Law Keeping Guns From Drug Users Gets Fifth Circuit Questioning

How the US Supreme Court’s recent decision in US v. Rahimi bears on the constitutionality of a law barring drug users from possessing guns was the focus of questioning by Fifth Circuit judges Tuesday.

“How would the statute operate in a place like Colorado, which has much more liberal marijuana usage laws?” Judge Kurt D. Engelhardt asked the government. “Would the state law have any type of impact, or do we just say anybody who regularly and habitually uses marijuana in the state of Colorado would be a felon under the section?”

“If they possess a firearm, our position is the latter,” said Mahogane Denea Reed, an attorney for the government. But, Reed said, that could be taken up on an as-applied challenge and not resolved in the case before the court.

“With the benefit of Rahimi from the Supreme Court, they want us to look at this from every different point of view that we can imagine,” Engelhardt responded.

The questioning came as the US Court of Appeals for the Fifth Circuit heard oral arguments in the government’s appeal of a district court ruling that the law, Section 922(g)(3), is unconstitutional. US District Judge Kathleen Cardone’s 2023 order tossed a federal indictment against Paola Connelly on Second Amendment grounds.

The Fifth Circuit’s ruling in Connelly’s case will provide insight into how courts are applying Rahimi, which upheld 8-1 a law that bars firearm possession by people under domestic-violence restraining orders.

Section 922(g)(3) has also gained political significance because it’s one of the laws Hunter Biden, son of President Joe Biden, was found guilty of violating in June. The Fifth Circuit’s ruling may also bear on a potential appeal in Hunter Biden’s case.

‘The Founding Fathers Were Not Boy Scouts’

The government argued that Cardone found the statute facially unconstitutional before Rahimi and the Fifth Circuit should now reverse. Reed pointed to language in Rahimi that the government doesn’t need to show a historical analog is an exact parallel to a modern gun law in order for the law to be constitutional.

The Rahimi decision—which reversed the Fifth Circuit— came after the high court’s 2022 Bruen decision. Bruen held that courts should look to the nation’s history of firearms regulation in determining whether a a gun law has run afoul of the Second Amendment.

The government’s analogs for 922(g)(3)—historical restrictions on gun use for intoxicated people, dangerous people, and mentally ill people—"combined justify the statute,” Reed argued.

Mary Stillinger, an attorney for Connelly, said it’s “unclear” if Cardone found the statute facially unconstitutional or just as applied to Connelly, who the government alleged was a “regular” marijuana user. The Fifth Circuit should find the statute, at minimum, unconstitutional as applied to Connelly, Stillinger said.

“The facts of Ms. Connelly’s case present the most innocuous gun possession — possession of a gun in one’s home, and the most innocuous drug usage I’d say, usage of marijuana in one’s home,” Stillinger argued. “It’s hard to imagine any facts more deserving of an unconstitutional as-applied challenge.”

Even under Rahimi, the government hasn’t provided sufficient historical precedents to uphold the statute, Stillinger also argued, noting there aren’t similar Founding-era restrictions.

“The Founding Fathers were not Boy Scouts,” Stillinger said. Despite heavy drinking at the time, “there was no regulation on people intoxicated with alcohol owning firearms in their homes.”

Divided Courts

Hanging over Tuesday’s arguments is United States v. Daniels, a case where the Fifth Circuit tossed a Section 922(g)(3) charge as unconstitutionally applied to a marijuana user. The US Supreme Court in July vacated that decision and remanded it to the Fifth Circuit for reconsideration in light of Rahimi.

Englehardt said he’s still “trying to fit the rationale of Daniels under Rahimi. That seems to be the task we have before us, is to reconcile those two.”

Asked if the Fifth Circuit should decide Daniels before Connelly, both sides said no.

The government argued the cases were different because Connelly presents a facial challenge to the statute while Daniels is an as-applied challenge.

Stillinger argued the Supreme Court’s vacatur of Daniels doesn’t mean it was incorrectly decided and it should still guide the court. “All the Second Amendment cases” were sent back for reconsideration in light of Rahimi “whichever way they went,” Stillinger said. “So I don’t think the fact that it was sent back is any comment on the Supreme Court’s feeling about Daniels.”

Section 922(g)(3) has divided federal courts. But no federal appeals court so far has struck down the gun ban for drug users as facially unconstitutional.

The US Court of Appeals for the Eighth Circuit in April rejected a constitutional challenge to the law, but left the door open for the charge to be dismissed in other cases.

Judges Jerry E. Smith and Irma Carrillo Ramirez were also on the panel.

Stillinger & Godinez PLLC represents Connelly.

The case is United States v. Connelly, 5th Cir., No. 23-50312, oral argument 7/9/24.