The Second Amendment and the Federal Prohibition on Unlawful Drug Users from Possessing Firearms

The Second Amendment and the Federal Prohibition on Unlawful Drug Users from Possessing Firearms

Legal Sidebari

The Second Amendment and the Federal
Prohibition on Unlawful Drug Users from
Possessing Firearms
January 12, 2024
Title 18, Section 922(g)(3), of the U.S. Code prohibits any person “who is an unlawful user of or addicted
to any controlled substance” from possessing a firearm or ammunition. In the 2023 decision United States
v. Daniels, the U.S. Court of Appeals for the Fifth Circuit determined that Section 922(g)(3)
unconstitutionally deprived a defendant of his right to bear arms under the Second Amendment. In doing
so, the Fifth Circuit split with several other federal appeals courts that had rejected Second Amendment
challenges to Section 922(g)(3).
Section 922(g)(3) is part of the Gun Control Act of 1968, which bars nine categories of individuals from
possessing firearms or ammunition. Recently, federal appeals courts have held that the firearm possession
prohibitions for three of the nine categories violate the Second Amendment: (1) in Daniels, the Fifth
Circuit held that Section 922(g)(3) was unconstitutional as applied to the defendant; (2) in United States v.
Rahimi, the Fifth Circuit invalidated 18 U.S.C. § 922(g)(8), which prohibits individuals subject to certain
domestic violence restraining orders from possessing firearms; and (3) in Range v. Attorney General, the
Third Circuit concluded that 18 U.S.C. § 922(g)(1), which makes it unlawful for felons to possess
firearms, was unconstitutional as applied to a defendant whose past felony was a nonviolent fraud
offense.
Each of these three decisions—Daniels, Rahimi, and Range—is now before the Supreme Court in some
form. The Supreme Court has agreed to review the Fifth Circuit’s ruling in Rahimi. The United States has
asked the Supreme Court to review the decisions in Daniels and Range (as well as a subsequent Fifth
Circuit decision that raises the same question presented in Rahimi). These petitions are pending.
Other CRS products preview the Rahimi case and provide background on Range. This Sidebar offers an
overview of Daniels. The case has drawn attention because it is one of the few cases holding an existing
federal firearm law to be unconstitutional at least as applied and because it could result in Supreme Court
involvement. Section 922(g)(3) has also gained broader public attention because of a recent indictment.
This Sidebar begins with a brief overview of recent Supreme Court cases on the Second Amendment,
which form the backdrop for the Daniels, Rahimi, and Range decisions. The Sidebar then summarizes the
facts, procedural history, and legal conclusions reached by the Fifth Circuit in Daniels. Next, it outlines
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the arguments advanced by the United States as to why the Supreme Court should grant review and
reverse the Fifth Circuit decision and the arguments from the defendant as to why review is not
appropriate. The Sidebar closes with considerations for Congress.
Survey of Recent Second Amendment Jurisprudence
The Second Amendment, ratified in 1791, provides, “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.” For more
than two hundred years, the Supreme Court remained largely silent on the substance and scope of the
Second Amendment. Beginning in 2008, however, the Court issued several consequential decisions
interpreting this constitutional provision. That year, in District of Columbia v. Heller, the Supreme Court
held that the Second Amendment protects an individual right to possess an operable firearm for certain
purposes, including at least self-defense in the home. Whatever the full extent of the Second Amendment
right, the Court wrote, it “surely” includes the “right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” This right, the Court determined, does not depend on an individual’s
affiliation with a militia or the military. Two years later, in McDonald v. City of Chicago, the Court
recognized that the Second Amendment right is “fundamental,” meaning that it constrains not only the
federal government but also state and local governments.
In a 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen, the Court clarified that the
right to bear arms applies outside the home, extending to public spaces where confrontation may occur.
The Court also announced a test that courts are to use to assess whether challenged laws violate the
Second Amendment. Under that test, when the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects it. Accordingly, to justify a regulation of that conduct,
the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of
firearm regulation. The Court explained that, under this historically focused test, the government need
only put forward “a well-established and representative historical analogue, not a historical twin.”
Courts and legal commentators have acknowledged that Bruen altered the Second Amendment landscape.
Prior to Bruen, courts generally used a two-step framework for assessing whether a law comported with
the Second Amendment: first, courts would ask whether the law fell within the scope of the Second
Amendment in light of its text and history (if not, the inquiry ended there, and the law would be upheld);
second, courts would employ what they viewed as the appropriate level of judicial scrutiny—rational
basis, intermediate scrutiny, or strict scrutiny—to assess whether the law passed constitutional muster.
How closely a court would scrutinize a given law would typically depend on whether the court viewed the
law as substantially burdening the “core” of the Second Amendment right. In the pre-Bruen era, federal
circuit courts uniformly upheld Section 922(g)(3) against Second Amendment challenges.
In Bruen, however, the Supreme Court rejected the two-step methodology used by the lower courts and
replaced it with a history-centered framework. The Fifth Circuit in Rahimi observed, for example, that
“Bruen clearly fundamentally changed our analysis of laws that implicate the Second Amendment,
rendering our prior precedent obsolete.”
United States v. Daniels: Overview
The Fifth Circuit’s decision in United States v. Daniels stemmed from an April 2022 traffic stop in which
two law enforcement officers pulled over Patrick Daniels for driving without a license plate. The officers
detected the smell of marijuana and conducted a search of the vehicle. They found several marijuana
cigarette butts and two loaded firearms. The officers did not administer a drug test, ask whether Daniels
was impaired, or otherwise observe that he was impaired. Daniels admitted that he had used marijuana
since high school and continued to do so regularly. Daniels was charged with being an “unlawful user” of

