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18 U.S.C. sec. 922(g) Unconstitutional as Applied
MarcWinkman:
The Fifth Circuit Court of Appeals issued a decision in the matter to United States v. Daniels, 2023 WL 5091317 (5th Cir. Aug. 9, 2023). In this case, Mr. Daniels was pulled over for a traffic infraction. During their interaction with Mr. Daniels, officers, including a DEA agent noticed an odor of marijuana. Consequently officers conducted a probable cause search of the vehicle and located four burnt down blunts, a loaded 9mm pistol, and a semi-automatic rifle. Mr. Daniels admitted to using marijuana 14 days a month. No investigation occurred with respect to whether he was presently under the intoxicating effect of marijuana at the time of the stop and investigation. Mr. Daniels was convicted of being an unlawful user of controlled dangerous substances in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(3) in the Southern District of Mississippi and was sentenced to four years in prison.
On appeal, a three judge panel of the Fifth Circuit held that as applied to Mr. Daniels, section 922(g)(3) was unconstitutional as applied. In applying the Bruen test, it first held Mr. Daniels to be among "the pep]pe" protected by the Second Amendment and in moving to step two in analyzing the text, history, and tradition proffered by the government, rejected the government's arguments. The nearest analogical parallel is legislation that historically regulated possession of firearms and alcohol. Under these historical laws, the Fifth Circuit found that the regulations were far less burdensome as these regulations did not disarm a person not presently under the influence for imbibing in intoxicating liquor at some other time. Further analysis turned to restrictions relating to use of firearms while intoxicated. In each example the Fifth Circuit made a point to emphasize that these regulations all dealt with carrying or discharging firearms while intoxicated, and that they were very limited in their time and scope.
It's an interesting case. I have a decent client I'm going to take this for a spin with in the New Castle Superior Court after he's indicted since 11 Del. C. sec. 1448(a)(9) is the state equivalent as the Fifth Circuit invalidated as applied portion of the U.S.C. And happily for once, I have good facts that will allow me to make the argument.
Clarence:
You are a treasure Mark.
MarcWinkman:
Just doing what I can. Also, the thing to keep in mind with this ruling is that it doesn't point blank declare Section 922(g)(3) unconstitutional under the Second Amendment, it's only as applied meaning that going forward it will be an ad hoc determination as to whether the charges against a given individual can withstand Bruen scrutiny.
Oaklandopen:
Just in time to exonerate hunter
slsharp:
Your probably right!
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