Tenth Circuit panel devises yet another approach to divining Second Amendment rights for marijuana users

Last week, a divided Tenth Circuit panel handed down yet another a notable new Second Amendment opinion regarding 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).  The ruling in US v Harrison, No. 23-6028 (10th Cir. Aug. 26, 2025) (available here), is at least the third notable Second Amendment opinion on this matter in just the last few months.  Harrison highlights the persisting challenges lower courts face when seeking to apply originalist Second Amendment jurisprudence to modern criminal gun prohibitions, and the majority opinion starts this way:

Jared Michael Harrison was charged with violating 18 U.S.C. § 922(g)(3), which prohibits firearm possession by “any person . . . who is an unlawful user of or addicted to any controlled substance.” He moved to dismiss the indictment under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 37 (2022), contending the charging statute violates the Second Amendment as applied to non-intoxicated marijuana users.

The district court granted the motion. The government now appeals. The district court comprehensively analyzed the constitutional question. But the district court ruled before the Supreme Court decided United States v. Rahimi, 602 U.S. 680 (2024), which issued while this appeal was pending and clarified our constitutional inquiry.  Rahimi instructs “the appropriate analysis [in Second Amendment cases] involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Id. at 692. With the benefit of Rahimi, we cannot fully endorse the district court’s understanding of the historical record.

According to the district court, our historical tradition of firearm regulation is limited to disarming those who have acted dangerously in the past.  But we conclude, contrary to the district court, disarming those believed to pose a risk of future danger is consistent with a “principle[] that underpin[s] our regulatory tradition.” Id. at 692.  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. Exercising jurisdiction under 18 U.S.C. § 3731, we therefore reverse and remand for further proceedings consistent with this opinion.

Some (of many) prior related posts:

• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
• Fifth Circuit panel declares unconstitutional application of federal prohibition on gun possession by “unlawful user” of controlled substances
• Eighth Circuit indicates Second Amendment limits federal gun possession crimes for drug users under § 922(g)(3)
• Will federal prohibition on gun possession by unlawful drug users be the next Second Amendment issue taken up by SCOTUS?
• Does new Third Circuit opinion suggest regular drug users are more likely to have Second Amendment rights than ocassional drug users?  
• Eleventh Circuit rules federal prohibition of gun possesion by medical marijuana users problematic under Second Amendment