United States v. Daniels

Case: 22-60596 Document: 00516852540 Page: 1 Date Filed: 08/09/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED August 9, 2023 No. 22-60596 Lyle W. Cayce ____________ Clerk United States of America, Plaintiff—Appellee, versus Patrick Darnell Daniels, Jr., Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:22-CR-58-1 ______________________________ Before Smith, Higginson, and Willett, Circuit Judges.

Jerry E. Smith, Circuit Judge: Title 18 U.S.C. § 922(g)(3) bars an individual from possessing a fire- arm if he is an “unlawful user” of a controlled substance. Patrick Daniels is one such “unlawful user”—he admitted to smoking marihuana multiple days per month. But the government presented no evidence that he was intoxi- cated at the time of arrest, nor did it identify when he last had used mari- huana. Still, based on his confession to regular usage, a jury convicted Dan- iels of violating § 922(g)(3).

The question is whether Daniels’s conviction violates his right to bear Case: 22-60596 Document: 00516852540 Page: 2 Date Filed: 08/09/2023

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arms. The answer depends on whether § 922(g)(3) is consistent with our nation’s “historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is a close and deeply challenging question.

Throughout American history, laws have regulated the combination of guns and intoxicating substances. But at no point in the 18th or 19th cen- tury did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another. A few states banned carrying a weapon while actively under the influence, but those statutes did not emerge until well after the Civil War. Section 922(g)(3)—the first federal law of its kind— was not enacted until 1968, nearly two centuries after the Second Amend- ment was adopted.

In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more gen- eralized traditions of disarming dangerous persons support this restriction on nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the Second Amendment. We reverse the judgment of conviction and render a dismissal of the indictment.

I.

In April 2022, two law enforcement officers pulled Daniels over for driving without a license plate. One of the officers—an agent with the Drug Enforcement Administration (“DEA”)—approached the vehicle and recog- nized the smell of marihuana. He searched the cabin and found several mari- huana cigarette butts in the ashtray. In addition to the drugs, the officers found two loaded firearms: a 9mm pistol and a semi-automatic rifle. Daniels was taken into custody and transported to the local DEA office.

At no point that night did the DEA administer a drug test or ask Case: 22-60596 Document: 00516852540 Page: 3 Date Filed: 08/09/2023

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Daniels whether he was under the influence; nor did the officers note or tes- tify that he appeared intoxicated. But after Daniels was Mirandized at the station, he admitted that he had smoked marihuana since high school and was still a regular user. When asked how often he smoked, he confirmed he used marihuana “approximately fourteen days out of a month.”

Based on his admission, Daniels was charged with violating 18 U.S.C. § 922(g)(3), which makes it illegal for any person “who is an unlawful user of or addicted to any controlled substance . . . to . . . possess . . . any firearm.”

An “unlawful user” is someone who uses illegal drugs regularly and in some temporal proximity to the gun possession. See United States v. McCowan, 469 F.3d 386, 392 (5th Cir. 2006).

While Daniels was under indictment, the Supreme Court decided Bruen. It clarified that firearms regulations are unconstitutional unless they are firmly rooted in our nation’s history and tradition of gun regulation. See S. Ct. at 2129–30. Daniels immediately moved to dismiss the indictment, claiming that § 922(g)(3) is unconstitutional under that new standard.

The district court denied the motion. See United States v. Daniels, 610 F. Supp. 3d 892, 892 (S.D. Miss. 2022). It expressed some doubt that Daniels was part of “the people” whom the Second Amendment protects, as Daniels was not a “law abiding, responsible citizen[].” Id. at 894. Neverthe- less, assuming that Daniels had a right to bear arms, the court found that § 922(g)(3) was a longstanding gun regulation. See id. at 895. It compared § 922(g)(3) to laws disarming felons and the mentally ill that Heller called “presumptively lawful.” Id. at 895 (quoting District of Columbia v. Heller, 554 U.S. 570, 627 n.26 (2008)). Congress passed § 922(g)(3) in 1968, only after many states had similarly banned habitual drug abusers from possessing guns. Id. at 896. The district court placed great weight on that regulatory tradition. It engaged with few historical sources from the Founding or Case: 22-60596 Document: 00516852540 Page: 4 Date Filed: 08/09/2023

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Reconstruction, but it relied on statements from other courts—notably all predating Bruen—that § 922(g)(3) was supported by the historical practice of disarming those who “exhibit a dangerous lack of self-control.” Id. at 897.

A jury found Daniels guilty. He was sentenced to nearly four years in prison and three years of supervised release. By nature of his § 922(g)(3) felony, Daniels is also barred for life from possessing a firearm. See 18 U.S.C. § 922(g)(1).

Daniels appeals his conviction, reasserting the Second Amendment challenge that he raised before trial. 1 As with all constitutional questions, we consider the issue de novo. United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).

II.

The Second Amendment protects the right of individuals to “keep and bear” firearms for their self-defense. U.S. Const. amend. II; see Hel- ler, 554 U.S. at 595. But even fundamental rights have limits. See Bruen, 142 S. Ct. at 2128. Before Bruen, our circuit evaluated the legality of gun restrictions using the familiar standards of scrutiny. See United States v. McGinnis, 956 F.3d 747, 753–54 (5th Cir. 2020). If legislation infringed on the historical right to bear arms, we asked whether the government had a suf- ficiently strong interest and whether its firearm regulation was sufficiently tailored. If a law breached the core of the Second Amendment liberty, we applied strict scrutiny; if not, we applied intermediate scrutiny. Id. at 754.

