United States v. Connelly
Citation117 F.4th 269
Date Filed2024-08-28
Docket23-50312
Cited37 times
StatusPublished
Full Opinion (html_with_citations)
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United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-50312
FILED
August 28, 2024
____________
Lyle W. Cayce
United States of America, Clerk
PlaintiffâAppellant,
versus
Paola Connelly,
DefendantâAppellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:22-CR-229-2
______________________________
Before Smith, Engelhardt, and Ramirez, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Paola Connelly is a non-violent, marijuana smoking gunowner. El Paso
police came to her house in response to a âshots firedâ call. When they
arrived, they saw John, Paolaâs husband, standing at their neighborâs door
firing a shotgun. After arresting him, they spoke with Paola, who indicated
that she would at times smoke marijuana as a sleep aid and for anxiety. A
sweep revealed that the Connellysâ home contained drug paraphernalia and
several firearms, including firearms owned by Paola. There was no indication
that Paola was intoxicated at the time.
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No. 23-50312
Paola was charged with violating: (1) 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2)18 U.S.C. § 922
(d)(3) by providing firearms and
ammunition to an unlawful user of a controlled substance. Paola argued in a
motion to dismiss, and the District Court ultimately agreed, that
§§ 922(g)(3) and 922(d)(3) were facially unconstitutional and that
§ 922(g)(3) was unconstitutional as applied to her under the Second
Amendment.
This appeal asks us to consider whether Paolaâs Second Amendment
rights were infringed, and the answer depends on whether § 922(g)(3) is
consistent with our history and tradition of firearms regulation. The short of
it is that our history and tradition may support some limits on a presently
intoxicated personâs right to carry a weapon (and for that reason Paolaâs
facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support
disarming a sober person based solely on past substance usage. Nor, contrary
to what the government contends, do restrictions on the mentally ill or more
generalized traditions of disarming âdangerousâ persons apply to
nonviolent, occasional drug users when of sound mind. We AFFIRM as to
Paolaâs as-applied challenge and REVERSE as to her facial challenges.
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I. Background
On December 28, 2021, El Paso police officers responded to a report
of shots fired at Paola Connellyâs home. Dispatch informed responding
officers that a conflict arose between Paolaâs husband, John, and their
neighbor. The neighbor reported that John came to his door with a machete,
demanded he âapologizeâ for a perceived slight, then left before returning
with a shotgun.
Officers heard several shots upon arriving, saw John at the neighborâs
door, and arrested him after he dropped the shotgun and attempted to
escape. Officers then went to the Connellysâ house and spoke with Paola
before conducting a sweep. Paola told officers that John and the neighbor
used crack and powdered cocaine together and that she would at times smoke
marijuana as a sleep aid and for anxiety. And the sweep revealed drug
paraphernalia and an array of unsecured firearms and ammunition strewn
about the home, including, in the bedroom, a pistol that Paola purchased.
Paola was indicted by a grand jury on two charges: (1) violating 18
U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2) violating18 U.S.C. § 922
(d)(3) by
providing firearms and ammunition to an unlawful user of a controlled sub-
stance. 1 The indictment also contained forfeiture allegations concerning the
guns and assorted ammunition found at the Connellysâ house as involved in
Paolaâs offense.
Paola moved to dismiss her indictment, arguing that New York State
Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) showed that
_____________________
1
The record is unclear as to what offensive conduct Paola undertook that merited
her being charged under § 922(d)(3).
3
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§§ 922(g)(3) and 922(d)(3) are unconstitutional under its historical analysis.
The District Court first denied that motion. Paola filed a motion to recon-
sider her motion to dismiss after this Court issued United States v. Rahimi, 61
F.4th 443(5th Cir. 2023) (âRahimi 2023â), revâd by United States v. Rahimi,144 S. Ct. 1889
(2024) (âRahimi 2024â). The District Court then agreed
with Paola, applying Rahimi 2023 and finding that §§ 922(g)(3) and 922(d)(3)
are facial violations of the Second Amendment and that § 922(g)(3) is uncon-
stitutional as applied to Connelly. The government timely appealed.
II. Standard of Review
Constitutional questions receive de novo review. United States v. Perez-
Macias, 335 F.3d 421, 425 (5th Cir. 2003).
III. Discussion
A. Evaluating Second Amendment challenges post-Rahimi 2024.
The Second Amendment protects the right of individuals to âkeep
and bearâ firearms for their self-defense. U.S. Const. amend. II. Indeed,
âthe right to keep and bear arms is among the âfundamental rights necessary
to our system of ordered liberty.ââ Rahimi 2024, 144 S. Ct. at 1897 (quoting
McDonald v. Chicago, 561 U.S. 742, 778(2010)); see alsoid.
