PER CURIAM.

This case presents a question of first impression, namely whether the Second Amendment of the United States Constitution precludes a prosecution for possession or use of a firearm by a person under the influence of alcoholic liquor, MCL 750.237, when the prosecution's theory is one of constructive possession in the defendant's own home. We conclude that it does.

Two Novi police officers were dispatched to a call involving a verbal altercation. When they arrived 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 they were unable to locate him and ended their search.

Approximately two hours later, one of those 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 and showed them the gun that she had hidden in the bottom of a garbage can in the laundry room; the clip was found next to the gun. Officer Shea indicated that he wished to speak with defendant and was informed that defendant was upstairs.

The officers made their first contact with defendant while they were standing at the bottom of the stairs and defendant stood at the top of the stairs. Defendant initially refused to come down, but eventually complied with the officers' request. They stepped outside onto the front porch. Defendant was arrested for possession of a firearm while intoxicated.

Defendant moved in the district court both to suppress evidence on the basis of an unlawful entry into his home and to dismiss the charge under the Second Amendment. The district court conducted an evidentiary hearing, concluding that while there was evidence based on a blood alcohol test that defendant was intoxicated, 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. But it also concluded that the officers' continued presence in the home after securing the weapon was unlawful.

The prosecution appealed the dismissal in the circuit court. The circuit court declined to address the Second Amendment issue, but agreed with the district court that there had been a Fourth Amendment violation and, therefore, concluded that the district court had properly dismissed the charge. The prosecution now appeals and defendant cross-appeals by leave granted.

We take the opposite approach to that of the circuit court. We decline to address the search question and instead affirm the district court on the basis of the Second Amendment.

Defendant argues that MCL 750.237, as applied to defendant, is unconstitutional because it violates his federal and state right to bear arms in his home for purposes of self-defense. We agree. We review de novo issues of constitutional construction. People v. Yanna, 297 Mich.App. 137, 142, 824 N.W.2d 241 (2012). We presume statutes to be constitutional unless their unconstitutionality is clearly apparent and, if possible, the statute is to be construed as constitutional. Id. at 146, 824 N.W.2d 241.

Both the United States Constitution and the Michigan Constitution "grant individuals a right to keep and bear arms for self-defense." Id. at 142, 824 N.W.2d 241. The Second Amendment of the United States Constitution provides, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const., Am. II.1 Article 1, § 6 of the 1963 Michigan Constitution, which is Michigan's equivalent to the Second Amendment, states, "Every person has a right to keep and bear arms for the defense of himself and the state." "The Second Amendment is fully applicable to the states through the Fourteenth Amendment." Yanna, 297 Mich.App. at 142, 824 N.W.2d 241; see also McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020, 3050, 177 L.Ed.2d 894 (2010). Therefore, we review this issue within the parameters of the United States Supreme Court's interpretation of the Second Amendment.

The Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation." Dist. of Columbia v. Heller, 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). "At the `core' of the Second Amendment is the right of `law-abiding, responsible citizens to use arms in defense of hearth and home.'" United States v. Barton, 633 F.3d 168, 170 (C.A.3, 2011), quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783. In striking down a statute that banned the possession of handguns in the District of Colombia, the Supreme Court held:

Thus, the Supreme Court concluded that the "ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Id. at 635, 128 S.Ct. 2783.

While acknowledging "the problem of handgun violence in this country," the Supreme Court stressed that the "Constitution leaves ... a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home." Id. at 636, 128 S.Ct. 2783 (emphasis added; citation omitted). The Supreme Court therefore recognized that the right to carry and bear arms under the Second Amendment is not unlimited. Id. at 626-627, 128 S.Ct. 2783. Specifically, the Supreme Court stated that

Notably, the Supreme Court clarified in an accompanying footnote that in providing these examples, "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive." Id. at 627 n. 26, 128 S.Ct. 2783. That language suggests and has been interpreted to mean that "the Second Amendment permits categorical regulation of gun possession by classes of persons — e.g., felons and the mentally ill...." United States v. Booker, 644 F.3d 12, 23 (C.A.1, 2011); see United-States v. Skoien, 614 F.3d 638, 640 (C.A.7, 2010) ("[S]tatutory prohibitions on the possession of weapons by some persons are proper — and, importantly for current purposes, that the legislative role did not end in 1791. That some categorical limits are proper is part of the original meaning, leaving to the people's elected representatives the filling in of details."); see also United States v. Yancey, 621 F.3d 681, 683 (C.A.7, 2010) ("We have already concluded, based on our understanding of Heller and McDonald, that some categorical firearms bans are permissible; Congress is not limited to case-by-case exclusions.").

It follows that a statute, such as the one in this case, could fall within the categories of presumptively lawful regulatory measures.2 Like the restrictions preventing felons, the mentally ill, or illegal drug users from possessing firearms because they are viewed as at-risk people in society who should not bear arms, individuals under the influence of alcoholic liquor may also pose a serious danger to society if permitted to possess or carry firearms because those individuals will have "difficulty exercising self-control, making it dangerous for them to possess deadly firearms." Yancey, 621 F.3d at 685. At this juncture, assuming that the statute at hand is facially constitutional, Yanna, 297 Mich.App. at 145-146, 824 N.W.2d 241, the issue is whether the statute, as applied to defendant, is unconstitutional.

MCL 750.237(1), restricts the possession of a firearm as follows:

Turning to whether this statute is unconstitutional as applied, various United States Courts of Appeals, including the Sixth Circuit, have adopted the following two-pronged approach in addressing Second Amendment challenges:

In applying this approach to the issue presented on appeal, the threshold inquiry is whether MCL 750.237 regulates conduct that falls within the scope of the Second Amendment right as historically understood. Id. at 518, 824 N.W.2d 241. The Second Amendment protects a "law-abiding" person's right to bear arms in his or her home as a means of self-defense. Heller, 554 U.S. at 635, 128 S.Ct. 2783. A right to possess a handgun in one's home as a means of self-defense is a constitutional right that is at the core of Second Amendment protection.

While Second Amendment rights are not unlimited, this conduct is protected. Aside from the statute at issue, defendant was not engaging in an unlawful behavior and there was no evidence to suggest that defendant possessed the handgun for an unlawful purpose. Further, it was not established that this is a case in which someone was unlawfully allowed to own or possess a handgun in the first instance. Additionally, the prosecution has failed to establish that the conduct at issue has historically been outside of the scope of Second Amendment protection. Greeno, 679 F.3d at 518. Given our earlier discussion, defendant's conduct fell within the protections of the Second Amendment. While the perceived danger associated with intoxicated individuals and handguns is real and important, these issues are addressed by analyzing the conduct under the second prong of the Greeno test as discussed below.

Upon finding that defendant's conduct falls within Second Amendment protections, the next inquiry is whether the government can justify by some standard of scrutiny the burden that it wishes to impose on defendant. While defendant argues that the appropriate standard of constitutional scrutiny should be strict scrutiny, the intermediate scrutiny standard is most appropriate.3 Under this standard, the government bears the burden of establishing that there is a reasonable fit between the asserted substantial or important governmental objective and the burden placed on the individual. See Marzzarella, 614 F.3d at 97-98. The prosecution has failed to meet this burden.

While preventing intoxicated individuals from committing crimes involving handguns is an important governmental 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 or her 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.4 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 the person actually has it in his or her 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 by holding that MCL 750.237, as applied to defendant, was unconstitutional.

Affirmed.

JANSEN, P.J., and SAWYER and FORT HOOD, JJ., concurred.