United States v. Connelly

Notable Items:

Issue(s) Before the Court:

Plaintiff's Claim(s):

Defendant's Claim(s):

Holding(s) and Disposition:

Material Facts:

• On December 28, 2021, the El Paso Police Department (“EPPD”) responded to an emergency call placed by Connelly’s neighbor.
• EPPD officers then arrested Connelly’s husband and conducted a protective sweep of Connelly’s house, during which the officers saw several firearms, “observed what appeared to be a homemade marihuana greenhouse,” ....
• Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) officers also located multiple firearms and ammunition during their search of Connelly’s house.
• When asked about her drug use, Connelly told investigators that she uses marijuana on a regular basis “to sleep at night and to help her with anxiety.”
• Based on these facts, Connelly was indicted with one count of possession of a firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). Superseding Indictment 1–2.
• Connelly was also indicted with one count of transferring a firearm and ammunition to her husband, an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(d)(3).

Procedural History:

• Connelly moved to dismiss her indictment, arguing that § 922(g)(3) and (d)(3) violated the Second Amendment and the Due Process Clause of the Fifth Amendment. Def.’s Am. Mot. Dismiss Indictment (“Mot. Dismiss”) 1, ECF No. 65.
• On December 21, 2022, the Court denied Connelly’s Motion to Dismiss because Fifth Circuit precedent precluded both of Connelly’s arguments.
• On February 3, 2023, Connelly moved for reconsideration of the Court’s Order in light of the Fifth Circuit’s decision in United States v. Rahimi, 61 F.4th at 448 (5th Cir. 2023).
• ... neither party has filed anything further regarding the Motion for Reconsideration.