Bruen, 142 S. Ct. at 2129−31, decisively rejected that kind of analysis.

In place of means-end balancing, Bruen “requires” us to interpret the Second Case: 22-60596 Document: 00516852540 Page: 5 Date Filed: 08/09/2023

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Amendment in light of its original public meaning. Id. at 2126, 2131. As the Court explained, the Second Amendment codified a “pre-existing right” with pre-existing limits. Id. at 2127 (quoting Heller, 554 U.S. at 592). To ascertain those limits, history is our heuristic. Because historical gun regulations evince the kind of limits that were well-understood at the time the Second Amendment was ratified, a regulation that is inconsistent with those limits is inconsistent with the Second Amendment. Id. To determine whether a modern firearms law is unconstitutional, we now proceed in two steps. First, we ask whether the Second Amendment applies by its terms. Id. at 2129–30. “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 2126. Second, we ask whether a given gun restriction is “consistent with the Nation’s historical tradition of firearm regulation.” Id. at 2130. The government bears the burden of demonstrating a tradition supporting the challenged law. Id. at 2130. Only by showing that the law does not tread on the historical scope of the right can the government “justify its regulation.” Id. The second step requires both close attention to history and analogical reasoning. Bruen did not forswear all legislative innovation. To the contrary, “the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.” Id. at 2132. What we are looking for is a “tradition”—well-accepted limits on the right to bear arms manifested by a tangible practice of comparable gun regulations. But how do we know whether an older regulatory practice is “comparable”?

Bruen helpfully gave us two conceptual pathways. If the modern regu- lation addresses “a general societal problem that has persisted since the 18th century,” then “the lack of a distinctly similar historical regulation address- ing that problem is relevant evidence that the challenged regulation is incon-

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No. 22-60596 sistent with the Second Amendment.” Id. at 2131. But if a modern law addresses “unprecedented societal concerns or dramatic technological changes,” it calls for a “more nuanced approach.” Id. at 2132. We must reason by analogy to determine whether older regulations are “relevantly similar” to the modern law. Id. Bruen acknowledged the difficulty of determining whether two laws are “relevantly similar.” Id. Bruen clarified that two laws are “relevantly similar” if they share a common “why” and “how”; they must both address a comparable problem (the “why”) and place a comparable burden on the rightsholder (the “how”). Id. at 2132–33.

In all of that, Bruen reminded us that we are looking for a “represen- tative historical analogue, not a historical twin.” Id. at 2133 (emphasis removed). It is not a death knell to the government that the challenged regulation did not previously exist. What matters is whether a conceptual fit exists between the old law and the new. Deciding whether there is a match between historical and modern regulations requires the exercise of both analogical reasoning and sound judgment. Nevertheless, we hew closely to Bruen’s own reasoning and hold the government to its heavy burden.

A.

We begin with the threshold question: whether the Second Amend- ment even applies to Daniels.

The right to bear arms is held by “the people.” U.S. Const. amend. II. That phrase “unambiguously refers to all members of the political community, not an unspecified subset.” Heller, 554 U.S. at 580. Indeed, the Bill of Rights uses the phrase “the people” 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)). Based on that consistent usage, Heller concluded that “the Second Case: 22-60596 Document: 00516852540 Page: 7 Date Filed: 08/09/2023

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Amendment right is exercised individually and belongs to all Americans.”

Heller, 554 U.S. at 581 (emphasis added).

Even as a marihuana user, Daniels is a member of our political com- munity. Therefore, he has a presumptive right to bear arms. By infringing on that right, § 922(g)(3) contradicts the plain text of the Second Amendment.

True, Heller described the Second Amendment as applying to “law- abiding, responsible citizens.” Heller, 554 U.S. at 635. And Bruen used the phrase “law-abiding” fourteen times, including in the opening sentence, where it says that the Second Amendment “protect[s] the right of an ordin- ary, law-abiding citizen to possess a handgun.” 142 S. Ct. at 2122 (emphasis added). The government seizes on that language and insists that the Second Amendment does not extend to Daniels because he is a criminal.

But we cannot read too much into the Supreme Court’s chosen epi- thet. More than just “model citizen[s]” enjoy the right to bear arms. United States v. Rahimi, 61 F.4th 443, 453 (5th Cir. 2023), cert. granted, No. 22-915, 2023 WL 4278450 (June 30, 2023). Indeed, Rahimi held that citizens accused of domestic violence still had Second Amendment rights. It reasoned that when Heller and Bruen used the phrase “law-abiding,” it was just “short- hand” to “exclude from the . . . discussion” the mentally ill and felons, peo- ple who were historically “stripped of their Second Amendment rights.” Id. at 452. All others are presumptively included in the Second Amend- ment’s ambit. Because Daniels is not a felon or mentally ill, Rahimi’s treat- ment of the “law-abiding” moniker suggests that he has presumptive Second Amendment rights as well.

Still, Heller’s and Bruen’s emphasis on “law-abiding” citizens hints that Congress and state legislatures have greater latitude to limit the gun lib- erties of the lawless. But, as a general rule, limitations on the Second Amend-

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No. 22-60596 ment come from the traditionally understood restrictions on the right to bear arms, not because ordinary citizens are categorically excluded from the privi- lege. See Rahimi, 61 F.4th at 453. 2 Once we conclude that Daniels has presumptive Second Amendment rights, the focus shifts to step two of the Bruen analysis: whether history and tradition support § 922(g)(3).

B.

Before we decide whether § 922(g)(3) is consistent with our tradition of gun regulation, we must first ask a methodological question: What kind of similarity are we looking for? “Distinct” similarity or a less precise “rele- vant” similarity? See Bruen, 142 S. Ct. at 2131–32. That depends on whether § 922(g)(3) “addresses a general societal problem that has persisted since the 18th century” or an “unprecedented societal concern[]” that the Founding generation did not experience. Id. at 2131–32.

Bruen does not require more than “relevant” similarity here. It is true that the Founding generation was familiar with intoxication via alcohol, 3 and it was familiar with marihuana plants. 4 But the Founders grew hemp to make Case: 22-60596 Document: 00516852540 Page: 9 Date Filed: 08/09/2023

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rope. 5 They were not familiar with widespread use of marihuana as a nar- cotic, nor the modern drug trade. 6 Thus, though intoxication generally was a persistent social problem, see Bruen 142 S. Ct. at 2131, the Founding gen- eration had no occasion to consider the relationship between firearms and intoxication via cannabis. 7 Although marihuana might be comparable in some ways to alcohol or tobacco, merely by making the comparison we have moved past the hunt for a distinctly similar law and are engaged in analogical reasoning.

Indeed, Bruen’s discussion of “distinct” and “relevant” similarity seems aimed at interpreting historical silence. That is, when the historical Case: 22-60596 Document: 00516852540 Page: 10 Date Filed: 08/09/2023

No. 22-60596 record reveals no regulations of a particular kind, we could interpret that silence in one of two ways. We could say that it means nothing (i.e., neither approval nor disapproval), or we could count silence as evidence that the public did not approve of such a regulation. Bruen says we should make the latter inference, at least when the public experienced the harm the modern- day regulation attempts to address. Bruen, 142 S. Ct. at 2131. By contrast, when the ratifying public did not confront a particular harm, its failure to regulate it says little about whether it approved such regulation.

In that case, we look instead for analogues—similar harms that the Founding generation did confront and the regulations they used to address them. Id. at 2132. Just as Founding-era prohibitions on firearms in “sensitive places” can extend to “new and analogous sensitive places,” id. at 2133, we can compare the Founders’ treatment of one problem to new problems that the Founders could not have anticipated.

Even so, the government has the burden to find and explicate the historical sources that support the constitutionality of § 922(g)(3). Rahimi, 61 F.4th at 455 (citing Bruen, 142 S. Ct. at 2132–33). Here, the government’s proffered analogues fall into three general buckets: (1) statutes disarming intoxicated individuals, (2) statutes disarming the mentally ill or insane, and (3) statutes disarming those adjudged dangerous or disloyal. 8 Each deserves Case: 22-60596 Document: 00516852540 Page: 11 Date Filed: 08/09/2023

No. 22-60596 independent consideration.

1.

Because there was little regulation of drugs (related to guns or otherwise) until the late-19th century, 9 intoxication via alcohol is the next- closest comparator. Throughout the colonial period and into the 19th cen- tury, Americans drank alcohol—and lots of it. 10 Common sense indicates that individuals who are impaired by alcohol lack the self-restraint to handle deadly weapons safely. So it is unsurprising to find historical laws dealing with guns and alcohol. Such rules are relevant to our history and tradition of gun regulation.

Unfortunately for the government, that regulatory tradition is sparse and limited during the relevant time periods. Despite the prevalence of alco- hol and alcohol abuse, neither the government nor amici identify any restrictions at the Founding that approximate § 922(g)(3). Although a few states after the Civil War prohibited carrying weapons while under the influ- ence, none barred gun possession by regular drinkers.

a.

Founding-era statutes concerning guns and alcohol were few. They were also limited in scope and duration. The laws that did exist had two primary concerns: (1) the misuse of weapons while intoxicated and (2) the Case: 22-60596 Document: 00516852540 Page: 12 Date Filed: 08/09/2023

No. 22-60596 discipline of state militias.

Consider the first group of statutes. In 1656, Virginia banned “shoot[ing] any gunns at drinkeing.” 11 But in historical context, that was not a disarming regulation like § 922(g)(3). Virginia was a brand-new colony at the time. The 1656 statute was explicitly passed to conserve gunpowder, which was at a premium, and because ill-timed gunshots might be mistaken for a signal that local Indians were attacking. 12 Not only was the statute enacted for a different purpose, but it did not even ban gun possession or carry—it only prevented the colonists from misusing the guns they did have during bouts of drinking.

Another law, passed by New York in 1771, prohibited citizens from firing guns from December 31 to January 2 because of the “great Damages” done by those “intoxicated with Liquor” during New Year’s celebrations. 13

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The statute had a similar purpose as § 922(3) does—preventing public harm by individuals under the influence. Nevertheless, the law was strikingly nar- row. It applied on only three days out of the year; it only prevented firing guns (not possessing them); and it applied only to those under the influence, not habitual drinkers.

Beyond that duet of colonial regulations—separated by over a century—the government identifies no Founding-era law or practice of disarming ordinary citizens for drunkenness, even if that intoxication was routine.

Instead, the government points to a second group of statutes regulat- ing militia service. For example, a soldier could be “disarm[ed]” if he showed up for militia service in New Jersey “disguised in Liquor.” 14 Pennsylvania did the same in 1780. 15 For related reasons, dram shops were prohibited from selling to local soldiers. 16

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Those laws, however, are even less probative. For one thing, their purpose is different. They exist to ensure a competent military—a service- member cannot perform his duties if he is impaired. Furthermore, the limi- tations applied only to the militia; none of the laws spoke to the ability of militiamen to carry outside of their military service. At the Founding, as today, restrictions on the liberties of servicemen tell us little about the limits acceptable for the general public.

Given the prevalence of drinking at the Founding, that handful of laws puts the government on shaky footing. The government has failed to identify any relevant tradition at the Founding of disarming ordinary citizens who consumed alcohol.

b.

The government’s Reconstruction-era evidence, though stronger, still falls short of the history and tradition that could validate § 922(g)(3).

Between 1868 and 1883, three states prohibited carrying firearms while intoxicated: Kansas, Missouri, and Wisconsin. 17 Missouri’s law was Case: 22-60596 Document: 00516852540 Page: 15 Date Filed: 08/09/2023

No. 22-60596 challenged under the state constitution but was upheld by the Missouri Supreme Court. State v. Shelby, 2 S.W. 468 (Mo. 1886). The opinion ac- knowledged that the state constitution “secure[d] to the citizen the right to bear arms in the defense of his home, person, and property.” Id. at 469. But the court reasoned that if the state could regulate the “manner in which arms may be borne,” there is “no good reason . . . why the legislature may not do the same thing with reference to the condition of the person who carries such weapons.” Id. The ban on intoxicated carry was therefore “in perfect har- mony with the constitution.” Id. Those laws come closer to supporting § 922(g)(3), but they are notably few. The Bruen Court doubted that three colonial-era laws could suffice to show a tradition, let alone three laws passed eighty to ninety years after the Second Amendment was ratified. See 142 S. Ct. at 2142.

More fatally, § 922(g)(3) is substantially broader than the postbellum intoxication laws. On Bruen’s two axes of relevant similarity, the postbellum laws and § 922(g)(3) share a common “why”: preventing public harm by individuals who lack self-control and carry deadly weapons. 18 But the “how”

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No. 22-60596 is different. At most, the postbellum statutes support the banning the carry of firearms while under the influence. Section 922(g)(3) bans all possession, and it does so for an undefined set of “user[s],” even if they are not under the influence.

As applied to Daniels, § 922(g)(3) is a significantly greater restriction of his rights than were any of the 19th-century laws. Although the older laws’ bans on “carry” are likely analogous to § 922(g)(3)’s ban on “posses- s[ion],” 19 there is a considerable difference between someone who is actively intoxicated and someone who is an “unlawful user” under § 922(g)(3). The statutory term “unlawful user” captures regular users of marihuana, but its temporal nexus is vague—it does not specify how recently an individual must “use” drugs to qualify for the prohibition. 20 Daniels himself admitted to smoking marihuana fourteen days a month, but we do not know how much he used at those times, and the government presented no evidence that Daniels was intoxicated at the time he was found with a gun. Indeed, 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. The analogical reasoning Bruen pre- scribed cannot stretch that far.

A further problem with the Reconstruction-era statutes is precisely Case: 22-60596 Document: 00516852540 Page: 17 Date Filed: 08/09/2023

No. 22-60596 that they emerged during and after Reconstruction. Bruen did not discount the relevance of late-19th-century history, but it insisted that the Second Amendment’s “meaning is fixed according to the understandings of those who ratified it.” Bruen, 142 S. Ct. at 2132. A tradition cannot inform the original meaning of the Bill of Rights if it emerges one hundred years later.

Id.; see also id. at 2162–63 (Barrett, J., concurring). When 19th-century practice is inconsistent with the categorical protection of the Second Amend- ment, the “text controls.” Id. at 2137 (emphasis added).

Admittedly, there is an “ongoing scholarly debate” about whether the right to bear arms acquired new meaning in 1868 when it was incorporated against the states. Id. at 2137–38; see also McDonald v. City of Chicago, 561 U.S. 742, 750 (2010) (incorporating the Second Amendment against the states via the Fourteenth Amendment). But the instant case involves a fed- eral statute and therefore implicates the Second Amendment, not the Four- teenth. Even if the public understanding of the right to bear arms did evolve, it could not change the meaning of the Second Amendment, which was fixed when it first applied to the federal government in 1791. 21 And even if late-century practice sheds some dim light on Founding- era understandings, 22 the most the Reconstruction-era regulations support is a ban on gun possession while an individual is presently under the influence.

By regulating citizens like Daniels based on a pattern of drug use, § 922(g)(3)

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No. 22-60596 goes further. Our history and tradition do not support the leap.

2.

As an alternative, the government posits that the tradition of dis- arming the mentally ill supports § 922(g)(3). To quote Heller’s now-famous caveat, “longstanding prohibitions on the possession of firearms by . . . the mentally ill” are still “presumptively lawful.” 23 Obviously, mental illness and drug use are not the same thing. But there is an intuitive similarity: Those who are “briefly mentally infirm as a result of intoxication” are similar to those “permanently mentally infirm” because of illness or disability. 24 We note at the outset that there is not a clear set of positive-law stat- utes concerning mental illness and firearms. In fact, the federal ban on gun possession by those judged mentally ill was enacted in 1968, the same year as § 922(g)(3). See 18 U.S.C. § 922(g)(4); United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010). But scholars have suggested that the tradition was impli- cit at the Founding because, “in eighteenth-century America, justices of the peace were authorized to ‘lock up’ ‘lunatics’ who were ‘dangerous to be per- mitted to go abroad.’” 25 In other words, the greater restriction included the lesser. If the insane could be wholly deprived of their liberty and property, the government could necessarily take away their firearms.