(quoting Cong. Globe, 40th Cong., 2d Sess., 1967 (1868) (statement of Rep. Stevens)) (âAs a leading and early proponent of emancipation observed, âDisarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.ââ). â[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct.â Bruen,597 U.S. at 17
. ââLike most rights,â though, âthe right secured by the Second Amendment is not unlimited.ââ Rahimi 2024, 144 S. Ct. at 1897 (quoting District of Columbia v. Heller,554 U.S. 570, 626
(2008)).
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We look to our nationâs ââhistorical tradition of firearm regulationâ to
help delineate the contours of the right,â id.(quoting Bruen,597 U.S. at 17
), and ask âwhether the challenged regulation is consistent with the principles that underpin our regulatory tradition,âid.
at 1898 (citing Bruen, 597 U.S. at 26â31). To do this, we must âascertain whether the new law is ârelevantly similarâ to laws that our tradition is understood to permit, âapply[ing] faithfully the balance struck by the founding generation to modern circumstances.ââId.
(quoting Bruen,597 U.S. at 29
) (alteration original). âWhy and how the regulation burdens the right are central to this inquiry.âId.
(citing Bruen, 597 U.S at 29) (emphasis added).
âWhyâ and âhowâ a regulation burdens the right presents two
separate questions. Rahimi 2024 gives the following guidance for determining
whether a regulation presents a sufficiently historically similar âwhyâ: âif
laws at the Founding regulated firearm use to address particular problems,
that will be a strong indicator that contemporary laws imposing similar
restrictions for similar reasons fall within a permissible category.â Id.And it provides the below for determining whether a challenged law employs a sufficiently historically similar âhowâ: âa law . . . may not be compatible with the right if it [is regulated] to an extent beyond what was done at the Founding[,]â âeven when [that] law regulates arms-bearing for a permissible reason.âId.
(emphasis added).
The caselaw thus prescribes a two-step process for Second
Amendment challenges. First, we ask whether the Second Amendmentâs
plain text covers an individualâs conduct. Bruen, 597 U.S. at 17. Second, we ask âwhether the challenged regulation is consistent with the principles that underpin our regulatory tradition.â Rahimi 2024, 144 S. Ct. at 1898 (citing Bruen, 597 U.S. at 26â31). It is the governmentâs burden to demonstrate that the challenged regulation is âârelevantly similarâ to laws our tradition is understood to permit.â Id. (quoting Bruen,597 U.S. at 29
). It does so by
5
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finding and explicating âhistorical precursorsâ supporting the challenged
lawâs constitutionality. Id.
The challenged and historical laws are ârelevantly similarâ if they
share a common âwhyâ and âhowâ: they must both (1) address a
comparable problem (the âwhyâ) and (2) place a comparable burden on the
right holder (the âhowâ). Id.; Bruen, 597 U.S. at 27â30. The government
âneed not [present] a âdead ringerâ or âhistorical twinââ to be successful; it
can also present an analogous historical regulation with a sufficiently similar
âwhyâ and âhow.â Rahimi 2024, 144 S. Ct. at 1897â98 (quoting Bruen, 597
U.S. at 30). Deciding whether a conceptual fit exists between the old law and the new requires the exercise of both analogical reasoning and sound judgment.Id.
We hold the government to its heavy burden, as the Second Amendment âis not a second-class right.â Bruen,597 U.S. at 70
(quoting McDonald,561 U.S. at 780
) (emphasis added).
B. Paola is presumptively protected by the Second Amendment.
The threshold question is whether the Second Amendment applies to
Paola. The right to bear arms is held by âthe people.â U.S. Const. amend.
II. That phrase âunambiguously refers to all members of the political
community, not an unspecified subset.â Heller, 554 U.S. at 580. Indeed, the Bill of Rights uses the phrase âthe peopleâ five times. In each place, it refers to all members of our political community, not a special group of upright citizens.Id.
(citing United States v. Verdugo-Urquidez,494 U.S. 259, 265
(1990)); see also Rahimi 2024, 144 S. Ct. at 1903. Based on that consistent usage, Heller concluded that âthe Second Amendment right is exercised individually and belongs to all Americans.â Heller,554 U.S. at 581
(emphasis
added).
Marijuana user or not, Paola is a member of our political community
and thus has a presumptive right to bear arms. By infringing on that right,
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§ 922(g)(3) contradicts the Second Amendmentâs plain text. So we move to
the second step: whether history and tradition support § 922(g)(3) as applied
to Paola.
C. The governmentâs proffered historical evidence fails to support
§ 922(g)(3)âs constitutionality as applied to Paola.
The government offers three buckets of historical analogues as
support for § 922(g)(3)âs constitutionality: (1) laws disarming the mentally
ill, (2) laws disarming âdangerousâ individuals, and (3) intoxication laws.
We consider and reject each.