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marijuana, a controlled substance under federal law, while possessing a firearm in violation of Section
922(g)(3). Under circuit precedent, an “unlawful user” is “someone who uses illegal drugs regularly and
in some temporal proximity to the gun possession.”
Daniels moved to dismiss the indictment, asserting that Section 922(g)(3) is inconsistent with the Second
Amendment. In an order dated July 8, 2022, the district court disagreed, preserving the indictment and
allowing the prosecution to proceed. Applying Bruen’s framework, the district court expressed some
“doubt” as to whether Section 922(g)(3) falls within the protection of the Second Amendment based on
language from the Supreme Court indicating that the Second Amendment right is possessed only by “law-
abiding, responsible citizens.” Nonetheless, the court held that Section 922(g)(3) regulates conduct,
specifically the possession of firearms, that is covered by the plain text of the Second Amendment.
Moving to the historical inquiry, the court pointed to cases from the Fifth Circuit and other circuits that
reflect “a long and established history in English and American common law” of prohibiting individuals
who “pose a risk to society ... from exercising the right to bear arms.” The court cited approvingly to a
Seventh Circuit case concluding that “Congress enacted the exclusions in Section 922(g) to keep guns out
of the hands of presumptively risky people,” including “unlawful drug users and addicts.” The court
viewed Section 922(g)(3) as consistent with an American legal tradition of disarming persons considered
to be a risk to society. Daniels was convicted by a jury and sentenced to forty-six months of imprisonment
and three years of supervised release.
On August 9, 2023, a panel of the Fifth Circuit reversed the judgement of conviction. The Fifth Circuit
first determined that Daniels belongs to the “law-abiding” class of individuals protected by the Second
Amendment, reasoning that the universe of “law-abiding” individuals historically excluded only “felons
and the mentally ill.” The court then concluded that the historical regulations presented by the
government were insufficiently comparable to Section 922(g)(3) to establish a historical tradition of
firearm regulation justifying the provision’s application to Daniels. First, the court explained that the
government had not identified any “Founding-era law or practice of disarming ordinary citizens for
drunkenness, even if that intoxication was routine.” “[A]t no point in the 18th or 19th century did the
government disarm individuals who used drugs or alcohol at one time from possessing guns at another,”
the court wrote. The court acknowledged that “[a] few states banned carrying a weapon while actively
under the influence,” but the court found these laws to be inapt as they “did not emerge until well after the
Civil War.” Second, to the extent that intoxication was historically viewed as a “short-term illness” or
“temporary insanity,” the court reasoned that such an understanding would justify disarming individuals
only during actual periods of intoxication. Third, historical regulations that disarmed “dangerous”
individuals were motivated by different political and social purposes, and regulated different categories of
individuals that did not include “ordinary drunkards,” the court concluded. Based on this analysis, the
court held that the government failed to carry its burden of justifying Section 922(g)(3)’s application to
Daniels under the Second Amendment.
One judge on the panel wrote a separate concurrence “highlight[ing]” that courts “are struggling at every
stage of the Bruen inquiry.” The judge asserted that courts are straining to determine, for example, “who,
and what conduct, is covered by the Second Amendment,” how the government is to identify a
“regulatory tradition,” “what is the operative time period for such regulations—1791 or 1868,” and what
counts as a “historical analogue” as compared to a “historical twin?”
United States v. Daniels: Arguments Before the Supreme Court
The Government’s Petition
On October 5, 2023, the United States filed a petition asking the Supreme Court to review the Fifth
Circuit’s ruling in Daniels. In its petition, the government argued that review is warranted for three