Rationale

Majority Opinion

• Part II Standard, A. Motion for Reconsideration
• And courts regularly reconsider civil orders when the parties “bring an intervening change in the controlling law to the Court’s attention.” United States v. Quiroz, --- F. Supp. 3d ----, 2022 WL 4352482, at *2 (W.D. Tex. Sept. 19, 2022)
• Part II Standard, B. Motion to Dismiss
• Federal Rule of Criminal Procedure 12 allows a party to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1).
• Part III Analysis A. Whether the Motion is appropriate for pretrial resolution
• As a preliminary matter, the Court considers whether the Motion to Dismiss, as re-urged in the Motion for Reconsideration, can be properly considered at this stage of the proceedings.
• “If a question of law is involved, then consideration of the motion is generally proper.” United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005)
• But even if Connelly and her husband used controlled substances to the extent alleged by the Government, the Court would find § 922(g)(3) and (d)(3) unconstitutional for the reasons discussed below.
• Part III Analysis B. The impact of Bruen and Rahimi on May and Patterson
• Though it did not mention May or Patterson specifically, the Court finds that Rahimi recognized the abrogation of those precedents as well.
• And because it nullified the basis for the Court’s prior Order, Rahimi constitutes an intervening change in the law warranting reconsideration.
• Part III Analysis C. Bruen’s two-step framework
• First, the Court must “determine whether ‘the Second Amendment’s plain text covers an individual’s conduct.’” If so, then [secondly,] the ‘Constitution presumptively protects that conduct,’ and the Government ‘must justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.’” To carry its burden, the Government must point to ‘historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.’”
• Part III Analysis D. Scope of “the people” covered by the Second Amendment
• Before analyzing whether Connelly’s conduct falls within the scope of the Second Amendment at step one of the Bruen framework, the Court must consider whether Connelly as an individual can claim protection under the Second Amendment.
• If Rahimi can claim the Second Amendment’s protection, then Connelly can as well.
• Part III Analysis E. Constitutionality of § 922(g)(3) 1. Conduct
• Under Bruen and Rahimi, the Court must first decide whether § 922(g)(3) burdens conduct protected by the Second Amendment.
• Accordingly, § 922(g)(3) burdens conduct protected by the Second Amendment.
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification
• Turning to Bruen’s second step, the Court must consider whether the Government has demonstrated that § 922(g)(3) “is consistent with this Nation’s historical tradition of firearm regulation.”
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification a. Laws on intoxication i. Colonial Virginia law
• But even if the laws’ underlying purposes were deemed relevantly similar, they differ in how they regulate firearm use in two critical respects: the Virginia law prevented individuals from using firearms while actively intoxicated, while § 922(g)(3) prevents users of intoxicants from possessing firearms altogether. [emphasis in original] [driving while drunk vs owning a car while drunk]
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification a. Laws on intoxication ii. Colonial New York law
• And much like the Virginia law, the New York law limited the regulated activity to gun use, rather than gun possession. Id. at 245. Unlike § 922(g)(3), the New York law thus left ample room for individuals to keep guns in their homes for self-defense, even during the holiday period. [between December 31 and January 2]
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification a. Laws on intoxication iii. Reconstruction-era laws
• Here, the Court has even less reason to consider Reconstruction-era evidence than the Bruen Court did.
• But § 922(g)(3) is a federal law, and the Second Amendment has applied against the federal government since the ratification of the Bill of Rights in 1791.
• To summarize, the historical intoxication laws cited by the Government generally addressed specific societal problems with narrow restrictions on gun use, while § 922(g)(3) addresses widespread criminal issues with a broad restriction on gun possession. The laws, therefore, are not relevantly similar in how and why they regulate firearms, and do not suffice to establish the constitutionality of § 922(g)(3). [emphasis in original]
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification b. Broader categorical restrictions i. “Unvirtuous” individuals
• First, it is unclear whether legal authorities at the founding era would consider Connelly’s homebound drug use “unvirtuous.” [Blackstone: “public and private vices,”]
• And more generally, nothing in § 922(g)(3) limits its applicability to public dangers or active intoxication, putting it out of step with colonial-era attitudes.
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification b. Broader categorical restrictions ii. Individuals who are “not law-abiding”
• But “no one even today reads [Second Amendment history] to support the disarmament of literally all criminals, even nonviolent misdemeanants.” Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J., dissenting)
• The longstanding prohibition on possession of firearms by felons requires the Government to charge and convict an individual before disarming her.
• But § 922(g)(3) does not provide for any pre-deprivation process, criminal or otherwise. This lack of process makes § 922(g)(3) an “outlier in our legal tradition.” Harrison, 2023 WL 1771138, at *9.
• The law thus deviates from our Nation’s history of firearm regulation.
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification b. Broader categorical restrictions iii. “Dangerous” individuals
• As Rahimi acknowledged, many of the colonial and early American laws that disarmed individuals targeted those who refused to take an oath of allegiance, or “breakers of the peace” that “go armed offensively.”
• Finally, even if history broadly supports disarming dangerous individuals, there is little evidence that Connelly herself is dangerous. The Government has not alleged that she committed any violent or threatening acts.
• Thus, the Government has failed to carry its burden to demonstrate that § 922(g)(3) is “consistent with the Nation’s historical tradition of firearm regulation.”
• Part III Analysis F. Constitutionality of § 922(d)(3)
• Connelly also argues that § 922(d)(3)—the law giving rise to Count Two of her indictment—is unconstitutional under Bruen.
• Part III Analysis F. Constitutionality of § 922(d)(3) 1. Conduct
• However, another Ninth Circuit decision, Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017) (en banc), provides a compelling framework for analyzing this split in authority.
• Teixeira thus indicates that restrictions on the sale of firearms can burden conduct protected under the Second Amendment, but only if they significantly burden the ability of individuals to acquire firearms.
• Applying this principle to the case at hand, the Court finds that § 922(d)(3) burdens conduct protected by the Second Amendment.
• Part III Analysis F. Constitutionality of § 922(d)(3) 2. Historical justification
• But Connelly also raises a facial challenge to § 922(d)(3).
• Here, Connelly’s husband may pose a danger to the public similar to the one posed by Rahimi. But § 922(d)(3), as written, also effectively disarms individuals who do not pose the same kind of threat. Moreover, § 922(d)(3) does not tie its restrictions on gun use to intoxication or public safety in the way that historical gun regulations did. Nor does it provide the predeprivation process that laws disarming dangerous individuals historically required.
• In sum, § 922(d)(3) does not withstand Second Amendment scrutiny for much the same reasons that § 922(g)(3) does not.
• Part IV Conclusion
• For the foregoing reasons, Connelly’s Motion to Reconsider, ECF No. 86, is GRANTED. The Court ORDERS that the offenses charged in Counts One and Two of the Superseding Indictment, ECF No. 44, are DISMISSED.
• A full description of the rationale is available below

