B.L.U.F. Another case where a Judge used Bruen to come to the correct decision. This This one is §922(g)3 and §922(d)2. This is a criminal case in front of a US Federal Judge for the Western District of Texas. It highlights how case law works.

History

On December 28, 2021 the El Paso Police Department responded to a 911 call. Transcripts are not available nor needed. When the police arrived they heard several gunshots and observed Paola’s husband with a shotgun at the neighbors house. The police then arrested Paola’s husband.

From this they managed to get permission to conduct[ed] a protective sweep of Connelly’s house &mcite; Order on Motion for Reconsideration P. 1. The cops found evidence of firearms and marijuana. From this they called in the ATF.

The ATF searched the house and found 1.2 grams of marijuana, 0.21 grams of marijuana extract, 27.74 grams of “THC Edible” and 37.74 grams of suspected psilocybin — Id. as well as multiple firearms and ammunition.

Paola through her husband under the bus, accusing him of smoking crack. She was then asked about her own drug use and told the cops …she uses marijuana on a regular basis “to sleep at night and to help her with anxiety.” — Id. at 2.

If this was the locals then it would have likely meant nothing more than the loss of her pot. Because the feds were involved, it now became a felony charge:

The second count, transfer or sale to a prohibited person is charged because the lived together. Since he had access and could have gotten the firearms the state argues that she had transferred the firearms to her husband. It is unclear who owned the shotgun he used.

October 18, 2022 Paola filed to have the charges dismissed. Her argument was that post Bruen §922(g)(3) and §922(d)(3) were unconstitutional under the second amendment because the denied her rights to keep and bear arms while the state was unable to find an similar regulation from the founding era. She also argued that the law was unconstitutional under the fifth amendment because it was vague. What does addicted mean? What does “user” mean?

She points out that under the dictionary definition, user could mean anybody that ever took a toke.

Her motion to have her indictment dismissed was denied on December 21, 2022.

The Second Try

The judge’s ruling in December was based on case law. The case law in question was established by the Fifth Circuit Court, prior to Bruen. The Fifth Circuit affirmed that this was good case law on June 8th of 2022 United States v. Rahimi (5th Cir. 2021) ECF No. 68.

The original decision by the Fifth Circuit was based on its previous order.

A bit later the Fifth Circuit court reached out and said “We want to look at this case again.” and on March 2, 2023 they vacated the conviction.

At this point, the original Fifth Circuit court opinion was no longer good case law. Because of this Connelly moved to have the district court reconsider its order denying the motion for dismissal.

The district court analyzed the Rahimi opinion from the 5th Cir. and came to the conclusion that the opinion was not tightly bound to just TROs. Though it did not mention May or Patterson specifically, the Court finds that Rahimi recognized the abrogation of those precedents as well. — Id. at 6. This meant that the district court could look at this case in light of the Bruen decision, and it did.

The Beautiful Two Step Shuffle of Bruen

The court used the first step, was Connelly’s Second Amendment rights infringed upon? The Court had a resounding “yes” to that.

This means that the second step was now required, the state must prove a history and tradition of regulations that match the regulation being challenged, §922(g)(3) and §922(d)(3).

The question the court put to the state was: Provide relevantly similar regulations from the 18th century.

The State Claims She’s Not Part of The People

The state uses two arguments the first being historical regulations but the place they want the court to start is to rule that Paola isn’t a part of “The People” because she an “unvirtouse” individual.

Here the court finds that while there were regulations regarding the carrying of weapons while intoxicated, that only applied to public intoxication. Paola’s use of pot was done in her home and according to William Blackstone private intoxication is only subject to “eternal justice” not “punishments of human tribunals”. A little bit of wiggle in there but not bad.

The State’s Historical Regulations

Here we are seeing what could be an issue moving forward. Under means-end the courts used intermediate-scrutiny vs. strict-scrutiny. When the court decided to use strict-scrutiny we, The People, won. When the court decided to use intermediate-scrutiny we lost.

Post Bruen the state is trying to set up a similar type of analysis. That being of what level of relevance is needed with historical analogies. Those cases where the laws must be “distinctly similar” and laws which must only be “relevantly similar”. With a third category being twisted via a “more nuanced approach” to “relevantly similar”.

Because the 5th Cir. used “relevantly similar” this district court choose to use relevantly similar as well. This is a safe choice.

The state used regulations forbidding going armed while intoxicated. The court shot that one down nicely.

This should be quoted in any case where the state argues that carrying while intoxicated allows them to infringe today.

Of course the state wants to use reconstruction-era laws. As stated before, when the 14th amendment was ratified the states were voting to accept what the bill of rights meant when they were ratified. They were not getting a do over.

Interestingly the court decides that Paola’s Second Amendment rights were not implicated in the conduct of transfering a firearm to her husband. That it was his rights that were infringed. The court says that Paola doesn’t really have standing because of that. The court then continues with: but the state charged her which gives her the standing to question the constitutionality of that law.

Conclusion

And with that the court dismissed the charges against Paola Connelly.