A federal court system encompassing Wyoming and its southern neighbors is considering whether a federal law barring drug users from owning guns is unconstitutional.
The U.S. District Court for Utah in June 2022 ruled that the statute, USC 18 922(g)(3), is not constitutional becuase it’s so vague it violates people’s Fifth Amendment right to fair prosecutions.
The law foists upon judges and prosecutors a duty that should belong to lawmakers: determining what makes someone a “user;” and for how long and how recently does a person have to do drugs to be considered a “user,” the ruling says.
If the 10th Circuit Court of appeals upholds the Utah court’s ruling, not only Utah but all its federal sister-courts in the 10th Circuit will view the law as unconstitutional. Those are in Wyoming, Colorado, Kansas, New Mexico and Oklahoma.
A 10th Circuit panel of three judges heard arguments on the law Tuesday.
It’s the same violation of which the president’s son, Hunter Biden, stands accused in the U.S. District Court for Delaware. Though a 10th Circuit ruling against the law wouldn’t negate the case against the president’s son in a courtroom across the country, it would be the latest in a recent barrage of judicial erosions of the statute.
Users And Guns
The case stems from Jan. 10, 2020, when Jonathan Alexander Morales-Lopez and another man, Jose Amaya, arrived at a Sportsman’s Warehouse in Midvale, Utah.
Amaya stole guns and ammunition at the store, while Morales went to the front of the store, and soon emerged to find police outside.
Police arrested Morales, searched him and found on him a firearm that someone else had stolen days earlier. They didn’t find drugs during that search, but they later found about 5.7 grams of methamphetamine in the officer’s back seat after Morales had a ride in the patrol car.
Amaya’s Nissan also contained a used meth pipe and some meth in the driver’s door panel.
Citing these findings as evidence that Morales was a drug user in possession of a firearm, the federal prosecutor’s office charged him with violating the statute in question by being an illegal drug user in possession of a gun.
However, Morales said in his own interview that he hadn’t used drugs for at least five weeks before his arrest.
For Everyone, Or Just For You
The United States government appealed, saying Utah’s federal District Court Judge Jill N. Parrish made a mistake in her ruling last year. She was supposed to make Morales first prove that the law was unconstitutional under the unique circumstances of his own case before letting him mount an all-out challenge claiming it is unconstitutional for everybody, the government claimed.
Also, Morales couldn’t win a case in which judges studied his own conduct under the law’s language, argued the government’s attorney, Nathan Jack, during the Tuesday hearing.
Morales’ actions fell squarely within the behavior the statute outlaws, Jack added.
One of the judges questioned this. He asked Jack if the drugs found near Morales absolutely indicate drug use, or if they could indicate drug trafficking instead.
Jack said authorities can reasonably infer that Morales was a drug user when found with a gun.
But When Are You Ripe For Buying Guns?
Scott Keith Wilson, Morales’ attorney, launched the opposite argument, saying not only was Judge Parrish right to declare the law unconstitutional, but Morales could also win a case by showing it was unconstitutional as applied to his own arrest.
There’s no way Morales could know the federal government would label him a drug user five weeks after his last admitted usage, Wilson argued.
Case law surrounding this statute dictates that illegal drug users are people who have used drugs regularly over a period of time “proximate to or contemporaneous with” having a gun.
Wilson cast this as a nebulous standard that puts gun owners on slippery ground with respect to the law.
“What is ‘regular?’ Daily? Weekly? Annually?” wrote Wilson in his brief ahead of the argument Tuesday. “And what is ‘proximate?’ Again, an entirely undefined period of time which provides no notice whatsoever.”
Wilson questioned when, if ever, a person would be ripe to buy a gun after eating a cannabis edible.
All Hail The Second Amendment
One of the judges called into question Wilson’s second main argument: that a person’s Second Amendment rights should heighten judges’ protective instincts and invoke rigorous tests for whether gun laws are written too vaguely or too broadly.
Judges should look at laws implicating Second Amendment rights on the same, almost-holy level with which they scrutinize laws implicating people’s First Amendment rights, Wilson argued.
He referenced language from the U.S. Supreme Court landmark case New York State Rifle & Pistol Ass’n Inc. v. Bruen.
In that case, the high court equated Second Amendment rights with First Amendment rights.
Wilson’s request for the 10th Circuit to act on that language and invalidate 922(3)(g) is a bold new venture.
“What do we do with that here?” asked a judge of Wilson during Tuesday’s argument. “Because – and I’m not blaming you for it – but that’s new.”
“This is a purely legal question,” said Wilson. “Obviously, it’s not one that’s been raised before because Bruen is a new decision, (but) I think it emphasizes the fundamental nature of the Second Amendment.”
The court concluded the oral argument Tuesday morning and will now consider the questions of the case, and whether to send Judge Parrish’s ruling back to her court with corrective instructions for her, or to uphold it.
Clair McFarland can be reached at clair@cowboystatedaily.com.