Of course, the practice of institutionalizing so-called “lunatics” does not give clear guidance about which lesser impairments are serious enough to Case: 22-60596 Document: 00516852540 Page: 19 Date Filed: 08/09/2023

No. 22-60596 warrant the loss of constitutional freedoms. But we can assume that intoxi- cation with marihuana is analogous to short-term mental illness. Dr. Benja- min Rush—who signed the Declaration of Independence—said a “tempor- ary fit of madness” was a symptom of drunkenness. 26 And in an influential treatise on constitutional law, Thomas Cooley described drunkenness as a form of “temporary insanity.” 27 The same could be said of intoxication via marihuana.

Still, that comparison could justify disarming a citizen only while he is in a state comparable to lunacy. Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence.

Indeed, it is helpful to compare the tradition surrounding the insane and the tradition surrounding the intoxicated side-by-side. The Founders purportedly institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober. We must ask, in Bruen-style analogical reasoning, which is Daniels more like: a categorically “insane” person? Or a repeat alcohol user? Given his periodic marihuana usage, Daniels is firmly in the latter camp. If and when Daniels uses mari- huana, he may be comparable to a mentally ill individual whom the Founders would have disarmed. But while sober, he is like the repeat alcohol user in between periods of drunkenness.

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In short, neither the restrictions on the mentally ill nor the regulatory tradition surrounding intoxication can justify Daniels’s conviction. Perhaps the government could show that the drugs Daniels used were so powerful that anyone who uses them is permanently impaired in a way that is compar- able to ongoing mental illness. Or the government could demonstrate that Daniels’s drug use was so regular and so heavy that he was continually impaired. Here, it has shown evidence of neither.

3.

Finally, the government asserts that Congress can limit gun posses- sion by those “dangerous” to public peace or safety. It contends that prin- ciple was well understood when the Second Amendment was ratified. And it posits that Daniels—a repeat marihuana user—was presumptively danger- ous enough to be disarmed. Although there is some historical evidence for the government’s underlying principle, the historical examples of danger- based disarmament do not justify § 922(g)(3)’s application here.

a.

As Justice Barrett detailed when she was a judge on the Seventh Cir- cuit, history supports the intuitive proposition that the government can keep deadly firearms away from dangerous people. Kanter, 919 F.3d at 451 (Bar- rett, J., dissenting). 28 Even the amici who believe that Daniels should prevail on his Second Amendment challenge suggest that the government can disarm the dangerous, even under Bruen’s history-and-tradition test. 29

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That said, no one piece of historical evidence suggests that when the Founders ratified the Second Amendment, they authorized Congress to dis- arm anyone it deemed dangerous. Instead, the government collects different statutes disarming discrete classes of persons at various points in history.

Those laws suggest an abstract belief that an individual’s right to bear arms could be curtailed if he was legitimately dangerous to the public.

The government’s examples fall into two general buckets. First, states barred political dissidents from owning guns during periods of conflict. Many American states, for instance, disarmed those who failed to take an oath of allegiance during the Revolutionary War. 30 Second, both British and Ameri- can governments disarmed religious minorities—especially Catholics. 31

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Each of those laws was generally based on concerns for the safety of the polity, but each disarmament also had its own unique political or social motivations. Almost all the laws disarming dissidents were passed during wartime or periods of unprecedented political turmoil. Indeed, Founding- era governments did not disarm Loyalists because they were thought to lack self-control; it was because both were viewed as potential threats to the integrity of the state. 32 The same was true of religious minorities—the perceived threat was as much political as it was religious. 33 Independent of those class-based restrictions, the government relies Case: 22-60596 Document: 00516852540 Page: 23 Date Filed: 08/09/2023

No. 22-60596 heavily on the Militia Act of 1662, which allowed the Crown to disarm those whom he judged “dangerous to the Peace of the Kingdome.” 14 Car. 2 c. 3, § 13 (1662). That is the most direct support for the government’s principle that the legislature could prophylactically disarm any citizen who could potentially be dangerous.

But Rahimi held that the Militia Act was not incorporated into Amer- ican law. After all, the Act was the justification for the widespread disarming of political opponents by Charles II and James II. Rahimi, 61 F.4th at 456.

After the Glorious Revolution, the 1689 English Bill of Rights expanded the right to bear arms in order to curtail the Militia Act’s reach and limit the Crown’s “politically motivated disarmaments.” Id. Our Second Amend- ment is a direct descendant of that latter guarantee. Id. (citing Heller, 554 U.S. at 593). If anything, our constitutional right to bear arms was pur- posefully broader than its English ancestor. See William Rawle, A View of the Constitution of the United States of Amer- ica 122–23 (Philadelphia, H.C. Carey & I. Lea 1825). Although some his- torians maintain that the Militia Act was still frequently used after the Glori- ous Revolution, 34 its limitations likely did not survive the categorical com- mand of the Second Amendment. See Rahimi, 61 F.4th at 456.

Finally, the government posits that Congress can disarm dangerous citizens because the idea was discussed during the ratification of the Consti-

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No. 22-60596 tution. Samuel Adams, for example, proposed an amendment at the Massa- chusetts ratifying convention that would have limited the right to bear arms to “peaceable citizens.” 35 At the Pennsylvania ratifying convention, the dissenting minority suggested several constitutional amendments, including one that would have protected the right to bear arms “unless for crimes com- mitted, or real danger of public injury from individuals.” 36 Heller described the Pennsylvania proposal as an “influential” precursor to our Second Amendment, 554 U.S. at 604, as many of the Pennsylvania minority’s sug- gestions ended up in our current Bill of Rights. 37 Again, however, we must pause. The predecessors of the Second Amendment gave concrete language to possible limits on the right to bear arms. Yet that language was not adopted. Instead, the People ratified the unqualified directive: “shall not be infringed.” U.S. Const. amend. II.