1. History and tradition surrounding laws disarming the mentally ill
do not address a problem comparable to § 922(g)(3).
The government offers Founding-era restrictions on mentally ill
personsâ Second Amendment rights as being ârelevantly similarâ to
§ 922(g)(3) as applied to Paola. Obviously, mental illness and drug use are
not the same thing. But at first glance one could draw an intuitive similarity:
those who are âbriefly mentally infirm as a result of intoxicationâ could be
considered similar to those âpermanently mentally infirmâ because of illness
or disability. Eugene Volokh, Implementing the Right to Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research Agenda, 56 U.C.L.A. L.
Rev. 1443, 1535 (2009). Closer examination dispels that notion.
There are no clear sets of positive-law statutes concerning mental
illness and firearms from the Founding. Indeed, â[o]ne searches in vain
through eighteenth-century records to find any laws specifically excluding
the mentally ill from firearms ownership.â Carlton F.W. Larson, Four
Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial
Ipse Dixit, 60 Hastings L.J. 1371, 1376 (2009). In fact, the federal ban on gun possession by those adjudged mentally ill was enacted no sooner than 1968, the same year as § 922(g)(3). See18 U.S.C. § 922
(g)(4); United States
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v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010). At best, scholars suggest that the
tradition was implicit at the Founding because, âin eighteenth-century
America, justices of the peace were authorized to âlock upâ âlunaticsâ who
were âdangerous to be permitted to go abroad.ââ Larson, 60 Hastings
L.J. at 1377 (citing Henry Care, English Liberties, or the Free-
born Subjectâs Inheritance 329 (6th ed. 1774)). Put otherwise: if
someone was so mentally ill that he presented a danger to themselves or
others and could therefore be imprisoned (a greater restriction on liberty), it
follows that he could also be disarmed (a lesser restriction). See id.
Of course, institutionalizing those so mentally ill that they present a
danger to themselves or others does not give clear guidance about which
lesser impairments are serious enough to warrant constitutional deprivations.
We can assume that marijuana intoxication is, for our purposes, most
analogous to short-term mental impairment. Dr. Benjamin Rushâwho
signed the Declaration of Independenceâsaid a âtemporary fit of madnessâ
was a symptom of drunkenness. 2 Benjamin Rush, An Inquiry into the Effects
of Ardent Spirits upon the Human Body and Mind 6 (8th ed., Boston, James
Lording 1823). And Thomas Cooley described drunkenness as a form of
âtemporary insanity.â Thomas M. Cooley, A Treatise on the Constitutional
Limitations Which Rest upon the Legislative Power of the American Union 660
n.1 (2d ed., Boston, Little Brown & Co. 1871). So, the same could be said of
intoxication via marijuana.
But laws designed to disarm the severely mentally ill do not justify
depriving those of sound mind of their Second Amendment rights. The
analogy stands only if someone is so intoxicated as to be in a state comparable
_____________________
2
We discuss why alcohol is the closest comparator and historical analogue available
in the section discussing intoxication laws below. See III(C)(3).
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to âlunacy.â Just as there is no historical justification for disarming citizens
of sound mind, there is no historical justification for disarming a sober citizen
not presently under an impairing influence. See infra III(C)(3) (discussing
same).
Continuing the comparison between the history and tradition of
regulating access of the severely mentally ill to firearms and the regulation of
intoxicated individualsâ Second Amendment rights shows that the
governmentâs position is untenable. 3 The Founders purportedly
institutionalized âlunaticsâ and stripped them of firearms yet allowed
alcoholics to carry firearms while sober (and possess them generally). See
infra III(C)(3) (discussing intoxication laws). And like historical intoxication
laws (which applied restrictions only to presently intoxicated persons, see
infra III(C)(3)), â[o]ur common law heritage has long recognized that mental
illness is not a permanent condition.â Tyler v. Hillsdale Cnty. Sheriff's Depât,
837 F.3d 678, 710(6th Cir. 2016) (Sutton, J., concurring) (evaluating relevant historical evidence under Heller,554 U.S. 570
) (citing William Blackstone, 1
Commentaries at *304â05; A. Highmore, A Treatise on the Law of
Idiocy and Lunacy 104 (1807)); see also Blackstone, 1 Commentaries, at
*304 (âFor the law always imagines that these accidental misfortunes may be
removed . . . .â); Highmore at 73 (âA lunatic is never to be looked upon as
irrecoverable.â).
Indeed, â[s]ince at least the time of Edward I (1239â1307), the English
legal tradition provided that those who had recovered their sanity should
_____________________
3
To be clear: we express no opinion on § 922(g)(4), which concerns disarming
mentally ill persons, or its constitutionality here. We examine the history and tradition
behind laws disarming the mentally ill as part of our analysis of the governmentâs attempt
to analogize these laws as supporting § 922(g)(3)âs application to Paola. And, for the
reasons discussed within, they do not.
