Another District Court Strikes Down Part of 18 USC 922(g) Pursuant to Bruen

The Federal Docket

April 18, 2023

In yet another blow to 18 U.S.C. 922(g), the statute criminalizing the possession of firearms by certain categories of people, a district court in Texas has struck down 922(g)(3) as unconstitutional. Section 922(g)(3) prohibits users of unlawful drugs to possess firearms.

In US v. Connelly, the defendant was charged with a federal crime for possessing firearms while being an unlawful user of marijuana, a controlled substance under federal law. The district court initially denied her motion to dismiss but reconsidered its decision after the Fifth Circuit’s holding in United States v. Rahimi, where the Fifth Circuit struck down another section of 922(g) applying to people subject to a restraining order.

The district court concluded that 922(g)(3) was unconstitutional in light of the Supreme Court’s recent decision in Bruen because there was no historical tradition of prohibiting unlawful drug users from possessing firearms. The court rejected the government’s comparisons to old colonial laws that prohibited shooting guns while drunk (Virginia) or while intoxicated in certain areas during New Year’s holidays (New York), as well as reconstruction-era laws prohibiting the carrying or using of firearms by intoxicated individuals. The court also noted that reconstruction-era laws were significantly less persuasive since the regulation in question was a federal one, and, unlike state governments, the federal government has been limited by the Second Amendment since the founding. Finally, the court rejected the government’s broad arguments that 922(g)(3) was consistent with categorical restrictions on “un-virtuous,” non-“law-abiding,” or “dangerous” citizens.

Notably, the district court also struck down 18 USC 922(d)(3), which prohibits the sale or transfer of firearms to a person who is a controlled substance user. The court held that the conduct of “selling” or “transferring” the firearms still fell under the Second Amendment’s protection since the act of “receiving” a firearm is concomitant with keeping and bearing arms. It noted a circuit split regarding whether selling or purchasing firearms can implicate the Second Amendment.

Click here to read the district court’s order.

Click here to read about our firm’s use of Bruen in federal firearms cases.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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