UNITED STATES OF AMERICA v. PAOLA CONNELLY
No. 23-50312
United States Court of Appeals, Fifth Circuit
August 28, 2024
FILED August 28, 2024
Lyle W. Cayce Clerk
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus PAOLA CONNELLY, Defendant-Appellee.
KURT D. ENGELHARDT, Circuit Judge:
Paola Connelly is a non-violent, marijuana smoking gunowner. El Paso police came to her house in response to a “shots fired” call. When they arrived, they saw John, Paola‘s husband, standing at their neighbor‘s door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. A sweep revealed that the Connellys’ home contained drug paraphernalia and several firearms, including firearms owned by Paola. There was no indication that Paola was intoxicated at the time. Paola was charged with violating: (1)
This appeal asks us to consider whether Paola‘s Second Amendment rights were infringed, and the answer depends on whether
I. BACKGROUND
On December 28, 2021, El Paso police officers responded to a report of shots fired at Paola Connelly‘s home. Dispatch informed responding officers that a conflict arоse between Paola‘s husband, John, and their neighbor. The neighbor reported that John came to his door with a machete, demanded he “apologize” for a perceived slight, then left before returning with a shotgun.
Officers heard several shots upon arriving, saw John at the neighbor‘s door, and arrested him after he dropped the shotgun and attempted to escape. Officers then went to the Connellys’ house and spoke with Paola before conducting a sweep. Paola told officers that John and the neighbor used crack and powdered cocaine together and that she would at times smoke marijuana as a sleep aid аnd for anxiety. And the sweep revealed drug paraphernalia and an array of unsecured firearms and ammunition strewn about the home, including, in the bedroom, a pistol that Paola purchased.
Paola was indicted by a grand jury on two charges: (1) violating
Paola moved to dismiss her indictment, arguing that New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) showed that
II. STANDARD OF REVIEW
Constitutional questions receive de novo review. United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).
III. DISCUSSION
A. Evaluating Second Amendment challenges post-Rahimi 2024.
The Second Amendment protects the right of individuals to “keep and bear” firearms for their self-defense.
We look to our nation‘s “‘historical tradition of firearm regulation’ to help delineate the contours of the right,” id. (quoting Bruen, 597 U.S. at 17), and ask “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition,” id. at 1898 (citing Bruen, 597 U.S. at 26-31). To do this, we must “ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.‘” Id. (quoting Bruen, 597 U.S. at 29) (alteration original). ”Why and how the regulation burdens the right are centrаl to this inquiry.” Id. (citing Bruen, 597 U.S. at 29) (emphasis added).
“Why” and “how” a regulation burdens the right presents two separate questions. Rahimi 2024 gives the following
The caselaw thus prescribes a two-step process for Second Amendment challenges. First, we ask whether the Second Amendment‘s plain text covers an individual‘s conduct. Bruen, 597 U.S. at 17. Second, we ask “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Rahimi 2024, 144 S. Ct. at 1898 (citing Bruen, 597 U.S. at 26-31). It is the government‘s burden to demonstrate that the challenged regulation is “‘relevantly similar’ to laws our tradition is understood to permit.” Id. (quoting Bruen, 597 U.S. at 29). It does so by finding and explicating “historical precursors” supporting the challenged law‘s constitutionality. Id.
The challenged and historical laws are “relevantly similar” if they share a common “why” and “how“: they must both (1) address a comparable problem (thе “why“) and (2) place a comparable burden on the right holder (the “how“). Id.; Bruen, 597 U.S. at 27-30. The government “need not [present] a ‘dead ringer’ or ‘historical twin‘” to be successful; it can also present an analogous historical regulation with a sufficiently similar “why” and “how.” Rahimi 2024, 144 S. Ct. at 1897-98 (quoting Bruen, 597 U.S. at 30). Deciding whether a conceptual fit exists between the old law and the new requires the exercise of both analogical reasoning and sound judgment. Id. We hold the government to its heavy burden, as the Second Amendment “is not a second-class right.” Bruen, 597 U.S. at 70 (quoting McDonald, 561 U.S. at 780) (emphasis added).
B. Paola is presumptively protected by the Second Amendment.
The threshold question is whether the Second Amendment applies to Paola. The right to bear arms is held by “the peoplе.”
Marijuana user or not, Paola is a member of our political community and thus has a presumptive right to bear arms. By infringing on that right,
C. The government‘s proffered historical evidence fails to support § 922(g)(3) ‘s constitutionality as applied to Paola.
The government offers three buckets of historical analogues as support for
1. History and tradition surrounding laws disarming the mentally ill do not address a problem comparable to § 922(g)(3) .
