United States v. Gil

In United States v. Gil, No. 23-50525 (5th Cir. May 15, 2024) (unpublished), the Fifth Circuit vacated the defendant’s conviction for being an unlawful drug user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3) so that the district court could consider his argument that the statute is unconstitutional as applied to him.

When the district court originally denied Gil’s constitutional challenge, the Fifth Circuit had not yet issued its opinion in United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), petition for cert. filed, No. 23-376 (U.S. Oct. 10, 2023). For that reason, the court applied United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023), and found that Gil’s possession of firearms is covered by the Second Amendment but “the historical tradition of disarming presumptively dangerous groups … supports the constitutionality of § 922(g)(3), because unlawful drug users and addicts, especially those with guns, pose a risk to society.”

After that decision, the Fifth Circuit issued Daniels, which held that § 922(g)(3) was unconstitutional as applied to the defendant because there was no evidence he was intoxicated at the time of arrest, and there was no evidence of when he last used marijuana. The court noted that “there is a considerable difference between someone who is actively intoxicated and someone who is an ‘unlawful user’ under § 922(g)(3).” Daniels, 77 F.4th at 347–48.

The Fifth Circuit remanded Gil’s case for the district court to consider three issues in the first instance: (1) was Gil intoxicated when he possessed firearms, and if so, would that “satisfy a finding of constitutionality under Daniels”; (2) whether “Gil’s drug use rendered him continually impaired or mentally ill because he used marihuana daily to self medicate and stated in a letter to the district court prior to sentencing that he had a mind ‘like the mind of any addict,’” and if so, whether that would satisfy a finding of constitutionality; and (3) “whether Gil, as a regular marihuana user or addict, was part of a dangerous group analogous to political and religious dissidents who could be disarmed at the time the Second Amendment was ratified.”