There will almost certainly be an appeal now that a three-judge panel of the U.S. Fifth Circuit Court of Appeals has struck down a law which prohibits illegal drug users from possessing firearms this week.
A former assistant U.S. Attorney told Fox News the ruling 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 reportedly suggested the Biden Justice Department could use the unanimous Wednesday ruling to cut a new plea deal with Hunter Biden in the pending gun violation case.
CNN is reporting that the Patrick Daniels, the subject of the court ruling, was an admitted “frequent user of marijuana.” The ruling applies only to Louisiana, Mississippi and Texas, but the national implications are obvious. Some states have legalized the recreational use of marijuana, while the federal statute prohibiting gun possession by drug users has remained in effect.
CNN quoted Judge Jerry Smith, who authored the panel’s decision, writing, “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 generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.”
He said in Daniels’ case, the federal gun control law “violates the Second Amendment.”
While there may be media speculation about the impact this ruling could have on the Hunter Biden case, which is in another federal circuit in Delaware, there is at least one significant distinction. As explained to Fox News by McCarthy, Daniels’ arrest and conviction involved marijuana use, while Hunter Biden “was a cocaine addict who was provably binging in cocaine” at the time he bought a Colt Cobra revolver in Wilmington, Delaware in 2018. Several states have legalized the use of marijuana, even though it remains a controlled substance under federal law—18 U.S.C. § 922(g)(3)—which puts those states at odds with federal drug enforcement policies.
This may result in a push to have the federal law re-examined, at least where marijuana is concerned.
Daniels was arrested in April 2022 after he was pulled over in a traffic stop for not having a rear license plate on his car. The officers apparently smelled marijuana and a search of the vehicle revealed some marijuana butts and two loaded firearms. Daniels was not tested for drugs by the arresting officers. He was convicted but appealed, leading to the 5th Circuit Court ruling this week.
In its ruling, the court noted, “Because there was little regulation of drugs (related to guns or otherwise) until the late-19th century, intoxication via alcohol is the next closest comparator. Throughout the colonial period and into the 19th century, Americans drank alcohol—and lots of it. 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,” the ruling continues, “that regulatory tradition is sparse and limited during the relevant time periods. Despite the prevalence of alcohol 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 influence, none barred gun possession by regular drinkers.”
As noted by McCarthy in his Fox News comments, the Justice Department could use this decision to “rethink” prosecution standards in drug cases. He acknowledged that a question would linger as to whether Hunter Biden received preferential treatment.