On February 3, a federal judge in the Western District of Oklahoma struck down 18 U.S.C. § 922(g)(3)—the federal provision banning possession of a firearm by “any person . . . who is an unlawful user of or addicted to any controlled substance”—in United States v. Harrison. The defendant in Harrison was apprehended while out on bond pending trial for allegedly “sho[oting] into a crowd at a college party, seriously wounding at least one partygoer.” The police found a loaded revolver, as well as a variety of marijuana products and paraphernalia, in Harrison’s car, and subsequently charged him with possessing a firearm as an unlawful user of a controlled substance in violation of 922(g)(3).
District Judge Patrick Wyrick first rejected the government’s argument that the defendant was not law-abiding and thus outside the scope of Second Amendment protection. The judge wrote that “this is precisely the sort of carving out of a subset from ‘all Americans’ that the Heller Court rejected,” and observed that—in his view—the argument would mean that the government “can deprive practically anyone of their Second Amendment right.” Per the opinion, “because the Second Amendment’s plain text covers Harrison’s conduct—possessing a handgun for self-defense—‘the Constitution presumptively protects that conduct.’”
Turning to the historical-tradition step of Bruen, the judge found that “possession of firearms by users of substances with the potential for abuse is not new,” and that “the United States ha[d] not identified a single historical law that is ‘distinctly similar’ to § 922(g)(3).” The opinion evaluated several categories of possible analogues put forward by the government. First, historical laws restricting gun possession by the actively intoxicated were, according to Judge Wyrick, narrower than 922(g)(3) because they only disarmed those who were actively intoxicated, did not prohibit all possession, and applied only to carrying weapons in certain public places. The judge also found that some of these laws were justified on different grounds than 922(g)(3)—namely, that they were intended not to protect public safety, but rather to ensure that militia members were not inebriated when they might be called upon for duty. Next, Judge Wyrick rejected the argument that all felon disarmament is presumptively constitutional under Heller, asking rhetorically: “What would remain of the Second Amendment if the Court were to accept the United States’ view that a legislature could prohibit the exercise of the right it protects simply by declaring anything or everything a felony?” The opinion found no historical support for such a broad conception of felon disarmament, as opposed to one rooted in concerns about dangerousness. (This issue was also a major focus of the February 15 en banc Third Circuit oral argument in Range v. Attorney General; a recording of that argument is available here.)
Next, Judge Wyrick examined whether the tradition of disarming individuals based on past dangerous or threatening conduct (which he traced to the Founding Era) could support 922(g)(3). He found that it could not, because “[t]he use of marijuana . . . is not in and of itself a violent, forceful, or threatening act.” For that same reason, the opinion rejected comparisons to historical bans on firearm possession by the mentally ill. The judge also rejected a tradition of virtue-based exclusions from the Second Amendment and found that historical laws disarming Catholics and loyalists were entitled to less weight because the Founding Fathers recognized that pre-1789 colonial and state practice often abridged constitutional protections in effect at the time, and because these laws “were justified based on the fear that the covered groups were likely to wage active war against the colonies or interfere with the colonists’ war efforts[, . . .] a radically different justification than the justification for § 922(g)(3).” Finally, the judge held that the presence of similar restrictions to 922(g)(3) in shall-issue states was not relevant, both because Bruen did not closely evaluate these licensing rules or bless them wholesale, and because the relevant state examples were narrower than 922(g)(3). The opinion concluded by observing that the government “could have demonstrated to a Texas judge—in an individualized proceeding of which Harrison would have been given notice and the opportunity to be heard—that Harrison ought to be jailed while awaiting trial for th[e alleged] shooting.” However, the judge found 922(g)(3) an impermissible “means of disarming Harrison” and invalidated the provision as unconstitutional in violation of the Second Amendment.