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have their rights restored.â Tyler, 837 F.3d at 710(Batchelder, J., concurring) (citing Frederick Pollock & Frederic William Maitland, 1 The History of English Law Before the Time of Edward I 507â08 (1898)). Confinement of the mentally ill was limited to as âlong as such lunacy or disorder shall continue, and no longer.âId.
at 706 (quoting Care, supra, at 329) (emphasis added). âThis comports with the Founding-era conception of rights because that which a person recovered when he overcame a serious mental illness was his reason, the faculty necessary to exercise his rights.â Id. (citations omitted). Whenever the âlunatic recover[ed] his senses,â he could be reevaluated, deemed healthy, and have his legal rights restored. See Highmore, supra, at 73; see also, e.g., Note, In with the One Step, Out with the Circuit Split: Post-Bruen Analysis of18 U.S.C. § 922
(g)(4), 85 Ohio St. L.
J. 113, 135â39 (collecting and analyzing relevant historical sources). So again,
just as there is no historical justification for disarming citizens of sound mind
(including those adjudged mentally ill but who have been reevaluated and
deemed healthy, i.e., no longer under an impairing influence), there is no
historical justification for disarming sober citizens not presently under an
impairing influence. See infra III(C)(3) (discussing same in detail).
So we must ask: why was severe mental illness a reason the Founders
disarmed people, and is that âwhyâ ârelevantly similarâ to § 922(g)(3)? It is
not. The government highlights nothing demonstrating that laws designed to
confine (and consequently, disarm) those so severely mentally ill that they
presented a danger to themselves and others map onto § 922(g)(3)âs
rationale. Repeat marijuana users, like repeat alcohol users, are of sound
mind upon regaining sobriety, whereas those adjudged severely mentally ill
often require extensive treatment and follow-up examination before they can
be said to be of sound mind again. And § 922(g)(3) is not limited to those
judicially determined to be severely mentally ill (or âwho ha[ve] been
committed to a mental institutionâ) like those persons affected by
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§ 922(g)(4)ânot all members of the set âdrug usersâ have been adjudicated
as such (or found to require institutionalization).
So the Bruen-style analogical question is this: which is Paola more
like: someone whose mental illness is so severe that she presents a danger to
herself and others (i.e., someone who would be confined and deprived of
firearms under this tradition and history of Second Amendment regulation)?
Or a repeat alcohol user (who would not)? Paola falls into the latter camp.
While intoxicated, she may be comparable to a severely mentally ill person
whom the Founders would disarm. But, while sober, she is like a repeat
alcohol user between periods of intoxication, whom the Founders would not
disarm.
None of the regulatory tradition vis-Ă -vis the mentally ill supports
§ 922(g)(3) as applied to Paola. Perhaps the government could succeed if it
were able to demonstrate that the drugs Paola used were so powerful that
they rendered her permanently impaired in a way comparable to severe
mental illness. It also might succeed if it were able to demonstrate that
Paolaâs drug use was so regular and heavy that it rendered her continually
impaired. But it shows evidence of neither here.
In short, historical regulations disarming the mentally ill do not seek
to address a problem comparable to § 922(g)(3), so the government fails to
present a ârelevantly similarâ âwhyâ to support § 922(g)(3) as applied to
Paola. Rahimi 2024, 144 S. Ct. at 1898; Bruen, 597 U.S. at 27â30.
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2. History and tradition surrounding laws disarming âdangerousâ
individuals also do not address a problem comparable to § 922(g)(3).
The government also contends that persons whom Congress deems
âdangerousâ can have their Second Amendment rights stripped. In doing so,
it posits that Paolaâa non-violent marijuana userâfalls into the category of
âdangerous.â But our history and tradition of disarming âdangerousâ
persons does not include non-violent marijuana users like Paola. Indeed, not
one piece of historical evidence suggests that, at the time they ratified the
Second Amendment, the Founders authorized Congress to disarm anyone it
deemed dangerous. Instead, the government presents a collection of different
statutes disarming discrete groups of persons throughout history, which
suggest an abstract belief that oneâs right to bear arms could be stripped if he
were legitimately dangerous to the public.
The governmentâs examples fall into two groups. First, laws barring
political dissidents from owning guns in periods of conflict. For example,
many states barred those who refused to take an oath of allegiance during the
Revolutionary War from owning guns. See, e.g., 4 Journals of the Continental
Congress 201â06 (1906) (1776 resolution); 1775â76 Mass. Acts 479; 1777 Pa.