Usually, when the relevant lawmaking body does not adopt language in a draft, we presume that the stricken language was not intended. See Skoien, 614 F.3d at 648 (Sykes, J., dissenting). Indeed, Rahimi also considered those Second Amendment precursors and concluded that the unadopted language could not supplant the Amendment’s enacted text. Rahimi, 61 F.4th at 457.

That said, there is an undeniable throughline in all those historical sources: Founding-era governments took guns away from persons perceived to be dangerous. Even if the disarming of Loyalists and Catholics was limited Case: 22-60596 Document: 00516852540 Page: 25 Date Filed: 08/09/2023

No. 22-60596 to exigent historical contexts, no party identifies “disputes regarding the lawfulness of such prohibitions” at the time. Bruen, 142 S. Ct. at 2133.

Indeed, some states such as Pennsylvania disarmed dissident citizens while their state constitutions guaranteed a right to bear arms. 38 And even if the Founders repudiated the Militia Act and rejected the Second Amendment precursors, the language of those documents says something about the outer limit of the right to bear arms in the English tradition.

Perhaps the Second Amendment was meant to do away with all those restrictions of liberty, and we can chalk such restrictions up to reactionary excess during the birth of a nation. On the other hand, we cannot completely discount the sheer number of disarming statutes at the time of the Founding.

Together, they suggest a public understanding that when a class of individ- uals was thought to pose a grave danger to public peace, it could be disarmed.

b.

Assuming the Second Amendment encodes some government power to disarm the dangerous, the question becomes: At what level of generality may we implement that principle? Bruen requires us to interrogate the his- torical record for “relevantly” similar regulations. It does not allow us to enforce unenacted policy goals lurking behind the Second Amendment.

Indeed, any ability to implement a “dangerousness principle” is fenced in by at least two strictures in the applicable caselaw. On the one hand, the legislature cannot have unchecked power to designate a group of persons as “dangerous” and thereby disarm them. Congress could claim that immigrants, the indigent, or the politically unpopular were presumptively “dangerous” and eliminate their Second Amendment rights without judicial Case: 22-60596 Document: 00516852540 Page: 26 Date Filed: 08/09/2023

No. 22-60596 review. That would have “no true limiting principle,” Rahimi, 61 F.4th at 454, and would render the Second Amendment a dead letter.

On the other hand, we cannot inspect a legislature’s judgment of dan- gerousness using traditional standards of scrutiny. Bruen forbids us from balancing a law’s justifications against the burden it places on rightsholders. 142 S. Ct. at 2127, 2129. Imagine, for example, that a state legislature disarms all men, citing statistics that men commit more violent crimes than do women. 39 Before Bruen, we would have considered whether the evidence supporting male dangerousness was substantial enough—and whether the law was sufficiently tailored—to justify such a categorical restriction on gun rights. But Bruen forswears that kind of review. Bruen, 142 S. Ct. at 2129.

Similarly, imagine that the government bars all convicted cybercriminals from owning guns, referencing the “dangerousness” of cybercrime. Cyber- crime is assuredly dangerous, but in a different way than is violent crime.

Applying a standard of scrutiny, we might have interrogated whether Con- gress had adequately demonstrated that someone who spreads ransomware or pirates television shows is likely to be dangerous with a firearm. Again, Bruen heads that analysis off at the pass. Id. 40 How, then, do we square the post-Bruen circle? To remain faithful to Bruen, the solution is to analogize to particular regulatory traditions instead Case: 22-60596 Document: 00516852540 Page: 27 Date Filed: 08/09/2023

No. 22-60596 of a general notion of “dangerousness.” The government must show that a historical danger-based disarmament is analogous to the challenged regula- tion. 41 We must use Bruen’s “why” and “how” analysis to assess whether the Founding-era restriction is relevantly similar to the modern one. We must ask: Why was the group considered dangerous at the Founding and therefore disarmed? And why does the modern law classify a person as pre- sumptively dangerous? Is the comparison supported by the record? Fur- thermore, how did the historical regulation limit the rights of the dangerous class? And how does the modern regulation do so? 42 c.

Applying Bruen’s framework to the proffered analogues, it follows that the government’s theory of danger-based disarmament falls apart. The government identifies no class of persons at the Founding (or even at Recon- struction) who were “dangerous” for reasons comparable to marihuana users. Marihuana users are not a class of political traitors, as British Loyalists were perceived to be. Nor are they like Catholics and other religious dissent- ers who were seen as potential insurrectionists. And even if we consider the racially discriminatory laws at the Founding, Daniels is not like the minorities Case: 22-60596 Document: 00516852540 Page: 28 Date Filed: 08/09/2023

No. 22-60596 who the Founders thought threatened violent revolt.

The government suggests that, in the spirit of the drafts of the Second Amendment and the Militia Act, marihuana users threaten the public “peace.” But at the time of the Founding, that notion referred specifically to violence or rebellion, not generalized public harm. 43 And § 922(g)(3) is not limited to those with a history of violent behavior—not all members of the set of “drug users” are violent. As applied in this case, the government has not shown how Daniels’s marihuana use predisposes him to armed con- flict or that he has a history of drug-related violence.