The government offers Founding-era restrictions on mentally ill persons’ Second Amendment rights as being “relevantly similar” to
There are no clear sets of positive-law statutes concerning mental illness and firearms from the Founding. Indeed, “[o]ne searches in vain through eighteenth-century records to find any laws specifically excluding the mentally ill from firearms ownership.” Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 HASTINGS L.J. 1371, 1376 (2009). In fact, the federal ban on gun possession by those adjudged mentally ill was еnacted no sooner than 1968, the same year as
Of course, institutionalizing those so mentally ill that they present a danger to themselves or others does not give clear guidance about which lesser impairments are serious enough to warrant constitutional deprivations. We can assume that marijuana intoxication is, for our purposes, most analogous to short-term mental impairment.2 Dr. Benjamin Rush—who signed the Declaration of Independence—said a “temporary fit of madness” was a symptom of drunkenness. 2 Benjamin Rush, An Inquiry into the Effects of Ardent Spirits upon the Human Body and Mind 6 (8th ed., Boston, James Lording 1823). And Thomas Cooley described drunkenness as a form of “temporary insanity.” Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the American Union 660 n.1 (2d ed., Boston, Little Brown & Co. 1871). So, the same could be said of intoxication via marijuana.
But laws designed to disarm the severely mentally ill do not justify depriving those of sound mind of their Second Amendment rights. The analogy stands only if someone is so intoxicated as to be in a state comparable
to “lunacy.” Just as there is no historical justification for disarming citizens of sound mind, there is no
Continuing the comparison between the history and tradition of regulating access of the severely mentally ill to firearms and the regulation of intoxicated individuals’ Second Amendment rights shows that the government‘s position is untenable.3 The Founders purpоrtedly institutionalized “lunatics” and stripped them of firearms yet allowed alcoholics to carry firearms while sober (and possess them generally). See infra III(C)(3) (discussing intoxication laws). And like historical intoxication laws (which applied restrictions only to presently intoxicated persons, see infra III(C)(3)), “[o]ur common law heritage has long recognized that mental illness is not a permanent condition.” Tyler v. Hillsdale Cnty. Sheriff‘s Dep‘t, 837 F.3d 678, 710 (6th Cir. 2016) (Sutton, J., concurring) (evaluating relevant historical evidence under Heller, 554 U.S. 570) (citing William Blackstone, 1 Commentaries at *304–05; A. Highmore, A TREATISE ON THE LAW OF IDIOCY AND LUNACY 104 (1807)); see also Blackstone, 1 Commentaries, at *304 (“For the law always imagines that these accidental misfortunes may be removed ....“); Highmore at 73 (“A lunatic is never to be looked upon as irrecoverable.“).
Indeed, “[s]ince at least the timе of Edward I (1239–1307), the English legal tradition provided that those who had recovered their sanity should
have their rights restored.” Tyler, 837 F.3d at 710 (Batchelder, J., concurring) (citing Frederick Pollock & Frederic William Maitland, 1 THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I 507-08 (1898)). Confinement of the mentally ill was limited to as “long as such lunacy or disorder shall continue, and no longer.” Id. at 706 (quoting Care, supra, at 329) (emphasis added). “This comports with the Founding-era conception of rights because that which a person recovered when he overcame a serious mental illness was his reason, the faculty necessary to exercise his rights.” Id. (citations omitted). Whenever the “lunatic recover[ed] his senses,” he could be reevaluated, deemed healthy, and have his legal rights restored. See Highmore, supra, at 73; see also, e.g., Note, In with the One Step, Out with the Circuit Split: Post-Bruen Analysis of 18 U.S.C. § 922(g)(4), 85 OHIO ST. L. J. 113, 135-39 (collecting and analyzing relevant historical sources). So again, just as there is no historical justification for disarming citizens of sound mind (including those adjudged mentally ill but who have been reevaluated and deemed healthy, i.e., no longer under an impairing influence), there is no historical justification for disarming sober citizens not presently under an impairing influence. See infra III(C)(3) (discussing same in detail).
So we must ask: why was severe mental illness a reason the Founders disarmed people, and is that “why” “relevantly similar” to
So the Bruen-style analogical question is this: which is Paola more like: someone whose mental illness is so severe that she presents a danger to herself and others (i.e., someone who would be confined and deprived of firearms under this tradition and history of Second Amendment regulation)? Or a repeat alcohol user (who would not)? Paola falls into the latter camp. While intoxicated, she may be comparable to a severely mentally ill person whom the Founders would disarm. But, while sober, she is like a repeat alcohol user between periods of intoxication, whom the Founders would not disarm.
