On July 14, a federal appeals court upheld the federal ban on marijuana for gun owners, but acknowledged that the debate is far from over, with room needed for “individualized judgments.”
In a case known as United States v. Harris, before the United States Court of Appeals for the Third Circuit, Judges Krause, Bibas, and Ambro delivered a 48-page decision, with Judge Ambro dissenting. The court affirmed in part, vacated in part, and remanded back to the District Court, “…to find facts needed…”
While the case addresses defendant Erik Harris’s use of marijuana, it begs much larger questions. Marijuana is still a federally controlled substance, and while nearly 40 states have legalized its usage, there remains a prohibition on its use for gun owners.
The Second Amendment Foundation challenged this prohibition in January of 2024, as we reported. In August of 2024, the Second Circuit dismissed firearms charges for non-violent marijuana users, as we also reported. (In December of 2024, Hunter Biden was pardoned for numerous crimes, including possessing a gun while using illegal drugs.) Today’s decision from the Third Circuit creates a further split on the issue that puts it on a trajectory towards the Supreme Court.
The Appeals Court’s opinion begins, “Today, we hold that history and tradition justify §922(g)(3)’s restrictions on those who pose a special danger of misusing firearms because they frequently use drugs. But we lack enough facts to tell whether the law’s restrictions are Constitutional as applied to Harris.”
Since marijuana is becoming increasingly legal at the state and local levels, it sets up a conundrum for courts, which have acknowledged that both frequency and recency are legitimate thresholds for consideration.
Future cases will require closer calls about how often and how recently one must use a drug to count as an “unlawful user.” For instance, does a person who smokes marijuana sporadically before bed for chronic back pain do it regularly enough to count? These cases will present close issues not only of statutory construction, but also of Second Amendment rights.
Judge Ambro, who dissented in part, noted, “Erik Harris has no history of violence or threatening behavior. The Government wants to disarm him anyway… But they also obscure this conclusion with language that sets the threshold for potential dangerousness too low.”