Laws 63;1777 N.C. Sess. Laws 231
; 1776â77 N.J. Laws 90. Second, laws that
disarmed religious minoritiesâespecially Catholics. See, e.g., 3 Jac. I, c.5, §§
16-18 (1605â06); 1 W. & M. c.15, §§ 3-4 (1688); 7 Will. III c.5 (1695)
(Ireland); Act of March 25, 1756, ch. 4, reprinted in 7 Statutes at
Large; Being a Collection of All the Laws of Virginia
from the First Session of the Legislature in the Year
1619, at 9, 35â36 (William Waller Hening ed., Richmond, Franklin Press
1820) (disarming âPapistsâ because it was âdangerous at this time to permit
[them] to be armedâ).
Each of these categories was based in part on concerns for public
safety, but each also had its own unique socio-political motivations. Laws
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disarming dissidents were passed during wartime or periods of
unprecedented societal upheaval. The Founders did not disarm English
Loyalists because they were believed to lack self-control; it was because they
were viewed as political threats to our nascent nationâs integrity. See Joseph
G.S. Greenlee, Disarming the Dangerous: The American Tradition of Firearm
Prohibitions, 16 Drexel L. Rev. 1, 60â63 (2024) (discussing, e.g., laws passed proximate to a 1776 Loyalist plot to assassinate George Washington). So too with laws disarming religious minoritiesâthe perceived threat was as political as it was religious, if not even more so.Id.
at 36â46.
The government also offers the English Militia Act of 1662 as support,
which gave officials sweeping power to designate someone as âdangerousâ
and so disarm him. But the Actâs history shows that it merely served as cover
for the widespread disarmament of Charles IIâs and James IIâs political
opponents. Nelson Lund, The Past and Future of the Individual's Right to Arms,
31 Ga. L. Rev. 1, 8 (1996) (discussing same in greater detail). And it was
reined in rather quickly too.
After the Glorious Revolution, which enthroned Protestants William
and Mary, the Declaration of Rights, codified as the 1689 English Bill of
Rights, qualified the Militia Act by guaranteeing â[t]hat the subjects which
are Protestants may have arms for their defence suitable to their Conditions
and as allowed by Law.â 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441.
âThis right,â which restricted the Militia Actâs reach in order to prevent the
kind of politically motivated disarmaments pursued by Charles II and James
II, âhas long been understood to be the predecessor to our Second
Amendment.â Heller, 554 U.S. at 593. And âwhen it comes to interpreting the Constitution, not all history is created equal. âConstitutional rights are enshrined with the scope they were understood to have when the people adopted them.ââ Bruen,597 U.S. at 4
(quoting Heller,554 U.S. at 599
)
(emphasis original). So the Militia Act, passed to disarm political dissidents
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and reined in well before the Founding by the English Bill of Rights, almost
certainly does not survive the Second Amendmentâs categorical command,
at least vis-Ă -vis offering a âwhyâ comparable to § 922(g)(3).
Nevertheless, an undeniable throughline runs through these sources:
Founding-era governments took guns away from those perceived to be
dangerous. Indeed, Rahimi 2024 discusses this history vis-à -vis § 922(g)(8),
which affirms the idea âthat the government may disarm an individual
temporarily after a âjudicial determinatio[n]â that he âlikely would threaten
or ha[s] threatened another with a weapon.ââ See 144 S. Ct. at 1908
(Gorsuch, J., concurring) (quoting majority op. at 1902) (alteration original).
So we must ask: why were the groups disarmed at the Founding considered
to be dangerous and therefore disarmed, and is that âwhyâ ârelevantly
similarâ to § 922(g)(3)?
It is not. The government identifies no class of persons at the
Founding who were âdangerousâ for reasons comparable to marijuana users.
Marijuana users are not a class of political traitors, as English Loyalists were
perceived to be. Nor are they like Catholics and other religious dissenters
who were seen as potential insurrectionists.
And § 922(g)(3) is not limited to those judicially determined to have
had a history of violent behavior (or a propensity to engage in same) like those
persons discussed in Rahimi 2024ânot all members of the set âdrug usersâ
are violent. As applied, the government has not shown how Paolaâs marijuana
use predisposes her to armed conflict or that she has a history of drug-related
violence.
Even as the Founders disarmed Catholics and politically disaffected
citizens, they left ordinary drunkards unregulated. See III(C)(3) (discussing
same). The government provides no meaningful response to the fact that
neither Congress nor the states disarmed alcoholics, the group most closely
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analogous to marijuana users in the 18th and 19th centuries. As with the
analogy to mental illness, we must ask: Which are marijuana users more like:
British Loyalists during the Revolution? Or repeat alcohol users? The answer
is clearly the latter, so the governmentâs attempt to analogize non-violent
marijuana users to âdangerousâ persons fails to present a ârelevantly
similarâ âwhy.â Rahimi 2024, 144 S. Ct. at 1898; Bruen, 597 U.S. at 27â30.
