Court Rules that Drug Users are Allowed to Possess Guns

In an opinion published Wednesday (USA v. Daniels), the Second Circuit Court of Appeals invalidated a federal law that prohibited "unlawful users of controlled substances" from possessing firearms.  Applying the Bruen "historical analogy" test, a 3-judge panel found that "at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at some point from possessing guns at another."

The defendant had been stopped in Mississippi for driving without a license plate.  A DEA agent noticed some roaches in his ashtray and a search of the vehicle uncovered two loaded firearms.  Mr. Daniels admitted to smoking marijuana approximately 14 times per month, but officers never asked if he was under the influence at the moment and no drug tests were performed.  He was arrested on suspicion of violating 18 USC 922(g)(3), a federal law that prohibits "unlawful users of controlled substances" from possessing firearms.  Mr. Daniels was convicted by a lower court and sentenced to serve 4 years in prison.  

Anyone who has ever purchased a firearm from a licensed dealer knows about Form 4473.  The standard questionnaire is used to screen out buyers who are federally prohibited from possessing firearms.  It asks about felony convictions, dishonorable discharges from the military, involuntary commitments to mental hospitals, whether the buyer has ever renounced his / her US citizenship, and whether the buyer is a "unlawful user of controlled substances", among other things.  In 2016, the ATF updated the form to warn that marijuana is still illegal under federal law, regardless of whether or not it has been legalized in the buyer's home state.  Making a false statement on the Form 4473 is punishable by a maximum of 10 years in prison. 

The court in Daniels spent a significant portion of the opinion struggling with how to define a "historical analogy".  How "analogous" does a historical law have to be to the modern law at issue?  The judges determined that the answer depends on whether a modern gun restriction attempts to address general societal issues which existed at the time of the founding, or "unprecedented societal concerns that the Founding generation did not experience".  If the issue is one that the Founders would have understood, then modern analysts should look for distinctly similar historical examples of regulation.  On the other hand, if today's law attempts to regulate some issue that the Framers could not have foreseen, then modern judges should look for historical examples of regulations that are merely "relevant", even if not "distinctly similar".  

The Framers of the US Constitution only knew cannabis as a source of rope, not as an intoxicant.  They had no thoughts about marijuana or the modern drug trade, but they were very familiar with alcohol, alcohol abuse and the dangers of handling firearms while under the influence.  Since alcohol is our closest historical analogy to cannabis, the judges in Daniels pored over early American laws and regulations for any examples of how (or if) the Founders approved of disarming intoxicated individuals.  They note that very few such laws exist.  A 1656 Virginia law, for instance, prohibited the discharge of firearms while intoxicated, but not for the reasons that might seem intuitive for a modern observer.  At the time, lawmakers were primarily concerned with conserving scarce gunpowder and with the risk that "ill-timed gunshots might be mistaken for a signal that local Indians were attacking".  The Virginia law did not prohibit intoxicated individuals from owning or possessing firearms.  

The court cited a New York law, enacted in 1771, which prohibited intoxicated individuals from discharging firearms between December 31 and January 2 because of the "great damages" done over the New Year holiday.  It also mentioned a handful of local statutes that prohibited militiamen from carrying weapons while intoxicated.  Aside from these few examples, no other notable restrictions appeared on law books until the Reconstruction period, following the Civil War.  At that time, only 3 states prohibited the carrying of firearms while intoxicated, and no state disarmed individuals merely for being "users" of alcohol.  

The court ultimately concluded that no such historical analogy exists to justify disarming individuals merely for their status of being "unlawful users" of controlled substances.  It noted that the case might have turned out differently if the state could present some evidence that Mr. Daniels was intoxicated at the time he carried the weapons, or that he was dangerous to public safety due to his drug use.  

Cases like this are coming down every week, and they are continuing to completely reshape the way we think about gun laws in California.  I will do my best to stay on top of the latest developments, so check back often for updates as they become available.  

If you or a loved one has questions about California gun laws, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Fullerton Gun Lawyer

Did the 9th Circuit Just Legalize Butterfly Knives?!?

