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

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

is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))
Unlawful Acts, 18 U.S.C. § 922 (U.S. 1968)

Case law says:

An “unlawful user” is someone who uses illegal drugs regularly and in some temporal proximity to the gun possession. See United States v. McCowan, 469 F.3d 386, 392 (5th Cir. 2006).
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 question is whether Daniels’s conviction violates his right to bear arms. The answer depends on whether §922(g)(3) is consistent with our nation’s “historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is a close and deeply challenging question.

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.

Even so, the government has the burden to find and explicate the historical sources that support the constitutionality of § 922(g)(3). Rahimi, 61 F.4th at 455 (citing Bruen, 142 S. Ct. at 2132–33). Here, the government’s proffered analogues fall into three general buckets: (1) statutes disarming intoxicated individuals, (2) statutes disarming the mentally ill or insane, and (3) statutes disarming those adjudged dangerous or disloyal. …

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.

In short, neither the restrictions on the mentally ill nor the regulatory tradition surrounding intoxication can justify Daniels’s conviction. Perhaps the government could show that the drugs Daniels used were so powerful that anyone who uses them is permanently impaired in a way that is comparable to ongoing mental illness. Or the government could demonstrate that Daniels’s drug use was so regular and so heavy that he was continually impaired. Here, it has shown evidence of neither.

I think this is my favorite quote from the Fifth’s opinion:

Furthermore, even as the Founders were disarming Catholics and politically disaffected citizens, they left ordinary drunkards unregulated. The government has no meaningful response to the fact that neither Congress nor the states disarmed alcoholics, the group most closely analogous to marihuana users in the 18th and 19th centuries. As with the government’s analogy to mental illness, we must ask: Which are marihuana users more like: British Loyalists during the Revolution? Or repeat alcohol users? The answer is surely the latter.
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.

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By awa

2 thoughts on “United States v. Daniels, 22-60596 (5th Cir. 2023)”
  1. The NICS Background Check System has always been a ruse designed during the Clinton administration. It’s never stopped a single criminal from obtaining a firearm. It does nothing the government says it does and everything the government says it doesn’t do.
    When Janet Reno was asked about who gave her the authority and power to keep records of firearms transactions when the law clearly directed her “destroy all records” she said, “Congress did not say that I have to destroy the records immediately, therefore I am empowered to retain the records.”
    The DC Court of Appeals said this in conclusion to Janet Reno’s reasoning, “The Attorney General’s position strikes me as reminiscent of a petulant child pulling her sister’s hair. Her mother tells her, “Don’t pull the baby’s hair.” The child says, “All right, Mama,” but again pulls the infant’s hair. Her defense is, “Mama, you didn’t say I had to stop right now.”
    I believe it was Alan Korwin who wrote an article exposing the outright lies of Clinton-Reno. One was that they built a 250-million-dollar computer which could not erase records, so therefore they could not do what they by law were supposed to do and second, that they would get it done, but instead switched the illegal process over to the FBI instead of the ATF (I hope I got that part remembered correctly) and the entire process is in a guarded state not available to the public or any other agency for review but is used by the FBI regularly to the day.
    If anyone has a correction, please do so, my memory isn’t getting any younger.

  2. Fully agree there is nothing to it except a registry. When I was selling guns the druggies would either get denied by coming in high and reeking of pot, one guy asked if he took a car for a test drive and never returned it and did time if that would show on his background check. Bunch of attempted straw purchases and denials on felons, poachers, and the like. Sheriffs department never wanted to follow up oddly.

    It was very interesting to see the opinions and how they came to them in this case. Thanks for sharing it

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