The Tenth Circuit reversed the district court’s dismissal of a § 922(g)(3) indictment and remanded in light of the Supreme Court’s intervening decision in Rahimi. Applying the since-updated standard for reviewing Second Amendment challenges to a defendant’s charges for possession of a firearm while being an unlawful user of marijuana, the court held that the Second Amendment inquiry must ask whether disarming a group is consistent with principles that underpin the nation’s regulatory tradition—framing that here as a tradition permitting disarmament of those believed to pose a risk of future danger. The panel rejected the government’s “mentally ill” analogy to marijuana users and said the record must show that non-intoxicated marijuana users, as a class, pose a future-danger risk sufficient to justify § 922(g)(3) as applied.
Turning to the specific facts of the case, Harrison was stopped for a traffic violation; officers smelled marijuana, searched his car, and found a loaded revolver along with marijuana products. He was indicted under § 922(g)(3) as an unlawful user of a controlled substance. The district court dismissed the indictment under Bruen, concluding the statute was unconstitutional as applied to non-intoxicated marijuana users.
On appeal, the Tenth Circuit emphasized Rahimi’s directive to assess consistency with the “principles” behind historical regulations. The court agreed there is no distinctly similar founding-era analogue to § 922(g)(3) and rejected the Government’s “mentally ill” analogy, but it held there is a historical principle allowing legislatures to disarm persons believed to present a risk of future danger. Whether non-intoxicated marijuana users fit that principle is an evidentiary question for the district court on remand.
The panel also clarified that Harrison’s challenge is strictly as-applied to non-intoxicated marijuana users, and it declined to entertain the government’s new suggestion (raised late) that the record permitted an inference of intoxication. Judge Kelly concurred in part and dissented in part, arguing the historical tradition supports only disarming the actively intoxicated and criticizing the remand as giving the government a “fresh start.”
Until further guidance comes from the circuit courts, it now appears that § 922(g)(3) prosecutions, at least in the Tenth Circuit, will hinge on an evidentiary showing that non-intoxicated users of marijuana pose a future-danger risk consistent with historical principles. Prosecutors cannot rely on mental-illness analogies or generic intoxication laws alone; they’ll need evidence connecting the class to future danger.
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