Author Topic: 18 U.S.C. sec. 922(g) Unconstitutional as Applied  (Read 2786 times)

MarcWinkman

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18 U.S.C. sec. 922(g) Unconstitutional as Applied
« on: August 11, 2023, 12:05:18 PM »
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

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #1 on: August 11, 2023, 02:34:06 PM »
You are a treasure Mark.   
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MarcWinkman

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #2 on: August 11, 2023, 02:41:45 PM »
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

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #3 on: August 11, 2023, 09:08:25 PM »
Just in time to exonerate hunter

slsharp

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #4 on: August 12, 2023, 01:51:25 PM »
Your probably right!

MarcWinkman

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #5 on: August 14, 2023, 11:53:35 AM »
Just in time to exonerate hunter

Indeed it is.

Just Bill

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #6 on: August 14, 2023, 10:41:10 PM »
I am 81 and never expected to live to see the destruction of this nation.  I fear it is here.

Bill
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TwistedKarma

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #7 on: August 15, 2023, 04:48:34 PM »
Id have to agree with you bill.
Just trying to survive in the second Great Deprssion.

MarcWinkman

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #8 on: August 16, 2023, 02:06:41 PM »
Quick update on this case, it looks like the gumint may be moving for rehearing of this case en banc.

RetCapt1994

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #9 on: August 16, 2023, 03:39:43 PM »
I am 81 and never expected to live to see the destruction of this nation.  I fear it is here.

Bill
Bill I am also 81yrs old and in good shape. I have to completely agree with you we are done as a once great country. At my age my time on the planet is getting shorter by the day. I just hope I am gone before this country is completely gone. I do however feel sorry for all the younger people that will have to deal with the problem. Good Luck to all on this site.
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MarcWinkman

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #10 on: September 20, 2023, 01:05:35 PM »
Looks like DE is going to take a crack at whether 18 U.S.C. sec. 922(g) is constitutional with Hunter Biden's pending charges.  Everyone get out the popcorn to see how this goes.

Oaklandopen

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #11 on: September 20, 2023, 06:20:13 PM »
This is a huge can of worms for both sides as there are so many facets.

On the one hand,  which I think is the most important,  this shows exactly why laws and/or answering questions on paperwork DO NOT WORK. You can talk about investigation after the fact but it doesn't do anything once the gun is placed in someone's hand. This would be pro 2A

Then you have the whole drug side of things.  To me that's more of a moral dilemma than a legal one.  I'd say no one should operate a gun under the influence,  but the libertarian side of me says put on your body whatever you want at your own demise. The moment someone needs to defend against your actions,  under the influence or not,  is on you.  Drugs are no excuse if there is a direct threat involved

Then you have the back and forth on party lines about no one is prosecuted for that,  etc. That goes both ways and brings the 2 tier justice system into the limelight even more.  No one wins or loses that argument

Whatever happens my guess is the status quo won't change,  or if there is some sort of major judgment handed down the liberal states won't care and continue their merry constitution stomping ways

TwistedKarma

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #12 on: September 23, 2023, 01:48:30 PM »
I dont have enough popcorn

 :-* :-*
Just trying to survive in the second Great Deprssion.

Just Bill

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Re: 18 U.S.C. sec. 922(g) Unconstitutional as Applied
« Reply #13 on: September 23, 2023, 10:46:52 PM »
With the judges in liberal districts, we will run out of popcorn, money, or die of old age...  "They" still win, and they don't care!!
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