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reasons. First, according to the government, the Fifth Circuit’s decision holding Section 922(g)(3)
unconstitutional as applied to Daniels created a split with pre-Bruen opinions from the First, Third, Sixth,
Seventh, and Ninth Circuits upholding the constitutionality of Section 922(g)(3).
Second, the government argued that, historically, the Second Amendment right has been enjoyed only by
“law-abiding, responsible citizens,” which generally excludes all individuals, such as unlawful drug users,
“whose possession of firearms would endanger themselves or others.” For example, the government
indicated that drug users may mishandle firearms or use firearms to commit crimes to facilitate their drug
use; may use firearms as part of their involvement in the drug trade; may pose a danger to law
enforcement during police encounters; and pose a danger to themselves as they are more likely to commit
suicide. These risks, the government maintained, exist even “in between” active drug use because such
users are unlikely to possess firearms only when sober or may pick up their firearms when intoxicated.
The government also pointed out that Section 922(g)(3) does not contemplate permanent disarmament,
adding that Daniels could regain his right to bear arms by “ending his drug abuse.”
Third, the government expressed concern about the practical consequences of the Fifth Circuit’s ruling.
The government argued that Section 922(g) helps combat gun violence, that Section 922(g)(3) results in
more denials of firearm transactions than any other provision of the Gun Control Act except for the felon-
in-possession ban of Section 922(g)(1), and that future enforcement of Section 922(g)(3) may be
jeopardized by Daniels.
Procedurally, the United States has asked the Court to hold the petition pending the Court’s ruling in
Rahimi, after which the Court could vacate and remand the case or proceed with full review in Daniels or
another case raising the constitutionality of Section 922(g)(3).
The Respondent’s Brief in Opposition
Daniels opposed the government’s petition. In his brief, Daniels asserted that the Fifth Circuit correctly
ruled that the Second Amendment right to bear arms belongs to all Americans (not just “law abiding,
responsible citizens,” whether that term is meant to exclude criminals, the dangerous, or any other subset
of “the people”). Daniels further argued that the government’s claim that historical laws disarmed
dangerous individuals fails to prove that the government historically disarmed individuals on the specific
basis of intoxication, or regular drug or alcohol use. Daniels also posited that historical intoxication laws
did not sweep as broadly as Section 922(g)(3), prohibiting firearm possession only during intoxication,
and that laws disarming “habitual drunkards” contradict earlier statutes and are too recent to be relevant
for purposes of Bruen’s historical test.
Considerations for Congress
Bruen has changed the Second Amendment landscape by, among other things, replacing the two-step
inquiry typically used by the lower federal courts with a history-focused methodology. Following Bruen,
courts have held that several of the categorical restrictions in 18 U.S.C. § 922(g) are inconsistent with the
Second Amendment, either in the defendant’s particular case or in all cases. Congress may review Section
922(g) and other federal firearms provisions to assess whether amendments may strengthen these laws in
light of the history-focused test announced in Bruen. Congress may also consider that test, and
consistency with history, in drafting and debating any new firearms legislation. Rahimi—in which the
Court has granted certiorari—represents the Court’s latest opportunity to interpret the Second
Amendment. The Court also could agree to hear Daniels and Range. Any resulting decisions may further
clarify the Second Amendment bounds within which Congress can legislate.

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Author Information

Dave S. Sidhu

Legislative Attorney

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