5th Circuit deals blow to federal gun statute used in Hunter Biden case

The U.S. Court of Appeals for the 5th Circuit on Wednesday voided a federal law that prevents unlawful drug users from possessing firearms.

The statute, 18 U.S.C. § 922(g)(3), bars anyone who is an "unlawful user of or addicted to any controlled substance," including marijuana, from possessing a gun. Violators can face up to 10 years in prison. However, a three-judge panel, citing the Supreme Court's landmark gun rights decision last year, unanimously found the statute unconstitutional as applied to defendant Patrick Daniels. 

Daniels, an admitted habitual marijuana user, was arrested in April 2022 after police searched his car and found marijuana and two loaded firearms. He was convicted in July 2022 and sentenced to nearly four years in prison and three years of probation — a conviction the 5th Circuit panel has now thrown out. 

Though the decision is limited to Louisiana, Mississippi and Texas, it could potentially impact the ongoing federal case against Hunter Biden, who is charged in Delaware under the same statute. Former Assistant U.S. Attorney Andrew McCarthy told Fox News the Justice Department could use the 5th Circuit's opinion as a rationale for a new plea agreement.

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"Even though Hunter Biden’s situation is readily distinguishable from that of Patrick Daniels, it’s possible the Justice Department could rationalize that the 5th Circuit’s ruling supports its exercise of discretion to give Biden deferred-prosecution treatment (as currently proposed, two years of probationary conditions followed by dismissal if the conditions are met) in a plea agreement," McCarthy said. 

The 5th Circuit case, known as U.S. v. Daniels, was decided by Judges Jerry Smith, Stephen Higginson and Don Willett. Together, they held that the 922(g)(3) restriction was too broad as applied to Daniels and unsupported by a "historical tradition of firearm regulation," as required by the Supreme Court in Bruen. 

"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," Smith wrote. "Indeed, it is helpful to compare the tradition surrounding the insane and the tradition surrounding the intoxicated side-by-side."

The statute's language does not distinguish between a person who is intoxicated or a person who is sober but in possession of drug paraphernalia at the time of their arrest.

The court observed that the founding-era law "institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober." 

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"In short, neither the restrictions on the mentally ill nor the regulatory tradition surrounding intoxication can justify Daniels' conviction," Smith wrote. Further, the court said there was no historical tradition of stripping away gun rights from persons who are non-violent, drug users or otherwise. 

"The government asks us to set aside the particulars of the historical record and defer to Congress' modern-day judgment that Daniels is presumptively 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, § 922(g)(3) fails constitutional muster under the Second Amendment." 

The 5th Circuit has now declared two federal gun statutes unconstitutional under Bruen's precedent. In a previous case, U.S. v. Rahimi, the court struck down a federal statute that made it a crime for a person with a domestic violence restraining order to be in possession of a gun — a decision that has been appealed to the Supreme Court. 

In a concurring opinion, Higginson criticized Bruen for causing "uncertainty and upheaval" in how the government can apply public safety laws, which he said "face inconsistent invalidation." He observed that lower courts have wildly differed in their interpretations of Bruen, leading to disparate outcomes for individuals across the country charged with the same federal crime. 

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"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," the judge said.

Such is the case for Hunter Biden, who is charged with violating 18 U.S.C. § 922(g)(3) because he was a crack cocaine user when he bought a Colt Cobra .38 Special from StarQuest Shooters, a gun store in Wilmington, Delaware, in 2018. 

McCarthy said that while there are essential differences between Biden and Daniels, the Justice Department could still use the 5th Circuit's decision to go easy on Biden.

"The 5th Circuit panel unanimously ruled that the 922(g)(3) restriction was too broad as applied to Daniels. Historically, the law has permitted gun possession prohibitions against people who were actively under the influence of drugs or alcohol, but not against people who were sometimes under the influence but apparently sober at the time they possessed guns," he explained. 

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"Unlike Daniels, who by his own admission is a regular marijuana user, Biden was a cocaine addict who was provably binging on cocaine in the October 2018 time-frame when he possessed at least one firearm," McCarthy continued. "Marijuana is now legal in many states (even though it is still deemed a prohibited substance under federal law that is not enforced); cocaine is an illegal substance under state and federal law — it is more addictive, more debilitating, and consequently its possession and distribution are punished more severely in penal statutes.

"So the cases can be distinguished," McCarthy said. "Nevertheless, it would not be unreasonable for the Justice Department to say it needed to rethink prosecution standards for 922(g)(3) in light of the Daniels decision. Of course, the question would then be whether Hunter Biden was being given favorable treatment — i.e., was he being given a pass when the Biden Justice Department would still prosecute similarly situated people? It’s too early to answer that question."

Gun rights activists celebrated the 5th Circuit's opinion, denouncing 18 U.S.C. § 922(g)(3) as an unconstitutional restriction on the Second Amendment. 

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However, Higginson warned that "further reductionism" under Bruen "will mean systematic, albeit inconsistent, judicial dismantling of the laws that have served to protect our country for generations." 

"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," Higginson wrote.