3. History and tradition surrounding intoxication laws may address a
problem comparable to § 922(g)(3), but do not impose a comparable
burden in doing so.
There was very little regulation of drugs (related to firearm possession
or otherwise) until the late 19th century, so intoxication via alcohol is the
next-closest âhistorical analogueâ that we can look to. See, e.g., David F.
Musto, The American Experience with Stimulants and Opiates, 2 Persps. on
Crime & Just. 51, 51 (1998) (â[M]ost [non-alcoholic] drugs were not
familiar products early in the 19th century . . . .â); Richard J. Bonnie &
Charles H. Whitebread, II, The Forbidden Fruit and the Tree of Knowledge: An
Inquiry into the Legal History of American Marijuana Prohibition, 56 Va. L.
Rev. 971, 985â87, 1010â11 (1970) (describing how American society gradually realized the social effects of narcotics in the late 1800s and began regulating them at the turn of the century);id. at 1011
(â[From 1914â31], we
can find no evidence of public concern for, or understanding of, marijuana,
even in those states that banned it. . . . Observers in the middle and late 1930âs
agreed that marijuana was . . . a very new phenomenon on the national
scene.â). And early Americans, including the Founders, consumed copious
amounts of alcohol. 4
_____________________
4
For example, Thomas Jefferson, an avid wine connoisseur, once wrote that the
âlight and high flavored winesâ were a ânecessary of lifeâ for him. Letter from Thomas
Jefferson to Thomas Appleton (Jan. 14, 1816), Natâl Archives,
https://founders.archives.gov/documents/Jefferson/03-09-02-0222) (last visited August
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The Founders were well familiar with the commonsense notion that
those presently impaired by alcohol lack the restraint needed to handle
firearms safely. See Rush, supra, at 6. It is unsurprising that historical laws
dealing with firearms and alcohol exist, and these rules are relevant to our
history and tradition of gun regulation. But as discussed below, the
government can identify no laws at the Founding that approximate
§ 922(g)(3). The closest it gets is pointing us to laws passed by a few states
after the Civil War barring carrying weapons while under the influence.
These non-Founding era historical laws are of, at best, limited utility. See
Bruen, 597 U.S. at 4. But more than that, while this may show that some laws
banned carrying weapons while under the influence, none barred gun
possession by regular drinkers.
i. Founding-era laws.
Founding-era laws concerning guns and alcohol were few, and
primarily concerned with (1) misuse of weapons while intoxicated and (2)
_____________________
8, 2024). And only a few days before the Constitutionâs signing, a volunteer cavalry corps
that crossed the Delaware River with George Washington during the Revolutionary War
held a farewell party for him at The City Tavern in Philadelphia. According to the eveningâs
bar tab, the 55 attendees ordered â54 bottles of Madeira, 60 bottles of Claret, 8 bottles of
whiskey, 8 bottles of cider, 12 bottles of beer and 7 large bowls of punch.â Bill for an
Evening of Entertainment for George Washington - 14 September 1787, Quill Project,
https://www.quillproject.net/resources/resource_item/38/3109 (last visited August 8,
2024). After retiring to Mount Vernon, Washington operated one of the largest and most
profitable distilleries in the nation, which once produced 11,000 gallons of whiskey in a
single year. Ten Facts About the Distillery, Monticello, https://www.mountvernon.org/the-
estate-gardens/distillery/ten-facts-about-the-distillery/ (last visited August 8, 2024) (âIn
1799, Washingtonâs Distillery produced almost 11,000 gallons of whiskey, valued at $7,500
(approximately $120,000 today.)â). See also, e.g., Letter from John Adams to William
Willis (Feb. 21, 1819), in 10 The Works of John Adams, Second President of the United
States 365, 365 (Charles Francis Adams ed., Boston, Little, Brown & Co. 1856) (claiming
that Americans âexceed all other and millions of people in the world in this degrading,
beastly vice of intemperance.â); Musto, supra, at 52 (finding that â[i]n the early Republic,â
there was âan extremely high level of alcohol consumption (chiefly, distilled spirits)â).
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disciplining state militias. For example, a 1655 Virginian law banned
âshoot[ing] and gunns at drinkeing.â Acts of Mar. 10, 1655â56, Act 12,
reprinted in 1 The Statutes At Large; Being a Collection of
All the Laws of Virginia, from the First Session of the
Legislature in the Year 1619, at 401, 401â02 (William Waller
Hening ed., New York, R. & W. & G. Bartow 1823). But this statute is not
like § 922(g)(3). Virginia passed this statute explicitly as a gunpowder
preservation measure (which was at a premium), and because ill-timed
gunshots could be mistaken as a signal that Natives were attacking. 5 But not
only was this statute enacted for a different purpose than was § 922 (g)(3), it
did not ban gun carry or even possessionâit only prevented colonists from
misusing the guns they did have while they were drinking.