Furthermore, even as the Founders were disarming Catholics and politically disaffected citizens, they left ordinary drunkards unregulated. The government has no meaningful response to the fact that neither Congress nor the states disarmed alcoholics, the group most closely analogous to mari- huana users in the 18th and 19th centuries. As with the government’s analogy to mental illness, we must ask: Which are marihuana users more like: British Loyalists during the Revolution? Or repeat alcohol users? The answer is surely the latter.

The government asks us to set aside the particulars of the historical record and defer to Congress’s modern-day judgment that Daniels is pre- sumptively dangerous because he smokes marihuana multiple times a month.

But that is the kind of toothless rational basis review that Bruen proscribes.

Absent a comparable regulatory tradition in either the 18th or 19th century, Case: 22-60596 Document: 00516852540 Page: 29 Date Filed: 08/09/2023

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§ 922(g)(3) fails constitutional muster under the Second Amendment. 44 III.

Daniels’s § 922(g)(3) conviction is inconsistent with our “history and tradition” of gun regulation. Bruen, 142 S. Ct. at 2128. We conclude only by emphasizing the narrowness of that holding. We do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels. Nor do we suggest that a robust Second Amendment is incompatible with other reason- able gun regulations. 45 Such statutes just need to be consonant with the limits the Founding generation understood to be permissible when they ratified the Second Amendment. The government has failed to demonstrate that here.

The judgment of conviction is therefore REVERSED, and a judg- ment dismissing the indictment is RENDERED.

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Stephen A. Higginson, concurring: In the fifteen years since the Supreme Court first found in the Second Amendment an individual right to keep and bear arms to defend the home, See District of Columbia v. Heller, 554 U.S. 570, 595, 636 (2008); McDonald v. City of Chicago, 561 U.S. 742, 750 (2010) (incorporating this right against the states), historians and legal scholars have continued to question this interpretation, 1 while the nation has continued to look for constitutionally permissible safeguards against gun violence and gun-related death rates that outstrip those of almost every other country. 2

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Faced with this expanded Second Amendment reach and the corresponding wave of legal challenges to gun safety regulations, lower courts eventually “coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combine[d] history with means-end scrutiny.” 3 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2125 (2022). In applying this framework, courts were attempting to balance Heller’s rejection, on originalist grounds, of the previously narrow focus on a militia interest in favor of an interest in self-defense, with Heller’s recognition that the Second Amendment contains limiting principles and exceptions.

Specifically, Heller acknowledged that the Second Amendment does not curtail the legislative power to regulate and restrict the carrying of “dangerous and unusual weapons,” 554 U.S. at 627, nor does it undermine “longstanding prohibitions” on the carrying of firearms in sensitive places or by certain persons, or “laws imposing conditions and qualifications on the commercial sale of arms,” id. at 626-27.

Thus, even as the politics of gun safety remained hotly contested, the law had somewhat settled. And under this framework, courts generally Case: 22-60596 Document: 00516852540 Page: 32 Date Filed: 08/09/2023

No. 22-60596 permitted Americans, through both state and federal elected officials, to enact, or opt not to enact, gun safety regulations to address the ongoing crisis of gun violence. 4 Last year, however, the Supreme Court again revised Second Amendment doctrine in Bruen, declaring that this “two-step” approach, which combined attentiveness to history with a traditional judicial balancing test, was “one step too many.” Id. at 2127. Now, the Court has written, if “the Second Amendment’s plain text covers an individual’s conduct,” then a gun regulation is presumptively unlawful unless the government can “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” 5 Id. at 2126, 2129-30.

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Bound by this interpretative sequence, we hold today that 18 U.S.C. § 922(g)(3), a decades-old felony provision of our federal firearms law, is unconstitutional as applied to Mr. Daniels. Although our decision is limited in scope, it is hard for me to avoid the conclusion that most, if not all, applications of § 922(g)(3) will likewise be deficient. 6 It is also important to acknowledge that other gun safety laws, especially longstanding status-based prohibitions previously understood to be constitutionally unassailable, have been recently struck down by courts across the country as they attempt to faithfully implement Bruen. 7

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To be clear, I fully concur in the majority’s reasoning—albeit with the caveat that the Supreme Court has granted certiorari in United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, No. 22-915, __ S. Ct. __, 2023 WL 4278450, at *1 (June 30, 2023)—as I believe that we have applied Bruen as well as possible in evaluating the constitutionality of § 922(g)(3). I write separately to highlight what has become increasingly apparent—that courts, operating in good faith, are struggling at every stage of the Bruen inquiry. Those struggles encompass numerous, often dispositive, difficult questions, including, but not limited to the following. First, who, and what conduct, is covered by the Second Amendment? 8 Second, how does the _____________________ Moreover, the effect of Bruen has been especially dramatic as to civil claims. See Jake Charles, One Year of Bruen’s Reign: An Updated Empirical Analysis, Duke Ctr. for Firearms Law (July 7, 2023), https://firearmslaw.duke.edu/2023/07/one-year-of- bruens-reign-an-updated-empirical-analysis.

