The 10th Circuit Agrees That Prosecuting Cannabis Consumers for Gun Possession May Be Unconstitutional
The appeals court rejected most of the arguments in favor of that policy, saying "the government must show non-intoxicated marijuana users pose a risk of future danger."
On a Friday in May 2022, Jared Harrison was on his way to work at an Oklahoma medical marijuana dispensary when a police officer stopped him for running a red light. When Harrison rolled down his window, the officer smelled marijuana. A search of the car discovered a loaded revolver, a pill bottle containing a few partially smoked joints, another joint in a console tray, and a backpack containing marijuana, THC gummies, and two THC vape cartridges.
Because Harrison did not have a state-issued medical marijuana card, he was charged with illegal possession of cannabis under state law, a misdemeanor. But he also faced a felony charge under 18 USC 922(g)(3), the federal law that bars illegal drug users from possessing firearms. That charge, he argued, violated the Second Amendment. A federal judge agreed, ruling in February 2023 that the government had failed to show Harrison's prosecution was "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test that the U.S. Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.
This week the U.S. Court of Appeals for the 10th Circuit reversed that ruling and remanded the case for further consideration. The 10th Circuit's decision in United States v. Harrison, because it endorsed U.S. District Judge Patrick Wyrick's reasoning in nearly all respects, nevertheless represents another in a series of blows to a policy that affects millions of peaceful Americans, depriving them of the constitutional right to armed self-defense for no good reason.
As it has in other Section 922(g)(3) cases, the government argued that cannabis consumers are not part of "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment because they are not "law-abiding." Wyrick made short work of that claim, noting that the Supreme Court has said "the people," as used in the Bill of Rights, "unambiguously refers to all members of the political community, not an unspecified subset."
The government's argument amounted to "an outright declaration of the federal government's belief that it can deprive practically anyone of their Second Amendment right," Wyrick added. "Who among us, after all, isn't a 'lawbreaker'? For sure, there
may well exist some adult[s] who [have] never exceeded the speed limit, changed lanes without signaling, or failed to come to a complete stop at a stop sign, but they are few and far between."
The three-judge 10th Circuit panel unanimously agreed with Wyrick on this point. "A contrary conclusion would defy law and logic," Judge Veronica Rossman, a Joe Biden appointee, writes in the majority opinion, which was joined in full by Judge Michael R. Murphy, who was nominated by Bill Clinton, and in part by Judge Paul J. Kelly Jr., who was appointed by George H.W. Bush. "The First and Fourth Amendments also refer to the 'people,' and nobody contends only 'law-abiding citizens' enjoy the rights protected by these constitutional guarantees….Restricting the Second Amendment to 'law-abiding' citizens—as the government urges us to do—would make it harder to administer and would risk turning it into 'a second-class right.'"
The government also argued that Section 922(g)(3), which Congress enacted in 1968, satisfies the Bruen test because it is analogous to early laws that prohibited people from publicly carrying or firing guns while intoxicated. "The seven laws the United States identifies imposed a far narrower burden and, as a result, left ample room for the exercise of the core right to armed self-defense," Wyrick noted. They applied only "while an individual was actively intoxicated" and only in "public places." They did not prohibit "mere possession of a firearm" and did not affect "the possession of a firearm in the home for purposes of self-defense." By contrast, Section 922(g)(3) is a blanket ban on gun possession that applies in all settings even when drug users are sober, which is akin to decreeing that anyone who drinks alcohol may not own firearms.
Wyrick also noted that the existence of these laws demonstrates that "the societal problem addressed by § 922(g)(3), possession of firearms by users of substances with the potential for abuse, is not new." It is therefore telling, he said, that the government has been unable to identify any historical analogs that are "distinctly similar" in scope to that provision.
Rossman agrees with Wyrick that "when the Founders addressed the dangerous mixture of firearms and intoxicants, they seemed to disarm only intoxicated people." The issue here, she says, is whether Section 922(g)(3) is constitutional "as applied to non-intoxicated marijuana users." That framing follows from the facts of the case, since the officer who pulled Harrison over did not conduct a field sobriety test, Harrison's blood was not drawn for drug testing, and the government presented no evidence that he was intoxicated at the time of the stop. Rossman also agrees that Section 922(g)(3) aims to address a longstanding "societal problem," which she says makes the absence of a "distinctly similar" analog relevant to the historical analysis required by Bruen but not necessarily dispositive.
Wyrick also rejected the government's argument that cannabis consumers are analogous to "the mentally ill," whose rights historically were sometimes restricted to protect public safety. "History and tradition would limit disarmament to dangerous lunatics," he wrote. "The mere use of marijuana does not indicate that someone is in fact dangerous, let alone analogous to a 'dangerous lunatic.'"
