Pot Smokers Can Carry Guns While Sober, US Appeals Court Says

A law banning gun possession by unlawful users of a controlled substance doesn’t apply to someone who is sober at the time of the arrest, a federal appeals court said.

A conviction under the statute was overturned on Wednesday because there was no evidence Patrick Daniels Jr. was intoxicated at the time of his arrest, the US Court of Appeals for the Fifth Circuit said in an opinion by Judge Jerry E. Smith. The law was unconstititional as applied to him because it isn’t consistent with the historical tradition of firearm regulation, the court said.

The court applied the US Supreme Court’s recent guidance for analyzing the constitutionality of firearms laws through a historical lens in N.Y. State Rifle & Pistol Ass’n v. Bruen.

Because there was “little regulation of drugs,” until the late-19th century, “intoxication via alcohol is the next-closest comparator,” Smith said.

The government, however, failed to identify “any relevant tradition at the Founding of disarming ordinary citizens who consumed alcohol,” he said.

Later state laws enacted in the 19th century did ban the carry of firearms while under the influence, Smith said. But the federal law at issue “is a significantly greater restriction of his rights than were any of the 19th-century laws,” he said.

“There is a considerable difference between someone who is actively intoxicated and someone who is an ‘unlawful user,’” Smith said.

The term “unlawful user” is also vague because it doesn’t specify “how recently an individual must ‘use’ drugs to qualify for the prohibition,” he said. And there was no evidence that Daneils, who admitted to smoking marijuana multiple days per month, “was intoxicated at the time he was found with a gun,” Smith said.

“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,” Smith said. “The analogical reasoning Bruen prescribed cannot stretch that far,” he said.

Judge Don R. Willett joined in the opinion.

In a separate concurring opinion, Judge Stephen A. Higginson said “it is possible that inferior judicial officers such as myself are misinterpreting
Bruen” by focusing on the right to keep and bear arms.

“It may be that the Supreme Court will remind us of the Second Amendment’s middle, where the Framers stated explicitly that they were fashioning a right ‘necessary to the security of a free State’” he said.

The Office of Federal Public Defender represented Daniels.

The case is United States v. Daniels, 5th Cir., No. 22-60596, 8/9/23.