Last Monday, the U.S. Court of Appeals for the Fifth Circuit – which encompasses Louisiana, Mississippi, and Texas – reversed the conviction of a man under a federal law that prohibits firearm possession by one who is “an unlawful user of or addicted to any controlled substance{.]” The substance in question was marijuana. The case, U.S. v. Daniels, adds to a growing body of law critically re-examining broad “prohibited person” statutes under the U.S. Supreme Court’s “ text, history and tradition” standard of review for Second Amendment cases reaffirmed in New York State Rifle & Pistol Association v. Bruen.
In April 2022, police officers pulled over Patrick Daniels, Jr., for driving without a license plate. One smelled marijuana while approaching the vehicle, searched it, and found burnt butts from several marijuana cigarettes in the ashtray. He also found two loaded firearms, one within arm’s reach and one nearby in the truck’s back seat.
Daniels was arrested and transported to the local U.S. Drug Enforcement Agency office. He waived his Miranda rights and admitted he had been a regular marijuana user since high school, smoking the drug “approximately fourteen days out of a month.” The agents did not, however, ascertain or render an opinion as to whether Daniels was under the influence of marijuana at the time of his arrest.
Daniels was charged under 18 U.S.C. 922(g)(3) (which codifies the above-mentioned prohibition), convicted, and sentenced to nearly four years in federal prison. Daniels successfully appealed his conviction, with a prior Fifth Circuit opinion finding that applying 922(g)(3) to his case violated the Second Amendment.
But the U.S. Supreme Court overturned that opinion and ordered the Fifth Circuit to rehear Daniels’s case in light of the high court’s opinion in U.S. v. Rahimi, which held that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed” consistent with the Second Amendment. Rahimi had been convicted under a different federal statute that applies to a person subject to a domestic violence order of protection, “issued after a finding that the person represents a credible threat to the physical safety of [an] intimate partner or child [of such intimate partner.]”
Monday’s opinion was the result of the Fifth Circuit’s reconsideration of its prior decision in Daniels. As before, the Fifth Circuit determined that 922(g)(3) was not per se unconstitutional and allowed the statute itself to stand. The judges agreed the statute could be validly applied where the accused was determined to be actively impaired by illegal drug use at the time of the firearm possession. They also agreed it could not be constitutionally applied “where it seeks to disarm an individual solely ‘based on habitual or occasional drug use.’”
Circuit Judge Jerry Smith, who authorized Monday’s opinion, further opined 922(g)(3) might be applicable where the illegal drug use was so regular and heavy that it rendered the person “continually impaired,” even when not acutely intoxicated.
In Daniels’s case, however, the jury was allowed to find him guilty on a determination that “the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.” This language was included in a regulation ATF promulgated to implement 922(g)(3). Yet the Daniels court found it “doom[ed his} conviction” because it could apply to the sort of “habitual or occasional drug use” that has no historical basis under the Second Amendment as grounds for a lifetime firearm prohibition.
The Fifth Circuit’s decision is especially relevant, given the nation’s shifting legal landscape over marijuana possession and use. A marijuana advocacy group reports that 28 U.S. states and territories now allow for legal marijuana use under at least some circumstances. The number increases to 47 states and territories where only medical use is considered.
Marijuana use is no longer limited to the domain of indigenous religious customs or youth-oriented counterculture and now includes a wide variety of people who use it for medicinal or recreational reasons. Many of these individuals are otherwise law-abiding and productive members of their communities and want to exercise their right to keep and bear arms.
Yet federal law continues to ban outright the cultivation, possession, and distribution of marijuana, as well as the possession of marijuana paraphernalia.
This has led to a confusing regulatory landscape. The Biden-Harris administration, for example, has taken a hands-off approach to enforcing federal laws in the context of marijuana commerce or use that is lawful in the jurisdiction in which it occurs. Yet the ATF has since the Obama-Biden administration remained contradictorily committed to enforcing 922(g)(3) against marijuana users, even those complying with the laws of their states.
Whatever position one takes on the use of marijuana, Americans deserve laws that are clear, that are consistently and fairly applied, and that comply with the U.S. Constitution, as it was understood when it was adopted and amended in relevant respects. As the Daniels case indicates, the country is still struggling to reach that standard when it comes to marijuana use and firearms.
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