Majority Full Argument

• Part II Standard, A. Motion for Reconsideration
• And courts regularly reconsider civil orders when the parties “bring an intervening change in the controlling law to the Court’s attention.” United States v. Quiroz, --- F. Supp. 3d ----, 2022 WL 4352482, at *2 (W.D. Tex. Sept. 19, 2022)
• Part II Standard, B. Motion to Dismiss
• Federal Rule of Criminal Procedure 12 allows a party to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1).
• Part III Analysis A. Whether the Motion is appropriate for pretrial resolution
• As a preliminary matter, the Court considers whether the Motion to Dismiss, as re-urged in the Motion for Reconsideration, can be properly considered at this stage of the proceedings.
• “If a question of law is involved, then consideration of the motion is generally proper.” United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005)
• But even if Connelly and her husband used controlled substances to the extent alleged by the Government, the Court would find § 922(g)(3) and (d)(3) unconstitutional for the reasons discussed below.
• Part III Analysis B. The impact of Bruen and Rahimi on May and Patterson
• In its previous Order, the Court held that United States v. Patterson, 431 F.3d 832 (5th Cir. 2005), and United States v. May, 538 F. App’x 465 (5th Cir. 2013), foreclosed Connelly’s Motion to Dismiss her indictment on Second Amendment grounds.
• Now, Connelly argues that Rahimi has rendered these precedents obsolete, enabling this Court to evaluate her Second Amendment argument under the standard set forth by New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).
• Even though Bruen did not directly address § 922(g)(8), the Rahimi court [Fifth Circuit] held that “Bruen clearly ‘fundamentally change[d]’ our analysis of laws that implicate the Second Amendment ... rendering our prior precedent obsolete.”
• Though it did not mention May or Patterson specifically, the Court finds that Rahimi recognized the abrogation of those precedents as well.
• And because it nullified the basis for the Court’s prior Order, Rahimi constitutes an intervening change in the law warranting reconsideration.
• Part III Analysis C. Bruen’s two-step framework
• First, the Court must “determine whether ‘the Second Amendment’s plain text covers an individual’s conduct.’” If so, then [secondly,] the ‘Constitution presumptively protects that conduct,’ and the Government ‘must justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.’” To carry its burden, the Government must point to ‘historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.’”
• Part III Analysis D. Scope of “the people” covered by the Second Amendment
• Before analyzing whether Connelly’s conduct falls within the scope of the Second Amendment at step one of the Bruen framework, the Court must consider whether Connelly as an individual can claim protection under the Second Amendment.
• Rahimi observed that “the words ‘the people’ in the Second Amendment have been interpreted throughout the Constitution to ‘unambiguously refer[] to all members of the political community, not an unspecified subset.’” Id. at 451 (quoting District of Columbia v. Heller, 554 U.S. 570, 580 (2008)).
• The [Rahimi] opinion explains that the Supreme Court’s references to “law-abiding,” “responsible,” or “ordinary” citizens were only meant “to exclude from the Court’s discussion groups that have historically been stripped of their Second Amendment rights, i.e., groups whose disarmament the Founders ‘presumptively’ tolerated or would have tolerated.”
• Even if the Second Amendment may categorically exclude some individuals, it does not exclude Connelly.
• If Rahimi can claim the Second Amendment’s protection, then Connelly can as well.
• Part III Analysis E. Constitutionality of § 922(g)(3) 1. Conduct
• Under Bruen and Rahimi, the Court must first decide whether § 922(g)(3) burdens conduct protected by the Second Amendment.
• Accordingly, § 922(g)(3) burdens conduct protected by the Second Amendment.
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification
• Turning to Bruen’s second step, the Court must consider whether the Government has demonstrated that § 922(g)(3) “is consistent with this Nation’s historical tradition of firearm regulation.”