Post-Bruen, district and appellate courts have now invalidated two of the nine prohibited-person restrictions within 18 U.S.C. § 922(g): the unlawful user of a controlled substance ban in (g)(3), and the domestic-violence restraining order ban in (g)(8)—for more coverage of the 922(g)(8)decisions, see our posts here, here, here, and here. (Courts have also invalidated a number of other restrictions in § 922, including the ban on receipt of a firearm while under felony indictment and the ban on possessing a firearm with a removed or obliterated serial number.) As to 922(g)(3) specifically, Harrison reaches a contrary result to three earlier district court decisions which all upheld the provision as consistent with historical laws that disarmed certain individuals based on assessments of dangerousness: United States v. Daniels, decided by the Southern District of Mississippi last July; Fried v. Garland, decided by the Northern District of Florida in November (for more detail on the issues in Fried, see our coverage here); and Gilpin v. United States, decided by the Western District of Missouri in early January.
A July 2022 report by the U.S. Sentencing Commission provides a rough approximation of Bruen’s ultimate potential impact on federal criminal law. That report evaluated a set of 6,549 firearms offenders who were classified as prohibited persons based on their statute of conviction and sentenced under § 2K2.1 of the Sentencing Guidelines. Per the report, 79% of these offenders were felons who were prohibited from possessing a gun under 922(g)(1). The next largest group (5.3%, or about 350 individuals) were subject to the unlawful-user prohibition in 922(g)(3). A much smaller number were under felony indictment or a domestic violence restraining order (1.7% combined, or about 111 individuals). This data suggests that Harrison may be a very consequential decision in terms of practical impact, if its reasoning is ultimately adopted by other courts.
As to the legal analysis, Harrison makes an interesting distinction in the context of “laws restricting the rights of Catholics, loyalists, and others deemed untrustworthy” passed by colonies and states before 1789. While states before 1789 “adopted constitutions containing provisions analogous to those found in the subsequent federal Constitution[, they] repeatedly violated the clear import of many of those provisions.” Therefore, Judge Wyrick says, “pre-1789 state practice” is likely of minimal relevance to determining the scope of the Second Amendment (and permissible regulatory interventions) as understood at the Founding.
As support for this proposition, Judge Wyrick quotes an 1800 opinion by Justice Samuel Chase in Cooper v. Telfair, where Chase referenced “a material difference between laws passed by the individual states during the Revolution and laws passed subsequent to the organization of the federal Constitution.” One might naturally expect that Cooper invalidated a pre-1789 state law under the federal Constitution. But Cooper in fact reached the opposite result: the decision held that Georgia’s “Confiscation Act”—under which a debt owed to an alleged British loyalist was forfeited to the state—was valid and declined to strike down that law. In fact, in the portion of Justice Chase’s opinion immediately following the section quoted in Harrison, the Justice speculated that the Court might not have the power to declare the law void even if it was found to be unconstitutional (the case was decided three years prior to Marbury v. Madison, which established the principle of judicial review). Justice William Cushing’s opinion, moreover, declared that “[t]he right to confiscate and banish in the case of an offending citizen must belong to every government.” If anything, then, Cooper stands for the proposition that even Revolutionary-era laws—many of which, to be sure, we now agree are objectionable and unconstitutional as written—were considered valid exercises of state power in 1800. And, as the Cushing opinion illustrates, it seems possible that a majority of the Court thought these laws consistent with the Constitution at that time.
The idea that laws enacted close in time to the Founding aren’t relevant because “[i]t would make little sense to understand [the Second Amendment] as incorporating—rather than repudiating—such pre-1789 state practice” is, to me at least, a difficult theory to square with Bruen. If courts are tasked with determining, in Bruen’s words, which “modern regulations . . . were unimaginable at the founding,” it would be odd to rely on a modern determination that certain regulations that existed at the Founding, or immediately before the Founding, were actually inconsistent with the Constitution and analogous state protections. That seems a much more probing and judge-empowering inquiry than Bruen contemplates, and it also appears to mix historical and present-day practice in odd ways. It’s certainly true, as Harrison observes, that “[t]oday we would not allow the government to shut down news outlets because the persons running the outlet could not be trusted, even though Revolutionary War-era Virginia did just that to Loyalists and Pennsylvania the same to Quakers.” But those historical laws exist, they weren’t repudiated or formally struck down (as Cooper illustrates), and they thus have something to tell us about how states in early America viewed their own police powers under the federal Constitution.