The government also offers a 1771 law from New York, which banned
citizens from firing guns during New Yearâs celebrations. Act of Feb. 16,
1771, ch. 1501, reprinted in 5 The Colonial Laws of New York
from the Year 1664 to the Revolution 244, 244â245 (Albany,
James B. Lyon 1894). But while this law was passed for a similar purpose as
§ 922 (g)(3)âpreventing the âgreat Damagesâ done by those âintoxicated
with Liquorââit was very narrow. Id. It applied only three days out of the
year, only prevented firing guns (not possessing or carrying them), and
applied only to those under the influence, not habitual drinkers. Id.
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5
According to the statute, the misuse of weapons while intoxicated furthered âthat
beastly vice[:] spending much powder in vaineâ instead of âreserve[ing] [it] against the
comon enemie,â âthe Indians.â Acts of Mar. 10, 1655â56, Act 12, reprinted in 1 The
Statutes at Large 401. Plus, â[t]he only means for the discovery of [Indian] plotts is
by allarms, of which no certainty can be had in respect of the frequent shooting of gunns in
drinking.â Id. at 401. The 1656 law was a descendant of a 1632 law, which prevented
âspend[ing] powder unnecessaril[y] . . . in dringinge or enterteynments.â Acts of Feb. 24,
1631â32, Act 50, reprinted in 1 The Statutes at Large 155, 173.
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Beyond these generally inapposite colonial statutesâseparated by
over a centuryâthe government offers no Founding-era law or practice of
disarming ordinary citizens for drunkenness, even if their intoxication was
routine. Instead, it offers laws regulating militia service.
For example, soldiers in New Jersey could be âdisarm[ed]â if they
appeared for militia service âdisguised in Liquor.â Act of May 8, 1746, ch.
200, § 3, reprinted in Acts of the General Assembly of the
Province of New-Jersey 140, 140â41 (Samuel Allison ed., Burlington,
Isaac Collins 1776). Pennsylvania passed a similar act. See Act of Mar. 20,
1780, ch. 902, § 45, reprinted in 2 Military Obligation: The
American Tradition, pt. 11, at 75, 97 (Arthur Vollmer ed., 1947) (â[I]f
any non-commissioned officer or private shall . . . be found drunk . . . he shall
be disarmed . . . until the company is dismissed . . . .â).
Again, this comparison misses the mark. The purpose behind these
militia laws concerns military serviceâintoxicated servicemembers cannot
perform their duties while impaired. More than that, these laws applied only
to militia members; none of them spoke to a militia memberâs ability to carry
outside of military service. Then, as today, restrictions on the liberties of
service members tell us little about the limits acceptable for citizens at large.
Considering the âextremely high level of alcohol consumptionâ â[i]n
the early Republic,â this handful of generally inapposite laws does little to
help the governmentâs position. Musto, supra, at 52. The government fails to
identify any relevant Founding-era tradition or regulation disarming ordinary
citizens who consumed alcohol.
ii. Post-Reconstruction laws.
Again, âwhen it comes to interpreting the Constitution, not all history
is created equal. âConstitutional rights are enshrined with the scope they
were understood to have when the people adopted them.ââ Bruen, 597 U.S. at 4
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(quoting Heller, 554 U.S. at 599) (emphasis original). And âbecause post- Civil War discussions of the right to keep and bear arms âtook place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.ââId.
at 36 (quoting Heller,
544 U.S. at 614). So, âwe must . . . guard against giving postenactment [sic]
history more weight than it can rightly bear.â Id. at 35.
With that in mind, the governmentâs proffered Reconstruction-era
evidence does little to validate § 922(g)(3) as applied to Paola: three states,
between 1868 and 1883, barred citizens from carrying guns while drunk:
Kansas, Missouri, and Wisconsin. See 1867 Kan. Sess. Laws 25;Mo. Rev. Stat. § 1274
(1879);1883 Wis. Sess. Laws 290
. It also offers a similar Idahoan law from even later in time.1909 Idaho Sess. Laws 6
. These laws come closer
to supporting § 922(g)(3), but there are notably few.
Thatâs a problem for the government. Bruen doubted that three
colonial-era laws could suffice to show a tradition. 597 U.S. at 46(âFor starters, we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation.â) (emphasis original). Offering three laws passed scores of years post-Ratification (and a fourth passed nearly half a century beyond that) misses the mark by a wide margin. Seeid.
at 35â36.
* * *
Boiled down, § 922(g)(3) is much broader than historical intoxication
laws. These laws may address a comparable problemâpreventing
intoxicated individuals from carrying weaponsâbut they do not impose a
comparable burden on the right holder. In other words, they pass the âwhyâ
but not the âhowâ test. See Rahimi 2024, 144 S. Ct. at 1898; Bruen, 597 U.S.
at 27â30. Taken together, the statues provide support for banning the carry
of firearms while actively intoxicated. Section 922(g)(3) goes much further: it
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bans all possession, and it does so for an undefined set of âuser[s],â even
while they are not intoxicated.