None of the regulatory tradition vis-à-vis the mentally ill supports
In short, historical regulations disarming the mentally ill do not seek to address a problem comparable to
2. History and tradition surrounding laws disarming “dangerous” individuals also do not address a problem comparable to § 922(g)(3) .
The government also contends that persons whom Congress deems “dangerous” can have their Second Amеndment rights stripped. In doing so, it posits that Paola—a non-violent marijuana user—falls into the category of “dangerous.” But our history and tradition of disarming “dangerous” persons does not include non-violent marijuana users like Paola. Indeed, not one piece of historical evidence suggests that, at the time they ratified the Second Amendment, the Founders authorized Congress to disarm anyone it deemed dangerous. Instead, the government presents a collection of different statutes disarming discrete groups of persons throughout history, which suggest an abstract belief that one‘s right to bear arms could be stripped if he were legitimately dangerous to the public.
The government‘s examples fall into two groups. First, lаws barring political dissidents from owning guns in periods of conflict. For example, many states barred those who refused to take an oath of allegiance during the Revolutionary War from owning guns. See, e.g., 4 Journals of the Continental Congress 201-06 (1906) (1776 resolution); 1775–76 Mass. Acts 479; 1777 Pa. Laws 63; 1777 N.C. Sess. Laws 231; 1776–77 N.J. Laws 90. Second, laws that disarmed religious minorities—especially Catholics. See, e.g., 3 Jac. I, c.5, §§ 16-18 (1605-06); 1 W. & M. c.15, §§ 3-4 (1688); 7 Will. III c.5 (1695) (Ireland); Act of March 25, 1756, ch. 4, reprinted in 7 STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF THE LEGISLATURE IN THE YEAR 1619, at 9, 35-36 (William Waller Hening ed., Richmond, Franklin Press 1820) (disarming “Papists” because it was “dangerous at this time to permit [them] to be armed“).
The government also offers the English Militia Act of 1662 as support, which gave officials sweeping power to designate someone as “dangerous” and so disarm him. But the Act‘s history shows that it merely served as cover for the widespread disarmament of Charles II‘s and James II‘s political opponents. Nelson Lund, The Past and Future of the Individual‘s Right to Arms, 31 GA. L. REV. 1, 8 (1996) (discussing same in greater detail). And it was reined in rather quickly too.
After the Glorious Revolution, which enthroned Protestants William and Mary, the Declaration of Rights, codified as the 1689 English Bill of Rights, qualified the Militia Act by guaranteeing “[t]hat the subjects which are Protestants may have arms for their defence suitable to their Conditions and as allowed by Law.” 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. “This right,” which restricted the Militia Act‘s reach in order to prevent the kind of politically motivated disarmaments pursued by Charles II and James II, “has long been understood to be the predecessor to our Second Amendment.” Heller, 554 U.S. at 593. And “when it comes to interpreting the Constitution, not all history is created equal. ‘Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.‘” Bruen, 597 U.S. at 4 (quoting Heller, 554 U.S. at 599) (emphasis original). So the Militia Act, passed to disarm political dissidents and reined in well before the Founding by the English Bill of Rights, almost certainly does not survive the Second Amendment‘s categorical command, at least vis-à-vis offering a “why” comparable to
Nevertheless, an undeniable throughline runs through these sources: Founding-era governments took guns away from those perceived to be dangerous. Indeed, Rahimi 2024 discusses this history vis-à-vis
It is not. The government identifies no class of persons at the Founding who were “dangerous” for reasons comparable to marijuana users. Marijuana users are not a class of political traitors, as English Loyalists were perceived to be. Nor are they like Catholics and other religious dissenters who were seen as potential insurrectionists.
And
Even as the Founders disarmed Catholics and politically disaffected citizens, they left ordinary drunkards unregulated. See III(C)(3) (discussing same). The government provides no meaningful response to the fact that neither Congress nor the states disarmed alcoholics, thе group most closely analogous to marijuana users in the 18th and 19th centuries. As with the analogy to mental illness, we must ask: Which are marijuana users more like: British Loyalists during the Revolution? Or repeat alcohol users? The answer is clearly the latter, so the government‘s attempt to analogize non-violent marijuana users to “dangerous” persons fails to present a “relevantly similar” “why.” Rahimi 2024, 144 S. Ct. at 1898; Bruen, 597 U.S. at 27-30.
3. History and tradition surrounding intoxication laws may address a problem comparable to § 922(g)(3) , but do not impose a comparable burden in doing so.
