinforces the interplay between narcotics control and gun regulation in federal law.