Friday, August 11th, 2023

Another Day, Another 922(g) Section Found Unconstitutional under Bruen: this time it’s 922(g)(3) prohibiting an “unlawful” drug user from having a gun

This week, in United States v. Daniels, the Fifth Circuit held that a person’s conviction under 922(g)(3) was unconstitutional following Bruen. The facts of Daniels are straightforward: Daniels was found with guns and marijuana in his car and then admitted he was a habitual marijuana user. He was charged and convicted of violating Section 922(g)(3). The Fifth Circuit reversed, holding that history and tradition did not justify disarming a “sober citizen based exclusively on his past drug usage.”

Although 922(g)(3) isn’t a a common charge, there is helpful language in the Daniels opinion for Bruen motions under 922(g)(1). And, the steady drumbeat of 922(g) reversals will hopefully give judges pause in relying on pre-Bruen decisions without a careful analysis.

In Daniels, the government relied on the same language and history that they point to for 922(g)(1) cases. The Fifth Circuit roundly rejected those arguments. The Circuit faulted the government for “seiz[ing]” on the language in Bruen that the Second Amendment only applies to “law-abiding” citizens. The court rejected that saying: “we cannot read too much into the Supreme Court’s chosen epithet,” adding that “more than just model citizens enjoy the right to bear arms.”

The Circuit also rejected the government’s reliance on British law in the 1600s and proposed Constitutional amendments. As the Fifth Circuit said, “we must pause. The predecessors of the Second Amendment gave concrete language to possible limits on the right to bear arms. Yet that language was not adopted. Instead, the People ratified the unqualified directive: ‘shall not be infringed.’ Usually, when the relevant lawmaking body does not adopt language in a draft, we presume that the stricken language was not intended.”

The Circuit does flirt with a “dangerousness” limit to the Second Amendment, saying “we cannot completely discount the sheer number of disarming statutes at the time of the Founding. Together, they suggest a public understanding that when a class of individuals was thought to pose a grave danger to public peace, it could be disarmed.” But, then it steps back, saying that it cannot rely on a “general notion of dangerousness” and that the government “must show that a historical danger-based disarmament is analogous to the challenged regulation.” It could not, so Daniels’s conviction was reversed.

As the concurrence notes, Bruen leaves open many questions that the Supreme Court may answer in Rahimi. But — at least until we have more guidance from the Supreme Court, keep those Bruen motions coming!

Posted by
Categories: Uncategorized
Comments are closed.