Hopefully, a short one.
4473 and the Gun Control Act of 1968, as amended
All of us have had the pleasure of filling out a form 4473, waiting for some bureaucrat decides that we are good enough to exercise our right to keep and bear arms, and finally give us permission. Most of form 4473 is bogus. It is designed to do a few things.
To capture owner identification and associate it with one or more firearms, a registry. To for the seller to keep an accurate inventory. And to catch people out in lies or mistakes.
The ONE reason it supposedly exists, is to allow the government to do a background check. Are you a prohibited person?
Now, let’s say you or I go in and lie on the 4473. It doesn’t matter where, it is a lie designed to allow us to purchase this particular firearm. If we are not prohibited people, we are guilty. On the other hand, the courts have ruled that it is a Fifth Amendment violation for a prohibited person to self report on a 4473.
Yep, if you are an actual prohibited person, and you lie about it on a 4473, you don’t get in trouble. If you are not a prohibited person and lie, you do get in trouble.
All the authority for the ATF to force the 4473 on us comes from the Gun Control Act of 1968, as amended. In particular, §922(g).
§922(g) is the list of things that make you a prohibited person.
§922(g)3 is the prohibition on being an “unlawful user” of a controlled substance. I.e., they partake of marijuana or other drugs.
Our story begins when Patrick Darnell Daniels, Jr, was driving along, minding his own business, when a couple of LEOs pulled him over. They pulled him over for driving without a license plate.
It just so happened that one of these officers was a DEA agent. It is almost as if the DEA agent was looking for reasons to “investigate” vehicles he was interested in.
The DEA agent claims to have smelled marijuana. This was used to gain access to the vehicle to search it. The DEA agent found a couple of roaches in the ashtray. Further searches of the vehicle turned up a 9 mm pistol and a “semi-automatic rifle”. (You just know they are not talking about your grandfather’s M1 Garand.)
He admitted that he used marijuana regularly. He was charged with a violation of 18 U.S.C. §922(g)3
—Unlawful Acts, 18 U.S.C. § 922 (U.S. 1968)
Case law says:
—United States V. Daniels, No. 22-60596 (5th Cir. Aug. 9, 2023)
This is the Fifth Circuit court citing themselves, correctly. Notice that the plain text of the regulation says nothing about regular or “temporal proximity”. Since the 5th Cir. did not cite the Supreme Court, it is unlikely that the Supreme Court has made such a ruling.
Once Bruen was decided, Mr. Daniels moved to have the indictment dismissed. He claimed that §922(g)3 was unconstitutional.
The district court disagreed and denied the motion. Daniels then appealed to the 5th Circuit.
The Fifth Circuit Courts Opinion
The court clearly states that §922g(3) is covered under the plain text of the Second Amendment. At that point, the burden shifts to the government to show a historical tradition of regulations that are analogous to the current regulation, §922(g)3.
The government failed.
The court then proceeds to kick the government to the curb. They, rightly, point out that there is a huge difference between a few regulations from the founding era regarding temporarily disarming intoxicated individuals and complete prohibition on owning firearms.
I think this is my favorite quote from the Fifth’s opinion:
—Unlawful Acts § 922
A three judge panel of the Fifth Circuit court found another brick in the wall of gun-control that is Unconstitutional. They have yanked it out. It is likely that most of the GCA will be found Unconstitutional over time.
The government will appeal this case. That means it will go to the en banc panel. If the Fifth declines to hear the case en banc, it will be appealed to the Supreme Court.
The Government cannot afford to lose this or Rahimi. If they do, they will have lost two big parts of the prohibited people portions of the GCA. Each time the state loses one of these cases, the next case becomes easier for us to win.