We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
GUNS, DRUGS AND ROCK AND ROLL
Last summer’s Supreme Court decision in New York State Rifle & Pistol Ass’n v. Bruen continues to reverberate.
Last week, a second federal district court ruled that 18 USC § 922(g)(3) – which bans people who consume unlawful controlled substances from possessing guns or ammo – is unconstitutional. The court held that the same legal principle also applies to the sale and transfer of guns to such people.
Bruen held that a court must “determine whether ‘the Second Amendment’s plain text covers an individual’s conduct,’” If it does, Constitution “presumptively protects that conduct.” Then, in order to regulate the conduct, the Government “must justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation,” pointing to “historical precedent from before, during, and even after the founding” of the country that “evinces a comparable tradition of regulation.”
Applying Bruen, courts have found that § 922(g) bans on possession of guns by people subject to domestic protection orders and by people unlawfully using controlled substances violate the Second Amendment. Currently, a Third Circuit en banc court is wrestling with whether the Second Amendment bars the Government from prohibiting the possession of firearms by an individual convicted of the felony of submitting a false application for food stamps over 25 years ago. The Dept of Justice has appealed decisions that the § 922(g)(3) ban on drug users possessing guns is unconstitutional in the 10th Circuit. A group of marijuana users seeking the right to possess guns have appealed an adverse ruling in the 11th Circuit.
In last week’s decision, the U.S. District Court for the Western District of Texas threw out charges that Paola Connelly had violated both 18 USC § 922(g)(3) by possessing a gun as an admitted pot smoker and 18 USC § 922(d)(3) by transferring a gun to her husband, an alleged cokehead.
Neither Paola nor her hubby had been proven to be unlawful drug users. But in the pretrial motion decision, Judge Kathleen Cardone said it didn’t matter if they had been: “[E]ven if Connelly and her husband used controlled substances to the extent alleged by the Government, the Court would find § 922(g)(3) and (d)(3) unconstitutional… Connelly’s alleged drug use more resembles private drinking than public drunkenness, casting doubt on the idea that history supports criminalizing or disarming her for this behavior,” Cardone writes. “And more generally, nothing in § 922(g)(3) limits its applicability to public dangers or active intoxication, putting it out of step with colonial-era attitudes.”
The Judge was clearly troubled that unlike prohibitions on felons possessing guns, § 922(g)(3) does not provide for any pre-deprivation process. The Government need not conduct a hearing or make any offer of proof before it deems someone an “unlawful user” of controlled substances and proceeds to bludgeon the unfortunate stoner with a § 922(g)(3) felony. Citing a prior Western District of Oklahoma case, Judge Cardone complained that “this lack of process makes § 922(g)(3) an ‘outlier in our legal tradition.’”
For “the millions of individuals who use marijuana in states that have legalized the practice,” the Judge observed, “§ 922(g)(3) categorically prevents them from owning a firearm without a hearing or any preliminary showing from the Government. They must choose to either stop their marijuana use, forgo possession of a firearm, or continue both practices and face up to fifteen years in federal prison.”
America’s historical tradition of disarming “unlawful” individuals, the Court held, “appears to mainly involve disarming those convicted of serious crimes after they have been afforded criminal process.” This tradition makes § 922(g)(3) unconstitutional.
Notably, Judge Cardone quoted a 2019 dissent that Supreme Court Justice Amy Coney Barrett wrote as a judge on the U.S. Court of Appeals for the 7th Circuit. Barrett argued that the federal ban on gun possession by people with nonviolent felony records sweeps too broadly. In making that case, she took it for granted that a nonviolent misdemeanor is not enough to justify depriving someone of his Second Amendment rights.
Reason observed, “The Biden administration continues to argue that forbidding cannabis consumers to own guns is like telling people not to carry guns when they’re drunk. The Justice Department, meanwhile, is appealing Wyrick’s decision, and it can be expected to appeal Cardone’s as well… For those keeping partisan score, it is notable that all three of these judges were appointed by Republican presidents: Cardone by George W. Bush, Wyrick and Winsor by Donald Trump. Their disagreement seems to reflect evolving conservative views of marijuana as well as the impact of Bruen.
Look for plenty more judicial rock-and-roll on gun issues.
United States v. Connelly, Case No EP-22-CR-229(2)-KC, 2023 U.S. Dist. LEXIS 62495 (W.D. Tex. Apr. 6, 2023)
United States v. Harrison, Case No CR-22-00328-PRW, 2023 U.S. Dist. LEXIS 18397, (W.D. Okla. Feb. 3, 2023)
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting)
Reason, Another Federal Judge Rejects the DOJ’s Argument That Cannabis Consumers Have No Second Amendment Rights (April 11, 2023)
– Thomas L. Root