No Protection for Heroin Trafficker

On June 2, the Fifth Circuit decided United States v. Squire, which posed “a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation’s historical tradition of firearm regulation.”  As Senior Judge Edith Brown Clement wrote in the opinion, “our historical tradition supports disarming drug traffickers based on their dangerousness….”

Suspecting him of involvement in a shooting in New Orleans, police secured a warrant to search the home of Curtis Squire, where they found a handgun.  While the handgun was not found to have been used in the shooting, Squire was charged with felon-in-possession, 18 U.S.C. § 922(g)(1), based on his prior convictions of conspiracy and substantive counts of possession with the intent to distribute heroin, possession of a firearm with a controlled dangerous substance, and obstruction of justice.  In the same case, he had been convicted of a conspiracy count to possess stolen things, and in another case, burglary and unauthorized use of a motor vehicle.

Fifth Circuit precedent recognized § 922(g)(1) to be unconstitutional as applied to some felons, as “[s]imply classifying a crime as a felony does not meet the level of historical rigor required by Bruen and its progeny.”  Non-violent felonies such as marijuana possession without evidence of present intoxication were subject to as-applied challenges.  As the court wisely wrote, “If Congress could escape Bruen‘s reach by simply classifying a crime as a felony, we would be confined to uncritically rubber-stamping class-based determinations, subjecting disarmament laws to a form of rational-basis, government-always-wins, type of review.”  Those words are worth their weight in gold.

By contrast, predicate offenses involving a dangerous or violent crime justified disarmament.  For that proposition, the court saw no need to make out an empirical case for the fact that heroin trafficking while armed is dangerous and involves violence.  Drug gangs wage war with each other and with law enforcement.  Drug traffickers use threats of violence and violence to enforce their illegal dealings as well as to protect their turf.  And heroin is a type of poison on which users often overdose and die.  One who traffics in heroin poses a physical danger to others.

Instead, the Squire court conducted the usual Bruen analysis of looking at historical analogues, having already concluded that Mr. Squire’s ability to have a firearm in his home was covered by the Second Amendment’s plain text.  The English Militia Act of 1662 directed the disarming of “dangerous and disaffected persons,” even though, as Rahimi notes, the Glorious Revolution reduced the Crown’s power to do so.  Catholics were disarmed as not having loyalty to the government.  In the American Revolution, persons refusing to swear an oath of allegiance were disarmed.

Native Americans and African Americans were also disarmed.  While use of these analogues is problematic, the court explains: “Granted, these repugnant laws classifying people as dangerous simply on the basis of their race or religion are wrong and unconstitutional under the Fourteenth Amendment…. Nevertheless, these laws give us a glimpse into how early Americans understood their right to bear arms, how the legislature could determine classes of people to be dangerous, and the scope of their disarmament.”

The Supreme Court should use the opportunity in Wolford, which concerns Hawaii’s “vampire rule” banning exercise of Second Amendment rights in most public places, to disown the use of racist historical analogues.  My amicus brief in Wolford on behalf of the African American Gun Association makes that point in detail about an 1865 Louisiana black code provision.  And as Justice Kavanaugh wrote in his Rahimi concurrence: “Ratified in 1868, [the Equal Protection] Clause sought to reject the Nation’s history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution.”

Squire sought to distinguish his situation by the fact that he possessed the handgun at home, but the court found that argument to be “mugged by the reality that our historical laws support his disarmament, even in the special confines of his home.”  (I guess “mugged” is a term Squire would readily understand.)  As the court concluded, “§ 922(g)(1) as applied to drug traffickers permits arms dispossession based on dangerousness, not location.”  That is a narrow holding, as “We do not decide whether the Second Amendment allows Congress to disarm individuals in the home based on convictions lacking a relevantly similar historical analogue to dangerousness, violence, or threats to public order.”

The panel distinguished other courts that have refused to recognize any as-applied challenge to the felon-in-possession ban by postulating the basic difference between dangerous and violent crimes from mala prohibita, victimless crimes such as mere possession of marijuana.  We’ll see what the Supreme Court says about that when it decides Hemani, which presents the question, “Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who ‘is an unlawful user of or addicted to any controlled substance,’ violates the Second Amendment as applied to respondent.”  See my post here.

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In footnote 1 of Squire, Judge Clement rejected the argument that the ban exceeds Congress’s power under the Commerce Clause as foreclosed by circuit precedent.  Unsuccessful attempts to rein in Congress on the issue included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus.  Based on the Supreme Court’s decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent.  Query whether the Supreme Court will ever return to the premise that local crime is not interstate commerce.