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Government demonstrate a regulatory “tradition”? This inquiry implicates questions about how many states must have historically addressed an issue, or how many laws must have been passed—or some combination of the two 9—for a historical practice to constitute a “tradition,” 10 see Bruen, 142 S. Ct. at 2142 (“[W]e doubt that three colonial regulations could suffice to show a tradition of public-carry regulation.”), as well as the related issue of enforcement. 11 Third, what is the operative time period for such regulations—1791 or 1868?—and to what extent does post-ratification Case: 22-60596 Document: 00516852540 Page: 36 Date Filed: 08/09/2023

No. 22-60596 practice count? See id. at 2162-63 (Barrett, J., concurring). 12 Fourth—but again, this list is not exhaustive—how are courts to differentiate between “general societal problem[s]” that have “persisted since the 18th century,” and those that “implicat[e] unprecedented societal concerns or dramatic technological changes,” id. at 2131-32, and, moreover, between “historical analogue[s]” as distinct from “historical twin[s]”? Id. at 2133. 13 More foundationally, courts are laboring to give meaning to the Bruen requirement of “historical inquiry.” Must the Government provide expert testimony to prevail, or could a district court independently seek such evidence? 14 And in the event such evidence is lacking in the record below, Case: 22-60596 Document: 00516852540 Page: 37 Date Filed: 08/09/2023

No. 22-60596 may courts of appeal collect their own history and make up for a party’s earlier failing? 15 Going even further, should courts undertake discovery and evidentiary testing of historical evidence to perceive the existence of a sufficient regulatory tradition? 16 And, in making that conclusion, does the Case: 22-60596 Document: 00516852540 Page: 38 Date Filed: 08/09/2023

No. 22-60596 constitutionality of any given provision rise or fall with the strength of the historical record as to a specific case, or will rulings be treated as establishing a single historical truth?

The majority in Bruen, responding to unworkability concerns identified by the dissent and echoed by courts over the past year, may have intimated answers. Specifically, the majority insisted that, as in other legal disputes, “historical evidence” is predicated on our “adversarial system of adjudication,” in which courts must “decide [the] case based on the historical record compiled by the parties.” Id. at 2130, n.6. In my view, this suggests that Bruen requires that an evidentiary inquiry first be conducted in courts of original jurisdiction, subject to party presentation principles, aided by discovery and cross-examination and with authority to solicit expert opinion. 17 In granting certiorari in Rahimi, the Supreme Court likely will resolve some of these questions. Of course, in the meantime, it is our job as an inferior court to apply the Supreme Court’s mandates and aid the development of this field of law. But the uncertainty and upheaval resulting from best efforts to apply Bruen now extend far beyond our dockets. Myriad and obvious public safety laws, some over a century old, face inconsistent invalidation.

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The impact of these challenges, outside of the evident yet indescribable tragedies of victims of gun violence, will fall heavily on states, which exercise most police power and must assure public safety. See Teter v. Lopez, No. 20- 15948, 2023 WL 5008203 (9th Cir. Aug. 7, 2023) (striking down Hawaii’s ban on butterfly knives as unconstitutional under Bruen). Already, as courts work through the impact of Bruen, defendants guilty of a gun crime in one jurisdiction are presently innocent of it in another. 18 In attempting to navigate this new landscape, it is prudent to first return to the text of the Second Amendment, which states, in full: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. Just as the doctrine corrected in Heller was held to have over- emphasized the first third of the text (“[a] self regulated Militia”), it is possible that inferior judicial officers such as myself are misinterpreting Bruen by pressing too much on the last (“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.” In this sense, Case: 22-60596 Document: 00516852540 Page: 40 Date Filed: 08/09/2023

No. 22-60596 unlike the textually unbounded pledges assuring freedom of speech and conscience, “the right of the people to keep and bear Arms” is less about the antithesis of liberty and control, and is more designed to assure “domestic Tranquility [and] . . . the general Welfare.” U.S. Const. pmbl. Put another way, the Second Amendment is not only a right to have, but is especially a right to have to protect the state. That right to protect, as both Heller, McDonald, and Bruen affirmatively acknowledged, incorporates significant public safety exceptions. 19 Importantly, the Supreme Court in Bruen saw itself as continuing with, rather than breaking from, Heller, which recognized that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626. Thus, although in dicta, the Heller majority was confident that, though never conceived of by the Framers and hence never subject to public safety regulation, certain “dangerous and unusual weapons” could properly be banned. Id. at 624, 627. Similarly, the majority assured that “nothing in our opinion should be taken to cast doubt on” some of the most critical tools for combatting gun violence, including both people- and place- based restrictions. Id. at 626-27; see also McDonald, 561 U.S. at 786 (plurality) (“We repeat [Heller’s] reassurances here.”); Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., joined by Roberts, CJ., concurring). These assurances are a recognition that the Second Amendment, explicitly and unlike the other original ten amendments in our Bill of Rights, ties to the “security” of our country. The Second Amendment assured a vigilant, armed citizenry and it did so for an explicit purpose, i.e. “being necessary to the security of a free Case: 22-60596 Document: 00516852540 Page: 41 Date Filed: 08/09/2023

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State….” To read the Second Amendment as providing an ever-expanding individual right, without limits, therefore, runs counter to both its text and the Framers’ own understanding.

As should be evident, I am appreciative that the court that speaks the final word has agreed to provide more guidance on an issue of such national importance. I cannot help but fear that, absent some reconciliation of the Second Amendment’s several values, any further reductionism of Bruen will mean systematic, albeit inconsistent, judicial dismantling of the laws that have served to protect our country for generations. Furthermore, such decisions will constrain the ability of our state and federal political branches to address gun violence across the country, which every day cuts short the lives of our citizens. This state of affairs will be nothing less than a Second Amendment caricature, a right turned inside out, against freedom and security in our State.