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.
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