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August 10, 2023

Fifth Circuit panel declares unconstitutional federal prohibition on gun possession by “unlawful user” of controlled substances

In a post last summer right after the Supreme Court's landmark Second Amendment ruling, I wondered "Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?".  A handful of district courts have concluded that federal law prohibiting dug possession by unlawful drug user violates the Second Amendment, and now a circuit court has joined these ranks.  Specifically, in US v. Daniels, No. 22-60596 (5th Cir. Aug. 9, 2023) (available here), a Fifth Circuit panel has decided the federal prohibition on firearm possession for “unlawful user” of a controlled substance is unconstitutional.  Here is how the opinion for the court in Daniels gets started:

Title 18 U.S.C. § 922(g)(3) bars an individual from possessing a firearm if he is an “unlawful user” of a controlled substance. Patrick Daniels is one such “unlawful user” — he admitted to smoking marihuana multiple days per month. But the government presented no evidence that he was intoxicated at the time of arrest, nor did it identify when he last had used marihuana. Still, based on his confession to regular usage, a jury convicted Daniels of violating § 922(g)(3).

The question is whether Daniels’s conviction violates his right to bear arms.  The answer depends on whether § 922(g)(3) is consistent with our nation’s “historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is a close and deeply challenging question.

Throughout American history, laws have regulated the combination of guns and intoxicating substances.  But at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another.  A few states banned carrying a weapon while actively under the influence, but those statutes did not emerge until well after the Civil War.  Section 922(g)(3) — the first federal law of its kind — was not enacted until 1968, nearly two centuries after the Second Amendment was adopted.

In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage.  Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.  As applied to Daniels, then, § 922(g)(3) violates the Second Amendment.  We reverse the judgment of conviction and render a dismissal of the indictment.

August 10, 2023 at 03:37 AM | Permalink


Notably, this is the same statute, 922(g)(3), that Hunter Biden is charged with violating, and for which he was offered a diversion agreement. I have long believed that part of the reason for the diversion agreement being offered was that 922(g)(3) was so vulnerable to being challenged under Bruen as violating the 2nd Amendment. That statute only became law in 1968, so this topic wasn't regulated between 1792 when the 2nd Amendment was adopted and 1968. It remains to be seen how this Fifth Circuit decision will affect Hunter Biden's case pending in Massachusetts (??). Arguably, his attorneys should now file a Motion to Dismiss the 922(g)(3) count of the indictment. See, United States v. Daniels, 610 F. Supp. 3d 892, 893 (S.D. Miss. 2022), reversed, Daniels v. United States, No. 22-60596 (5th Cir. August 9, 2023).

Posted by: Jim Gormley | Aug 10, 2023 10:43:06 AM

Jim, I do not believe Hunter was formally indicted on a 922(g)(3) charge, and I believe that choice was made by the feds in part because of concerns over this issue being litigated by Hunter's lawyers (especially in the 3d Circuit where the Range case provides strong 2d A authority for defendants). So I do not believe there is a formal gun count for Hunter to seek to dismiss.

But this Daniels ruling adds to the interesting question of whether it would be proper for the district judge, who has to approve all the Hunter-feds deal-making, to give any blessing to a diversion agreement premised on a potentially unconstitutional provision. Of course, in the 3d Circuit, 922(g)(3) has not yet been ruled unconstitutional, and arguably the diversion term provides space/time for the constitutional status of 922(g)(3) to get resolved.

Posted by: Doug B | Aug 10, 2023 9:18:22 PM

Doug: So, you think that Hunter Biden's 922(g)(3) charge would be from a Criminal Information instead of an indictment? That's probably right. It occurred to me a week ago that if Hunter and the DOJ did the Diversion Agreement, he could later get it set aside (particularly if he violated the terms of the diversion) on Second Amendment grounds, in light of the 2022 Supreme Court decision. They are playing some kind of chess game, but I don't see it all flying now. This Judge is not going to rubber stamp their deal, and Hunter's alternative to a plea os going to trial -- no acceptance of responsibility.

Posted by: Jim Gormley | Aug 10, 2023 10:58:27 PM

Regardless of whether the charge is in an indictment or an information, the only way a guilty plea would stick is if HB waves his right to appeal the conviction on the ground that the statute under which he pled is unconstitutional as applied. After al, under Class v. US, that's not a claim waived automatically by an unconditional guilty plea.

Posted by: Da Man | Aug 11, 2023 10:56:48 AM

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