The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Fifth Circuit Holds That People Who Use Marijuana Don't Lose Second Amendment Rights (At Least When Sober)


Title 18 U.S.C. § 922(g)(3) bans gun possession by anyone "who is an unlawful user of or addicted to any controlled substance," including marijuana; the ban applies not just while a person is intoxicated, but also while the person is sober. Today's decision in U.S. v. Daniels, written by Judge Jerry Smith and joined by Judges Stephen Higginson and Don Willett, holds that this violates the Second Amendment:

Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence. Indeed, it is helpful to compare the tradition surrounding the insane and the tradition surrounding the intoxicated side-by-side. The Founders purportedly institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober. We must ask, in Bruen-style analogical reasoning, which is Daniels more like: a categorically "insane" person? Or a repeat alcohol user? Given his periodic marihuana usage, Daniels is firmly in the latter camp. If and when Daniels uses marihuana, he may be comparable to a mentally ill individual whom the Founders would have disarmed. But while sober, he is like the repeat alcohol user in between periods of drunkenness….

[T]here is a considerable difference between someone who is actively intoxicated and someone who is an "unlawful user" under § 922(g)(3). The statutory term "unlawful user" captures regular users of marihuana, but its temporal nexus is vague—it does not specify how recently an individual must "use" drugs to qualify for the prohibition. Daniels himself admitted to smoking marihuana fourteen days a month, but we do not know how much he used at those times, and the government presented no evidence that Daniels was intoxicated at the time he was found with a gun. Indeed, under the government's reasoning, Congress could ban gun possession by anyone who has multiple alcoholic drinks a week from possessing guns based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far….

The government suggests that, in the spirit of the drafts of the Second Amendment and the Militia Act, marihuana users threaten the public "peace." But at the time of the Founding, that notion referred specifically to violence or rebellion, not generalized public harm. And § 922(g)(3) is not limited to those with a history of violent behavior—not all members of the set of "drug users" are violent. As applied in this case, the government has not shown how Daniels's marihuana use predisposes him to armed conflict or that he has a history of drug-related violence.

Furthermore, even as the Founders were disarming Catholics and politically disaffected citizens, they left ordinary drunkards unregulated. The government has no meaningful response to the fact that neither Congress nor the states disarmed alcoholics, the group most closely analogous to marihuana users in the 18th and 19th centuries. As with the government's analogy to mental illness, we must ask: Which are marihuana users more like: British Loyalists during the Revolution? Or repeat alcohol users? The answer is surely the latter.

The government asks us to set aside the particulars of the historical record and defer to Congress's modern-day judgment that Daniels is presumptively dangerous because he smokes marihuana multiple times a month. But that is the kind of toothless rational basis review that Bruen proscribes. Absent a comparable regulatory tradition in either the 18th or 19th century, § 922(g)(3) fails constitutional muster under the Second Amendment….

We conclude only by emphasizing the narrowness of that holding. We do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels. Nor do we suggest that a robust Second Amendment is incompatible with other reasonable gun regulations. Such statutes just need to be consonant with the limits the Founding generation understood to be permissible when they ratified the Second Amendment. The government has failed to demonstrate that here….

The Supreme Court's forthcoming decision in U.S. v. Rahimi, where the Fifth Circuit had struck down the federal ban on gun possession by people who are under certain kinds of domestic violence restraining orders, will likely affect the result in this case as well. Judge Higginson's concurrence so notes; an excerpt:

In granting certiorari in Rahimi, the Supreme Court likely will resolve some of [the questions raised by recent Second Amendment disputes -EV]. Of course, in the meantime, it is our job as an inferior court to apply the Supreme Court's mandates and aid the development of this field of law. But the uncertainty and upheaval resulting from best efforts to apply Bruen now extend far beyond our dockets. Myriad and obvious public safety laws, some over a century old, face inconsistent invalidation. The impact of these challenges, outside of the evident yet indescribable tragedies of victims of gun violence, will fall heavily on states, which exercise most police power and must assure public safety. See Teter v. Lopez, No. 20-15948, 2023 WL 5008203 (9th Cir. Aug. 7, 2023) (striking down Hawaii's ban on butterfly knives as unconstitutional under Bruen). Already, as courts work through the impact of Bruen, defendants guilty of a gun crime in one jurisdiction are presently innocent of it in another.

I cannot help but fear that, absent some reconciliation of the Second Amendment's several values, any further reductionism of Bruen will mean systematic, albeit inconsistent, judicial dismantling of the laws that have served to protect our country for generations. Furthermore, such decisions will constrain the ability of our state and federal political branches to address gun violence across the country, which every day cuts short the lives of our citizens. This state of affairs will be nothing less than a Second Amendment caricature, a right turned inside out, against freedom and security in our State.