As applied to Paola, § 922(g)(3) restricts her rights more than would
any of the historical and traditional laws highlighted by the government.
While older lawsâ bans on âcarryâ may be analogous to § 922(g)(3)âs ban on
âpossess[ion],â there is a substantial difference between an actively
intoxicated person and an âunlawful userâ under § 922(g)(3). The statutory
term âunlawful userâ captures regular marijuana users, but the temporal
nexus is most generously described as vagueâit does not specify how
recently an individual must âuseâ drugs to qualify for the prohibition. See 27
C.F.R. § 478.11 (defining terms in § 922(g)(3)) (âA person may be an
unlawful current user of a controlled substance even though the substance is
not being used at the precise time the person . . . possesses a firearm.â).
Stunningly, an inference of âcurrent useâ can be drawn even from âa
conviction for use or possession of a controlled substance within the past
year.â Id. (emphasis added).
Paola stated that she would at times partake as a sleep aid or to help
with anxiety, but we do not know how much she used at those times or when
she last used, and there is no evidence that she was intoxicated at the time
she was arrested. Indeed, under the governmentâs reasoning, Congress could
(if it wanted to) ban gun possession by anyone who has multiple alcoholic
drinks a week from possessing guns based on the intoxicated carry laws.
The analogical reasoning Bruen and Rahimi 2024 prescribed cannot
stretch that far. The history and tradition before us support, at most, a ban
on carrying firearms while an individual is presently under the influence. By
regulating Paola based on habitual or occasional drug use, § 922(g)(3)
imposes a far greater burden on her Second Amendment rights than our
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history and tradition of firearms regulation can support. We AFFIRM the
judgment of dismissal as to Paolaâs as-applied challenge.
D. § 922(g)(3) is facially constitutional.
Paola also levied a facial challenge at § 922(g)(3). A facial
constitutional challenge is the ââmost difficult challenge to mount
successfully,â because it requires a defendant to âestablish that no set of
circumstances exists under which the Act would be valid.ââ Rahimi 2024,
144 S. Ct. at 1898 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987))
(emphasis added). Facial challenges should âconsider the circumstances in
which [the challenged act i]s most likely to be constitutionalâ because âwhen
legislation and the Constitution brush up against each other, a courtâs task is
to seek harmony, not to manufacture conflict.â Id. at 1903 (cleaned up).
âThat means that to prevail, the Government need only demonstrate that
Section 922(g)([3]) is constitutional in some of its applications.â Id.
The government made such a demonstration. As discussed above, our
history and tradition of firearms regulation show that there are indeed some
sets of circumstances where § 922(g)(3) would be valid, such as banning
presently intoxicated persons from carrying weapons. See supra III(C)(3)
(discussing intoxication laws). Because there are at least some circumstances
where § 922(g)(3) is constitutional, Paolaâs facial challenge fails and we
REVERSE.
E. § 922(d)(3) is facially constitutional.
Paola also levied a facial challenge at § 922(d)(3), but that fails because
§ 922(d)(3) is a straightforward extension of § 922(g)(3) in at least one
respect. The latter prohibits the possession of firearms by someone unlawfully
using controlled substances while the former prohibits the transfer of firearms
to someone unlawfully using controlled substances. Put otherwise, if one can
be indicted for being presently intoxicated when arrested with a firearm
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without violating the Second Amendment, see III(D), it follows that one could
be similarly indicted for providing a presently intoxicated individual with a
firearm. For this reason, the historical evidence that supports § 922(g)(3)âs
facial constitutionality supports § 922(d)(3)âs too. See Rahimi 2024, 144 S.
Ct. at 1897â98 (holding that the government âneed not [present] a âdead
ringerâ or âhistorical twinââ to be successful but can also present an
analogous historical regulation with a sufficiently similar âwhyâ and
âhow.â). Because there are at least some instances where § 922(d)(3) may
be constitutionally applied, Paolaâs facial challenge fails and we REVERSE.
See id. at 1903.
IV. Conclusion
Paolaâs § 922(g)(3) charge is inconsistent with our history and
tradition of firearms regulations for the reasons discussed above, so we
AFFIRM the judgment of dismissal as to her as-applied challenge. But that
holding is narrow. There undoubtedly exist circumstances where § 922(g)(3)
may apply constitutionally, such as when it bans a presently intoxicated
person from carrying firearms, so we REVERSE as to Paolaâs facial
challenge. Finally, we REVERSE as to Paolaâs facial challenge to
§ 922(d)(3).
22