Last month, Professor F. Lee Francis, of Mississippi College School of Law, and I filed an amicus brief in United States v. Daniels, a Fifth Circuit case in which Patrick Daniels challenged his conviction under 18 U.S.C. § 922(g)(3). Section 922(g)(3) prohibits possession of a firearm by one “who is an unlawful user of or addicted to any controlled substance.” Mr. Daniels, an admitted marijuana user, was found with two firearms in a traffic stop. A jury convicted him and he was sentenced to 46 months’ imprisonment followed by supervised release. We argued that his conviction was improper.

Our brief made three overarching points: (1) for purposes of firearms use, historical regulations regarding alcohol use are the proper comparators for marijuana use; (2) there is no history and tradition, as required by NYSRPA v. Bruen, of totally disarming intoxicant users during times when they are sober, as opposed to when they are actively intoxicated; (3) the proper test for disarmament is dangerousness, and sober marijuana users, like sober alcohol users, cannot be presumed to be dangerous. We explicitly took no position on, “‘unlawful user[s] of’ cocaine, opiates, or other controlled substances, or to those [to quote § 922(g)(3)] ‘addicted to any controlled substance.’” This includes, to quote the regulations under § 922(g)(3), those who have “lost the power of self-control with reference to the use of [a] controlled substance.”

Last week, the Fifth Circuit ruled that Section 922(g)(3), as applied to Mr. Daniels, violated the Second Amendment. The opinion has much in common with our brief, from its logic to the sources cited. The opinion begins by noting that the Drug Enforcement Agency (which arrested him) neither administered a drug test nor recorded or testified that Mr. Daniels was intoxicated when arrested with the guns in his car. Nor did the government present evidence that he was carrying or firing a firearm while under the influence of marijuana at some other point.

The court determined that “intoxication via alcohol” is the appropriate comparator for intoxication via marijuana. It then noted that Founding era laws at the nexus of firearms and intoxication applied only to the actively intoxicated, rather than those who drank regularly. It also noted that Reconstruction-era laws—which Bruen and Justice Barrett’s concurrence note that may have more relevance when applied to the Second Amendment incorporated against the states via the Fourteenth Amendment—provided more support for § 922(g)(3), but still only to the extent of barring carriage during present intoxication. (But it aptly noted that a potentially different Fourteenth Amendment application of the right to bear was not relevant where, as here, a federal statute was at issue.)

This dual theme—alcohol is the proper comparator for marijuana, and “no tradition . . . supports disarming a sober citizen who is not currently under an impairing influence”—recurs throughout the opinion. Correctly so. For decades, many have questioned whether, given the questionable roots of its prohibition and the devastating effects of its ban on society, it should be regulated any differently from alcohol. The relegalization of marijuana in more than 20 states, and the absence of hell breaking loose there, evidences the success of this social experiment. (Another remarkably evolved social experiment—one more compelling than the recent wave of marijuana legalization—is the proliferation of shall-issue concealed carry followed by a second wave of widespread permitless concealed carry.) As the court points out, the opposite reasoning would allow Congress or the states to take away the arms rights of anyone who regularly drinks alcohol.

Recall that Daniels is an as applied holding—it applies only to Mr. Daniels. In other words, there is plenty of room to prevent bar the marijuana addict who has lost all “power of self-control with reference to [its] use” from owning arms, “meth addicts and heroin users . . . from acquiring a personal arsenal of firearms” (as a respected friend and colleague in this field said), or even the alcoholic who has been so “permanently impaired” or “continually impaired” (to quote Daniels) from gun possession. In these situations, addiction may (at least conceivably—the government should still have to prove its case in the face of an as-applied challenge before depriving someone of a fundamental right) cause the sober addict to be dangerous. It is simply not the case, as the concurrence fears, that “most, if not all, applications of § 922(g)(3) will likewise be deficient.”

The court ultimately adopted—again correctly, I believe—a dangerousness test for disarmament. (It cited our brief’s statement of this proposition.) It was careful to avoid sanctioning “unchecked [legislative] power to designate a group of persons as ‘dangerous’ and thereby disarm them.” Politically disfavored groups like Catholics and racial minorities, the court notes, were disarmed around and before the Founding era. Because “the government has not shown how Daniels’s marihuana use predisposes him to armed conflict or that he has a history of drug-related violence,” he could not be disarmed. All I might’ve added is that the government has not shown that Mr. Daniels was dangerous when he was sober.