Fifth Circuit poised to strike down another prohibited persons statute?

AP Photo/Alan Diaz, File

Unless you’re Hunter Biden, the Department of Justice takes a very dim view of possessing firearms and using illicit drugs of any kind; even those that have been decriminalized or legalized at the state level. But is the federal prohibition on that activity constitutionally permissible? The Fifth Circuit is asking that question in a case called U.S. v. Daniels, and this week both the Second Amendment Foundation and Firearms Policy Coalition gave their answers in amicus briefs filed with the appellate court. The short version? Absolutely not.

Patrick Darnell Daniels, Jr. was indicted by a federal grand jury last year for allegedly violating 18 U.S.C. § 922(g), which forbids gun possession for “unlawful users of controlled substances”; a charge, incidentally, that the media insisted is rarely brought against defendants. Guess Mr. Daniels was just extra unlucky, because not only was he charged but he was convicted and sentenced to 46 months in federal prison for illegally possessing firearms while regularly consuming marijuana.

Daniels’ public defenders appealed that verdict to the Fifth Circuit, arguing that 18 U.S.C. § 922(g) is both unconstitutionally vague because it fails to adequately define “unlawful user” and a violation of Daniels’ Second Amendment rights. The Fifth Circuit heard oral arguments in the case back in early June, but as SAF’s founder Alan Gottlieb says, the three-judge panel took the somewhat unusual step of soliciting amicus briefs from interested parties who could flesh out the historical record on just how longstanding and widespread similar prohibitions may have been.

While SAF Executive Director Adam Kraut says the organization isn’t taking a position for or against certain laws, attorneys failed to turn up any evidence of “historical gun regulations that essentially strip someone of their Second Amendment rights for life, because they may have been under the influence of, or impaired by, an intoxicating substance.”

As the brief explains:

… there were less than a handful of laws enacted during the colonial/pre-Founding Era and zero known laws during the Founding Era itself relating to the possession of firearms by users of illicit or intoxicating drinks or substances, and few known such laws during the 19th century, whether before or after the Civil War.

None of these laws were distinctly similar or relevantly similar to § 922(g)(3) because (1) in contrast, “the restrictions imposed by each law only applied while an individual was actively intoxicated or using intoxicants,” (2) “none of the laws appear to have prohibited the mere possession of a firearm,” or (3) “appear to have applied to public places or activities” rather than “being a total prohibition applicable to all intoxicated persons in all places . . . .” Harrison, 2023 U.S. Dist. LEXIS 18397, at *14. Whereas these laws “took a scalpel” to the right to bear arms, § 922(g)(3) “takes a sledgehammer to the right.”

The amicus brief notes that the DOJ itself has failed to come up with any Founding-era historical analogues to § 922(g)(3), which SAF’s attorneys say should be the fact that should carries the most weight, “given the Supreme Court’s command that the historical analysis required by Bruen must flow from 1791.”

Instead, the federal government cites three laws from the colonial/pre-Founding era; a 1655 law in Virginia that prohibited “shoot[ing] any guns at drinkeing (marriages and ffunerals [sic] onely [sic] excepted),” a New Jersey law from 1746 authorizing militia officials to disarm any soldier who “appear[ed] in Arms disguised in Liquor,” and a 1773 New York statute that prohibited the “fir[ing] or discharge [of] any Gun, Pistol, Rocket, Cracker, Squib or other fire Work [sic]” in certain areas between December 31 and January 2,” a restriction the SAF attorneys explain was meant to address “great Damages [] frequently done on . . . New Years Days, by persons going from House to House, with Guns and other Fire Arms and being often intoxicated with Liquor.”

The SAF brief found a few post-Civil War statutes that dealt with intoxicating liquors and guns, but none of them prohibited gun ownership for any regular consumer of alcohol or drugs (illicit or otherwise). Instead, these were mostly “time, manner, and place” restrictions; individuals may have been barred from carrying while actively intoxicated, but getting intoxicated wasn’t cause for them to be stripped of their Second Amendment rights.

The FPC brief treads similar ground, pointing out that firearms and alcohol were both ubiquitous in the colonial and Founding era, and yet prohibitions on gun ownership for users of intoxicating spirits is nowhere to be found in the historical record. Even when we get to the age of the temperance (and eventually teetotaler) movement, laws prohibiting gun ownership for drinkers are simply absent from the statutes.

Attorney Joseph Greenlee argues that the only historical justification for prohibiting gun ownership to someone is their “dangerousness”, but the “DOJ failed to make any serious effort to establish that connection” in relation to modern day drug use, illegal though it might be.

The DOJ’s fallback argument is that even if there aren’t any historical analogues to support the modern prohibition, the Second Amendment only protects “law abiding citizens,” so any illicit drug use is automatically cause to strip someone of their right to keep and bear arms. That argument is going to be tested by the Supreme Court in the Rahimi case this fall, and I suspect the Fifth Circuit will weigh in with their own views on the DOJ’s position as it applies to § 922(g)(3) before Rahimi‘s oral arguments take place.

The Fifth Circuit has already taken a dim view of several other gun control provisions, including the ATF’s ban on bump stocks and unfinished frames and receivers, as well as determining that those subject to a domestic violence restraining order like Zachey Rahimi still possess the right to keep and bear arms, and this should be a relatively easy call for the judges to make. The history, text, and tradition of the right to keep and bear arms is at odds with § 922(g)(3)’s lifetime prohibition on gun possession for “unlawful” users of drugs, and Hunter Biden shouldn’t be the only one to avoid federal prosecution for doing so.