There was very little regulation of drugs (related to firearm possession or otherwise) until the late 19th century, so intoxication via alcohol is the next-closest “historical analogue” that we can look to. See, e.g., David F. Musto, The American Experience with Stimulants and Opiates, 2 PERSPS. ON CRIME & JUST. 51, 51 (1998) (“[M]ost [non-alcoholic] drugs were not familiar products early in the 19th century . . . .“); Richard J. Bonnie & Charles H. Whitebread, II, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, 56 VA. L. REV. 971, 985–87, 1010–11 (1970) (describing how American society gradually realized the social effects of narcotics in the late 1800s and began regulating them at the turn of the century); id. at 1011 (“[From 1914–31], we can find no evidence of public concern for, or understanding of, marijuana, even in those states that banned it.... Observers in the middle and late 1930‘s agreed that marijuana was a very new phenomenon on the national scene.“). And early Americans, including the Founders, consumed copious amounts of alcohol.4
The Founders were well familiar with the commonsense notion that those presently impaired by alcohol lack the restraint needed to handle firearms safely. See
i. Founding-era laws.
Founding-era laws concerning guns and alcohol were few, and primarily concerned with (1) misuse of weapons while intoxicated and (2) disciplining state militias. For example, a 1655 Virginian law banned “shoot[ing] and gunns at drinkeing.” Acts of Mar. 10, 1655–56, Act 12, reprinted in 1 THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE IN THE YEAR 1619, at 401, 401–02 (William Waller Hening ed., New York, R. & W. & G. Bartow 1823). But this statute is not like
The government also offers a 1771 law from New York, which banned сitizens from firing guns during New Year‘s celebrations. Act of Feb. 16, 1771, ch. 1501, reprinted in 5 THE COLONIAL LAWS OF NEW YORK FROM THE YEAR 1664 TO THE REVOLUTION 244, 244-245 (Albany, James B. Lyon 1894). But while this law was passed for a similar purpose as
Beyond these generally inapposite colonial statutes—separated by over a century—the government offers no Founding-era law or practice of disarming ordinary citizens for drunkenness, even if their intoxication was routine. Instead, it offers laws regulating militia service.
For example, soldiers in New Jersey could be “disarm[ed]” if they appeared for militia service “disguised in Liquor.” Act of
Again, this comparison misses the mark. The purpose behind these militia laws concerns military service—intoxicated servicemembers cannot perform their duties while impaired. More than that, these laws applied only to militia members; none of them spoke to a militia member‘s ability to carry outside of military service. Then, as today, restrictions on the liberties of service members tell us little about the limits acceptable for citizens at large.
Considering the “extremely high level of alcohol consumption” “[i]n the early Republic,” this handful of generally inapposite laws does little to help the government‘s position. Musto, supra, at 52. The government fails to identify any relevant Founding-era tradition or regulation disarming ordinary citizens who consumed alcohol.
ii. Post-Reconstruction laws.
Again, “when it comes to interpreting the Constitution, not all history is created equal. ‘Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.‘” Bruen, 597 U.S. at 4 (quoting Heller, 554 U.S. at 599) (emphasis original). And “becausе post-Civil War discussions of the right to keep and bear arms ‘took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.‘” Id. at 36 (quoting Heller, 554 U.S. at 614). So, “we must . . . guard against giving postenactment [sic] history more weight than it can rightly bear.” Id. at 35.
With that in mind, the government‘s proffered Reconstruction-era evidence does little to validate
That‘s a problem for the government. Bruen doubted that three colonial-era laws could suffice to show a tradition. Bruen, 597 U.S. at 46 (“For starters, we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation.“) (emphasis original). Offering three laws passed scores of years post-Ratification (and a fourth passed nearly half a century beyond that) misses the mark by a wide margin. See id. at 35–36.
* * *
Boiled down,
As applied to Paola,
Paola stated that she would at times partake as a sleep aid or to help with anxiety, but we do not know how much she used at those times or when she last used, and there is no evidence that she was intoxicated at the time she was arrested. Indeed, under the government‘s reasoning, Congress could (if it wanted to) ban gun possession by anyone who has multiple alcoholic drinks a week from possessing guns bаsed on the intoxicated carry laws.
The analogical reasoning Bruen and Rahimi 2024 prescribed cannot stretch that far. The history and tradition before us support, at most, a ban on carrying firearms while an individual is presently under the influence. By regulating Paola based on habitual or occasional drug use,
D. § 922(g)(3) is facially constitutional.
Paola also levied a facial challenge at
The government made such a demonstration. As discussed above, our history and tradition of firearms regulation show that there are indeed some sets of circumstances where
E. § 922(d)(3) is facially constitutional.
Paola also levied a facial challenge at
IV. CONCLUSION
Paola‘s