• At bottom, “[t]he core question is whether the challenged law and proffered analogue are ‘relevantly similar,’” especially regarding “how the challenged law burdens the right to armed self-defense, and why the law burdens that right.” Id. (quoting Bruen, 142 S. Ct. at 2132–33 (emphasis in Bruen)).
• The Government advances two arguments on this point. First, it argues that § 922(g)(3) falls within a longstanding tradition of “restricting the firearms rights of those who become intoxicated.” Resp. 15–16. Second, the Government argues that § 922(g)(3) falls within the broader tradition of disarming categories of individuals deemed dangerous, irresponsible, or unvirtuous.
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification a. Laws on intoxication i. Colonial Virginia law
• The Virginia law is not relevantly similar to § 922(g)(3) because it regulates firearms differently and for different reasons. The Virginia law focused on protecting the colony from potential attacks by Native Americans, noting that “the only means for the discovery of their plotts is by allarms, of which no certainty can be had in respect of the frequent shooting of gunns in drinking [sic].” 1655 Va. Laws at 401. Relatedly, the Virginia law also aimed at conserving military resources, ....
• Far from seeking to protect citizens from outside threats, the Gun Control Act [of 1968] sought to preserve domestic order by preventing violent crime. Such concerns doubtless existed in the Virginia colony in 1655, but the Government has not cited any law that addressed those problems with restrictions on gun use.
• But even if the laws’ underlying purposes were deemed relevantly similar, they differ in how they regulate firearm use in two critical respects: the Virginia law prevented individuals from using firearms while actively intoxicated, while § 922(g)(3) prevents users of intoxicants from possessing firearms altogether. [emphasis in original] [driving while drunk vs owning a car while drunk]
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification a. Laws on intoxication ii. Colonial New York law
• To some degree, this law focuses on maintaining public order and preventing firearm-related injuries, much like the Gun Control Act did. But the New York law addressed the specific dangers posed by New Year’s Eve partygoers in certain parts of the New York colony, rather than the general dangers posed by armed criminals across the country. [emphasis in original]
• And much like the Virginia law, the New York law limited the regulated activity to gun use, rather than gun possession. Id. at 245. Unlike § 922(g)(3), the New York law thus left ample room for individuals to keep guns in their homes for self-defense, even during the holiday period. [between December 31 and January 2]
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification a. Laws on intoxication iii. Reconstruction-era laws
• Here, the Court has even less reason to consider Reconstruction-era evidence than the Bruen Court did.
• But § 922(g)(3) is a federal law, and the Second Amendment has applied against the federal government since the ratification of the Bill of Rights in 1791.
• Accordingly, the Government’s “appeals to Reconstruction-era history [may] fail for the independent reason that this evidence is simply too late.” Bruen. at 2163 (Barrett, J., concurring) (citing Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2258–59 (2020)).
• Even assuming that these Reconstruction-era laws can inform the original public understanding of the Second Amendment, they do not suffice to establish the constitutionality of § 922(g)(3). These laws suffer from much the same problems as the colonial laws discussed above: they prevented individuals from using or carrying firearms while intoxicated, rather than preventing users of intoxicants from possessing firearms at all.
• To summarize, the historical intoxication laws cited by the Government generally addressed specific societal problems with narrow restrictions on gun use, while § 922(g)(3) addresses widespread criminal issues with a broad restriction on gun possession. The laws, therefore, are not relevantly similar in how and why they regulate firearms, and do not suffice to establish the constitutionality of § 922(g)(3). [emphasis in original]
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification b. Broader categorical restrictions i. “Unvirtuous” individuals