Rossman concurs that "the government has not shown laws disarming the mentally ill
are relevant historical analogues." While "the government suggests laws disarming
the mentally ill reveal a principle that legislatures may disarm those who are not 'responsible,' 'ordinary,' or able to exercise 'self-control,'" she says, that theory "relies on constructs the Supreme Court has explicitly refused to endorse." In the 2024 case United States v. Rahimi, for example, the Court rejected the proposition that someone "may be disarmed simply because he is not 'responsible,'" which it described as "a vague term" that does not "derive from our case law."
Rossman disagrees with Wyrick, however, on the relevance of English and colonial laws that disarmed Catholics and loyalists, which the government said showed legislators may forbid gun possession by classes of people "believed to be dangerous." Rossman likewise discerns a relevant principle here, and she thinks it extends further than Wyrick allowed.
"History and tradition support disarming persons who have demonstrated their dangerousness through past violent, forceful, or threatening conduct," Wyrick wrote, but cannabis consumers like Harrison do not fall into that category. Rossman says that formulation is too restrictive because it focuses exclusively on past conduct.
"We conclude, contrary to the district court, [that] disarming those believed to pose a risk of future danger is consistent with a 'principle[] that underpin[s] our regulatory tradition,'" Rossman writes. "Still, we cannot yet decide the ultimate constitutional question. To determine whether § 922(g)(3) as applied here is 'consistent with' the principle that the government has correctly identified, the government must show non-intoxicated marijuana users pose a risk of future danger. This inquiry, which may involve fact finding, is best suited for the district court….We therefore reverse and remand for further proceedings consistent with this opinion."
Judge Kelly, who thinks the appeals court should have affirmed Wyrick's dismissal of the indictment, objects to the remand in a partial dissent. "By disarming those who may use drugs from time to time regardless of their present intoxication, § 922(g)(3) 'goes much further' than the historical intoxication laws that existed at the Founding," he notes. He thinks that contrast, which shows the same problem historically was addressed in a much narrower way, should have carried more weight in the majority's analysis.
"The court extracts from historical laws disarming Catholics and loyalists in times of war the principle that Congress may disarm those it believes to pose a risk of future danger," Kelly writes. "But Catholics and loyalists were disarmed because they were 'seen as potential insurrectionists' in times of war—a classification which we cannot attribute to non-intoxicated marijuana users. Unlike the court, I am not 'comfortable' with this level of generality."
Kelly calls attention to "the elephant in the room": the fact that most states have legalized marijuana for medical or recreational use. In Oklahoma alone, Wyrick estimated, nearly 400,000 people "use marijuana under state-law authorization." Because marijuana is still banned at the federal level, those people, along with millions of other cannabis consumers who comply with state law, are still committing felonies if they dare to exercise their Second Amendment rights. "I do not read Bruen to endorse analogical reasoning which effectively writes Congress a 'blank check' to disarm so many Americans, many of whom may be under the assumption that marijuana laws have been reformed," Kelly writes.
Kelly also objects that remanding the case for consideration of "whether non-intoxicated marijuana users pose a risk of future danger" allows "fact finding on a forfeited issue" and imposes an unfair burden on Harrison to rebut new evidence. The government's case against Harrison previously was limited to showing that he was a marijuana user (which he admits) who owned a gun (ditto). It "never sought to introduce evidence that Mr. Harrison's marijuana use makes him a danger to others, it never argued that such evidence was necessary to obtain a conviction, and it never so much as requested an evidentiary hearing on the issue," Kelly notes. "Thus, any evidence about Mr. Harrison's actual marijuana use beyond the fact that he is a 'user' comes too late in this as-applied challenge. The government should be left with the record that it made (or rather neglected to make) and it should not be given a fresh start in its prosecution of Mr. Harrison."
The first time around, Wyrick was unimpressed by the government's argument that anyone who uses marijuana is ipso facto too dangerous to be trusted with firearms. It seems unlikely that he will reach a different conclusion on remand, although the government now may have a chance to argue that Harrison's specific pattern of use justifies disarming him.
In any case, all three members of the 10th Circuit panel agreed that dangerousness has to be proven, not simply assumed, and that Section 922(g)(3) prosecutions may be unconstitutional as applied to particular defendants—a proposition that also has been endorsed by the 5th Circuit, the 8th Circuit, the 3rd Circuit, and the 11th Circuit. It is striking that three 10th Circuit judges of different generations, appointed by presidents of both major parties, were appropriately skeptical of the government's arguments for prosecuting Harrison.
The most skeptical of the three, Kelly, is also the oldest (84) and the sole Republican appointee on the panel. Wyrick, whose decision Kelly would have upheld, is a 44-year-old judge who was appointed by Donald Trump. And the 5th Circuit, one of the country's most conservative federal appeals courts, was the first to overturn a marijuana user's Section 922(g)(3) conviction on Second Amendment grounds. That pattern suggests the Supreme Court, which is considering seven petitions involving this law, may be receptive to the argument that the use of politically disfavored intoxicants is not enough to transform a constitutional right into a felony.