A 3-judge panel of the 9th Circuit Court of Appeals just invalidated Hawaii's ban on butterfly knives.  Ruling in the case of Teter v. Lopez, judges found that a Hawaii law which prohibited the manufacture, sale, transportation and possession of butterfly knives violated the Second Amendment of the US Constitution.  

The Old Rule

Readers of this blog know that the US Supreme Court recently adopted a new test to determine whether or not a specific law violates the Second Amendment's right to bear arms.  

Previously, the court weighed the importance of a state's interests and considered the degree to which the law was related to serving that interest vs. the degree to which it infringed upon some "core" Second Amendment right.  If the law was closely related to achieving some important government interest (i.e. reducing gun violence, etc.), then it was generally allowed to stand.  

The New Rule -- Bruen

In Bruen, though (decided last year), the Supreme Court announced a new test to apply in cases involving Second Amendment challenges.  

Rather than considering the importance of a state's interests and the degree to which those interests relate to a given law, lower courts must now apply a "historical analogy" test to Second Amendment issues.  If the law in question is similar, or "historically analogous" to some law that existed at the time the Constitution was adopted, then we can assume that the Framers approved of the restriction and that the law is constitutional.  If some modern restriction is without historical precedent, though, then we should conclude that the Framers would not have accepted it and that the modern law is unconstitutional.  

Teter

Hawaii laws prohibit the manufacture, sale, transportation and possession of butterfly knives.  Plaintiffs in Teter were law-abiding residents of Hawaii who wanted to -- and were legally prevented from -- purchasing butterfly knives for self-defense.  They brought a suit against the Attorney General of Hawaii to invalidate the state's ban.  A lower court had ruled for the state and plaintiffs appealed to the 9th Circuit. 

The appellate court started by establishing that butterfly knives are "arms" and that they, therefore, fall within the protections of the Second Amendment. 

Once the court overcame this initial hurdle, it spent most of the published opinion analyzing various historical knife laws that Hawaii cited as precedent for its restrictions.  Judges examined several 200 year-old statutes that prohibited certain types of people from carrying specific weapons at particular places and times.  Some historical laws banned the "concealed carrying" of Bowie-type knives, along with cane swords and other objects that were not immediately identifiable as deadly weapons.  Many of these archaic laws included exceptions for law-abiding people to carry otherwise-prohibited weapons for self-defense, while traveling or "carrying on lawful business", etc.  

None of the laws that the State of Hawaii cited as historical precedents specifically banned butterfly knives.  The judges reasoned that a butterfly knife is more analogous to a typical pocket knife than it is to a Bowie knife, and that none of the historical laws prohibited pocket knives.  The court also noted that most of the laws cited by Hawaii prohibited the carrying of certain weapons in public, but not the manufacture, sale or private ownership of those same weapons.  

The judges concluded that no historical precedent supported the state's position and remanded the case to the lower court for "further proceedings consistent with this opinion".  

What Does This Mean for California?

Butterfly knives are included within the definition of "switchblades" under section 17235 of the California Penal Code.  

Section 21510 of the California Penal Code makes it a misdemeanor to carry a switchblade in the passenger area of a car or "upon the person".  It also prohibits the sale or transfer of any switchblade.  That includes giving, loaning, or offering to sell a switchblade.  

Interestingly, California law does not prohibit the manufacture, transportation or possession of a switchblade.  Switchblades may be legally produced in California for sale outside of the state (and imported into the state if purchased elsewhere), kept at home, or carried in the trunk of a car.  

Since Hawaii's law was more restrictive than California's, it is not clear how the court would rule on a challenge to PC 21510.  The California law seems to be more in line with the historical cases that prohibited certain types of weapons in specific places.  At the same time, the courts could reason that a switchblade or butterfly knife is more analogous to a pocket knife than it is to a Bowie knife, and that there is no historical precedent for any restrictions.  

We will be following this closely, so check back for updates as they become available.  

If you or a loved one has questions about knife laws in California, call for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Orange County Knife Lawyer