• First, it is unclear whether legal authorities at the founding era would consider Connelly’s homebound drug use “unvirtuous.” [Blackstone: “public and private vices,”]
• And more generally, nothing in § 922(g)(3) limits its applicability to public dangers or active intoxication, putting it out of step with colonial-era attitudes.
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification b. Broader categorical restrictions ii. Individuals who are “not law-abiding”
• But “no one even today reads [Second Amendment history] to support the disarmament of literally all criminals, even nonviolent misdemeanants.” Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J., dissenting)
• The longstanding prohibition on possession of firearms by felons requires the Government to charge and convict an individual before disarming her.
• But § 922(g)(3) does not provide for any pre-deprivation process, criminal or otherwise. This lack of process makes § 922(g)(3) an “outlier in our legal tradition.” Harrison, 2023 WL 1771138, at *9.
• The law thus deviates from our Nation’s history of firearm regulation.
• Part III Analysis E. Constitutionality of § 922(g)(3) 2. Historical justification b. Broader categorical restrictions iii. “Dangerous” individuals
• As Rahimi acknowledged, many of the colonial and early American laws that disarmed individuals targeted those who refused to take an oath of allegiance, or “breakers of the peace” that “go armed offensively.”
• Moreover, historical firearm laws differed from § 922(g)(3) in how they disarmed dangerous individuals. The colonial and early American “going armed” laws discussed in Rahimi, for example, only “disarmed an offender after criminal proceedings and conviction.”
• Finally, even if history broadly supports disarming dangerous individuals, there is little evidence that Connelly herself is dangerous. The Government has not alleged that she committed any violent or threatening acts.
• Thus, the Government has failed to carry its burden to demonstrate that § 922(g)(3) is “consistent with the Nation’s historical tradition of firearm regulation.”
• Part III Analysis F. Constitutionality of § 922(d)(3)
• Connelly also argues that § 922(d)(3)—the law giving rise to Count Two of her indictment—is unconstitutional under Bruen.
• Part III Analysis F. Constitutionality of § 922(d)(3) 1. Conduct
• Most notably, three [W.D. Tex.] district courts have concluded that the Second Amendment creates an implied right to “receive” firearms when analyzing Second Amendment challenges under Bruen.
• These courts reasoned that “[r]eceipt is the condition precedent to possession—the latter is impossible without the former.”
• There is no Fifth Circuit authority on whether § 922(d)(3) falls within the scope of the Second Amendment, and pre-Bruen authority from other circuits is split. However, another Ninth Circuit decision, Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017) (en banc), provides a compelling framework for analyzing this split in authority.
• Teixeira thus indicates that restrictions on the sale of firearms can burden conduct protected under the Second Amendment, but only if they significantly burden the ability of individuals to acquire firearms.
• Applying this principle to the case at hand, the Court finds that § 922(d)(3) burdens conduct protected by the Second Amendment.
• Part III Analysis F. Constitutionality of § 922(d)(3) 2. Historical justification
• But Connelly also raises a facial challenge to § 922(d)(3).
• Here, Connelly’s husband may pose a danger to the public similar to the one posed by Rahimi. But § 922(d)(3), as written, also effectively disarms individuals who do not pose the same kind of threat. Moreover, § 922(d)(3) does not tie its restrictions on gun use to intoxication or public safety in the way that historical gun regulations did. Nor does it provide the predeprivation process that laws disarming dangerous individuals historically required.
• In sum, § 922(d)(3) does not withstand Second Amendment scrutiny for much the same reasons that § 922(g)(3) does not.
• Part IV Conclusion
• For the foregoing reasons, Connelly’s Motion to Reconsider, ECF No. 86, is GRANTED. The Court ORDERS that the offenses charged in Counts One and Two of the Superseding Indictment, ECF No. 44, are DISMISSED.
• The core of the rationale is available above