Does new Third Circuit opinion suggest regular drug users are more likely to have Second Amendment rights than ocassional drug users?

July 20, 2025

While I was on the road, a Third Circuit panel handed down a notable new Second Amendment opinion in US v Harris, No. 21-3031 (3d Cir. July 14, 2025) (available here). The Harris ruling concerns the (un)constitutionality of federal law’s criminal prohibition of gun possession by anyone “who is an unlawful user of or addicted to any controlled substance.” 18 U.S.C. § 922(g)(3). I believe that this Harris ruling is only the third major Second Amendment opinion on this matter from the circuit courts since the Supreme Court’s rewriting of constitutional doctrine in Bruen and Rahimi, and Harris highlights the persistent challenges that lower courts face when seeking to apply originalist Second Amendment jurisprudence to modern criminal gun prohibitions.

Harris partially upholds § 922(g)(3) while also throwing significant Second Amendment shade (it also has an opinion from each judge on the panel that has additional shade-throwing). As for the holding, the Harris opinion states: “Drug users can be disarmed based on the likelihood that they will physically harm others if armed … [meaning] § 922(g)(3) temporarily and constitutionally restricts the gun rights of drug users only as long as they present a special danger of misusing firearms.” Harris, slip op at 19-20 (cleaned up). Stated differently, the Third Circuit in Harris has ruled that unlawful drug users have Second Amendment rights unless and until it can be shown that they “present a special danger of misusing firearms.”

The panel then remands to give the parties a “chance to present their own evidence and arguments about how Harris’s drug use affected his mental state and riskiness.” The opinion sets out a “non-exhaustive list of factors to guide the District Court’s inquiry [to help with] determining whether someone’s drug use suggests that he likely poses an increased risk of physical danger to others if armed.” Id. slip op at 21-22 (cleaned up). The opinion stresses that courts “must make individualized judgments and conclude that disarming a drug user is needed to address a risk that he would pose a physical danger to others.”

The Harris court’s constitutional focus on an individualized inquiry into drug use and riskiness leads me to ponder the question in the title of this post. I would guess regular drug users who have never engaged in violence or other serious crimnal behavior might be better able to assert their drug use poses no “increased risk of physical danger to others” than might ocassional drug users. In turn, because a regular drug user can seemingly present a more robust “track record” of drug use without enhanced riskiness, will we see in the Third Circuit a series of Second Amendment hearings in which gun possessors puff their drug use history rather than seek to downplay it?

Some (of many) prior related posts: