Historical Substance Use without Intoxication is Not Sufficient to Restrict Gun Rights
In United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), the Fifth Circuit Court of Appeals reversed the district court’s conviction for possession of a firearm while being an unlawful user of a controlled substance because there was no evidence the defendant was intoxicated at the time he was found in possession of a firearm. The Fifth Circuit Court of Appeals utilized reasoning from New York State Rifle & Pistol Ass’n Inc. v. Bruen, 597 U.S. 1 (2022) (Bruen) to find the 1968 U.S. Congress Gun Control Act (GCA) (18 U.S.C. § 922(g)(3)(2015)) unconstitutional.
Facts of the Case
In April 2022, Patrick Daniels was pulled over for driving without a license plate. One of the two officers at the scene was a DEA agent who reported smelling marijuana and, as a result, searched his vehicle. They found marijuana cigarette butts in Mr. Daniels’ ashtray and found two loaded firearms, a 9-mm pistol and semiautomatic rifle. After being Mirandized, Mr. Daniels stated he had smoked marijuana fourteen days per month since high school. He was subsequently charged with violating the GCA which made it illegal for any “person who is an unlawful user of or addicted to any controlled substance” to possess a firearm (18 U.S.C. 922(g)(3)). Law enforcement did not test Mr. Daniels for the presence of illicit substances, in this case specifically marijuana, and the officers did not testify as to whether Mr. Daniels appeared intoxicated during the traffic stop.
Mr. Daniels filed a motion in district court to have his indictment dismissed based on Bruen, which found that firearm restrictions are unconstitutional unless firmly rooted in the country’s history and tradition of firearm regulation. Mr. Daniels’ motion was denied. The court ruled that, as a habitual drug user, Mr. Daniels was in the class of individuals who historically have been disarmed because they demonstrated a “dangerous lack of self-control.” The court also pointed out the GCA had been in place since 1968 and was in concert with this historical practice.
Mr. Daniels was found guilty and sentenced to nearly four years in prison and three years of supervised release and was banned from possessing firearms in the future because of this felony conviction. Mr. Daniels petitioned the Fifth Circuit Court of Appeals to vacate his conviction arguing that the GCA was unconstitutional.
Ruling and Reasoning
The Fifth Circuit Court of Appeals reversed the district court’s decision finding that the ban preventing people who use marijuana from possessing firearms is unconstitutional. The court cited the lack of evidence proving Mr. Daniels was intoxicated at the time of his arrest. The court noted that, historically, the government has made the use of firearms illegal while intoxicated but the same restriction has not applied to those who possess but do not use firearms while under the influence.
The court explained that Congress has the right to limit access to firearms for those who are a danger to society, felons, or have mental illness. The Fifth Circuit stated that marijuana use fourteen days per month did not necessarily make Mr. Daniels a danger to society and referenced his lack of violent history. Utilizing the historical tradition-based reasoning from the Bruen opinion, the court reviewed historical substance use-related laws. The court noted that such laws emphasized intoxication in the setting of firearm use. Mr. Daniels was neither proven to be intoxicated nor actively using his firearms at the time his firearms were discovered by the police officers. The court determined the GCA was not consistent with historical tradition and was therefore unconstitutional: “In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users” (Daniels, p 340).
Discussion
The government has a long-standing interest in limiting access to firearms for those who have been deemed dangerous, including those who are intoxicated. The court ruled that contrary to the GCA, regular substance use should not be considered dangerous unless the person has a known history of violence or mental illness, or has been proven intoxicated in the setting of firearm use. Proving marijuana intoxication is of increasing legal interest in the United States as marijuana is legalized in more and more states. Hair or urine samples are typically used to test for marijuana, but these tests cannot delineate the timing of most recent use or a level that indicates intoxication. As with alcohol, blood testing is not realistic in the setting of traffic stops. Some breath and saliva tests have been developed that can detect marijuana within minutes after consumption, but reliability varies so these methods are not widely used. In most states, a blood alcohol level of 80 mg/dL or .08 percent indicates impairment. Many states do not have clearly defined levels for marijuana impaired driving. Some state laws specify that a THC level above 5 ng/mL indicates driving while impaired. Notably, this THC limit was unsuccessfully challenged in State v. Fraser, 509 P.3d 282 (Wash. 2022). Also of considerable interest will be the development of other tests that measure the level of marijuana and the establishment of a level that indicates impairment.
To determine if a law is constitutional, the U.S. Supreme Court, as a rule, uses one of three levels of judicial scrutiny. This approach was first proposed in the late 19th century and was common practice by the mid-20th century. The highest level of scrutiny, strict scrutiny, requires the government to prove that a law is narrowly tailored to further a compelling government interest. It is used in an equal protection claim and the law in question must infringe on a fundamental right, e.g., the right to marriage (Loving v. Virginia, 388 U.S. 1 (1967)) or a specific classification, e.g., race (Brown v. Board of Education, 347 U.S. 483 (1954)).
A lower level of judicial analysis is intermediate scrutiny. It requires that a law serves an important government objective and is substantially related to that objective. It is applied to laws related to sex (Craig v. Boren, 429 U.S. 190 (1976)) and sexual orientation (Romer v. Evans, 517 U.S. 620 (1996)). In both strict and intermediate scrutiny, the government has the burden of proof.
The lowest level of scrutiny is called rational basis review. It requires the court to consider whether a statue is rationally related to a legitimate government interest. Rational basis review is applied to challenge laws that deal with felony status, wealth, age, and disability (Snider, B. Challenging Laws: 3 Levels of Scrutiny Explained [Internet]; 2020. Available from: https://www.findlaw.com/legalblogs/law-and-life/challenging-laws-3-levels-of-scrutiny-explained/. Accessed November 19, 2023).
In Bruen, the Court delineated a new test for the analysis of the constitutionality of a law dealing with the Second Amendment, i.e., historical tradition-based reasoning. In Bruen, New York State required those applying for an unrestricted license to carry a concealed firearm demonstrate a special need or proper cause for self-defense. The U.S. Supreme Court ruled that a general self-defense interest is sufficient; therefore, the proper cause stipulation violated the Fourteenth Amendment and prevented law abiding citizens from exercising their Second Amendment right to bear arms. The Bruen opinion instructed courts to assess firearm laws with analogical reasoning through the lens of history and tradition rather than tiers of constitutional scrutiny. This type of reasoning encourages the courts to identify historical laws that are analogous but not identical to the law in question and incorporate those historical laws in their analysis. This test was applied to Mr. Daniels’ case by citing historical laws in which firearm use was illegal while intoxicated but not for being an alcohol user. The application of Bruen will continue to evolve. In U.S. v. Rahimi, 61 F.4th 443 (5th Cir. 2023), argued before the U.S. Supreme Court in November 2023, the constitutionality of a law restricting firearm access in the context of civil orders of protection for domestic violence claims is under review. It will be interesting to watch the unfolding of “historical tradition of firearm regulation” as it applies to a wide variety of criminal and civil matters.
- © 2024 American Academy of Psychiatry and the Law
