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“HISTORY IS OUR HEURISTIC”

The 5th Circuit already has a reputation in gun-lovin’ circles for applying last year’s New York State Rifle & Pistol Association v. Bruen decision in United States v. Rahimi, holding that even a dirtbag subject to a domestic protection order had a 2nd Amendment right to possess a gun.

(In its final action before fleeing Washington, DC, at the end of June for three months of summer vacation, the Supreme Court granted the government’s petition for certiorari in Rahimi, meaning that What-A-Burger, road rage, and stalking will soon be a part of 2nd Amendment discourse).

Under 18 U.S.C. § 922(g)(3), you may not possess a firearm if you are an “unlawful user” of a controlled substance. A couple of district courts have already ruled that Bruen invalidates this prohibition, but on Wednesday, Patrick Daniels – maybe the guy Charlie Daniels (no apparent relation) had in mind as driving down the highway while “tokin’ on a number and digging on the radio” – was the latest beneficiary of Bruen’s historical “heuristics.”

Pat is a dedicated but “unlawful user” of cannabis. When Pat was pulled over for a traffic infraction, police smelled marijuana in his car. A search turned up a couple of loaded handguns. When questioned, Pat admitted that he smoked marijuana about 14 days per month, although no one thought to ask him whether he was high at the time or, for that matter, test him for controlled substances.

That was a mere detail to the DEA, however. Before Pat knew it, he was charged with a § 922(g)(3) offense. A jury found him guilty, and he was sentenced to nearly four years in prison.

Pat appealed, arguing that Bruen made his conviction a violation of the 2nd Amendment. Two days ago, the 5th Circuit agreed.

The Circuit first concluded that the 2nd Amendment clearly applied to Pat:

The right to bear arms is held by “the people.” That phrase “unambiguously refers to all members of the political community, not an unspecified subset.” Indeed, the Bill of Rights uses the phrase “the people” five times. In each place, it refers to all members of our political community, not a special group of upright citizens. Based on that consistent usage, [District of Columbia v.] Heller concluded that “the Second Amendment right is exercised individually and belongs to all Americans.” Even as a marihuana user, Daniels is a member of our political community. Therefore, he has a presumptive right to bear arms. By infringing on that right, § 922(g)(3) contradicts the plain text of the Second Amendment.

The 2nd Amendment codified a “‘pre-existing right’ with pre-existing limits,” the 5th explained. Thus, “to ascertain those limits, history is our heuristic. Because historical gun regulations evince the kind of limits that were well-understood at the time the 2nd Amendment was ratified, a regulation that is inconsistent with those limits is inconsistent with the 2nd Amendment. So whether Pat’s conviction violated his 2nd Amendment right to bear arms “depends on whether § 922(g)(3) is consistent with our nation’s historical tradition of firearm regulation,” the 5th said. “It is a close and deeply challenging question.”

However, the Circuit found, while “throughout American history, laws have regulated the combination of guns and intoxicating substances,” at no time “in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another… [O]ur 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. As applied to Daniels, then, § 922(g)(3) violates the 2nd Amendment.”

Meanwhile, the 5th Circuit took in the chin last week when the Supreme Court reversed its refusal to stay a district court holding that new Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that effectively banned “ghost guns” violated the Administrative Procedure Act.

At the end of June, Judge Reed O’Connor of the Northern District of Texas held in Garland v. Vanderstok that ATF regulations defining “ghost guns” – kits of components that do not meet the definition of “firearm” but may be assembled, with some simple machining performed at home by the end user, into functional firearms lacking any serial number – as firearms exceeded the agency’s authority and thus were invalid.

The government sought a stay of Judge O’Connor’s order from the 5th Circuit, which the Circuit denied. On July 24, the 5th ruled that “[b]ecause the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule…This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.”

Last Wednesday, the Supreme Court reversed the 5th Circuit, holding in a one-paragraph order that Judge O’Connor’s injunction against the new rule is “stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”

The Supreme Court decision granting the stay was 5-4, with Justice Barrett in the majority. This surprised some commentators, who have placed Justice Barrett firmly in the pro-2nd Amendment camp. But as Slate argued Wednesday, her decision in favor of a stay does not necessarily mean the ATF can breathe easy:

Barrett’s vote may be attributable to her distaste for “nationwide vacatur.” In a recent decision, the justice cast serious doubt on the legality of this tool, which allows a lone federal judge to block a federal policy in all 50 states. She is quite right to be skeptical that this power exists, or at least that it can be used as freely as O’Connor and his fellow conservatives deploy it today… If that’s true, and Barrett’s vote was purely procedural, then the ghost guns rule is not out of the woods yet… When it comes back to SCOTUS on the merits, though, Barrett could vote to strike down the rule, since the side debate over O’Connor’s use of “vacatur” would no longer be relevant. Gun rights advocates will fight this one all the way to the bitter end. And the Biden administration should not assume it has Barrett on its side as it fights for the new rule’s long-term survival.

All of this is prelude for the central question of interest to prisoners, whether Bruen has invalidated 18 USC 922(g)(1), the felon-in-possession statute. That question, already decided in favor of defendants in the 3rd Circuit – Range v. Atty General – and against defendants in the 8th Circuit – United States v. Jackson – will no doubt be reaching the Supreme Court soon enough.

District of Columbia v. Heller, 554 U.S. 570 (2008)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 599 U.S. —, 142 S. Ct. 2111 (2022)

Vanderstok v. Blackhawk Mfg. Grp. Inc., Civil Action No. 4:22-cv-00691, 2023 U.S. Dist. LEXIS 115474 (N.D. Tex. June 30, 2023)

Order, Garland v. VanderStok, Case No. 23A82, 2023 U.S. LEXIS 2870 (Aug. 8, 2023)

Reason, Supreme Court Lets Biden’s ‘Ghost Gun’ Regulations Stand Pending Ongoing Lawsuit (August 9, 2023)

Slate, The Big Question Behind Amy Coney Barrett’s Surprise Vote on Ghost Guns (August 8, 2023)

United States v. Jackson, Case No. 22-2870, 2023 U.S. App. LEXIS 13635 (8th Cir. June 2, 2023)

Range v. AG United States, 69 F.4th 96 (3d Cir. 2023)

– Thomas L. Root