We recently discussed the ruling of the United States Court of Appeals for the Fifth Circuit striking down a ban on gun ownership by individuals accused of domestic abuse. Now, U.S. District Judge Patrick Wyrick in Oklahoma City dismissed an indictment against Jared Michael Harrison for violating a federal law that makes it illegal for “unlawful users or addicts of controlled substances” to possess firearms. It is only the latest such loss for the Justice Department as the Biden Administration pushes sweeping rationales for limiting Second Amendment rights in the wake of last year’s ruling in New York State Rifle & Pistol Association v. Bruen.

Harrison was arrested by police in Lawton, Oklahoma, in May 2022 after a traffic stop where police found a loaded revolver as well as marijuana.

Under 18 U.S.C. § 922(g)(3), Congress prohibited the possession of firearms by users of substances made unlawful by the federal Controlled Substances Act. The court noted that this provision “is rarely used by prosecutors, as it accounts for only about 5% of prosecutions brought under § 922.”

The Justice Department argued that such a ban was “consistent with a longstanding historical tradition in America of disarming presumptively risky persons, namely, felons, the mentally ill, and the intoxicated.” It is similar to the broad rationale used unsuccessfully before the Fifth Circuit. Indeed, the Justice Department again tried to argue that such bans are allowed because Bruen’s described the plaintiffs in that case as “ordinary, law-abiding, and adult citizens.” It is clearly an argument that the Biden Administration wants to push in cases across the country despite the rather poor reception from the courts. I agree with these judges that the reference is being radically overblown by the Justice Department. Indeed, it cuts against the department’s credibility in arguing for Second Amendment limits.

This latest loss shows the Biden Administration pushing a post-Bruen claim that could find itself back before a skeptical Court majority. Notably, as discussed in the earlier post, a similar issue was addressed by Justice Amy Coney Barrett when she was sitting as an appellate judge. This court also relies on Barrett’s dissent in Kanter v. Barr, 919 F.3d 437, 451–53 (7th Cir. 2019) (Barrett, J., dissenting).

In September, U.S. District Judge David Counts in Midland, Texas also struck down a firearms law that banned individuals under felony indictment from buying guns.

The opinion by Judge Wyrick is very interesting in its comprehensive exploration of historical sources. It also dismantles the Justice Department’s suggestions that marijuana users are both law breakers and threats to society:

“under the United States’ own conception of the historical tradition, such restrictions would only apply to those who are both unvirtuous and dangerous. And as explained above, because the mere use of marijuana does not involve violent, forceful, or threatening conduct, a user of marijuana does not automatically fall within that group.”

I particularly liked this observation from the court about reading discretion into the amendment to bar those deemed untrustworthy by the government:

[I]t would be odd indeed for the Framers to have incorporated such a trojan horse into the Second Amendment. The purpose of enshrining a right into the Constitution is to limit the discretion of a legislature. But if the United States’ theory is correct and all a legislature must do to prohibit a group of persons from possessing arms is to declare that group “untrustworthy,” then the Second Amendment would provide virtually no limit on Congress’s discretion. The Framers weren’t perfect, but they also weren’t fools.

Here is the opinion: United States v. Harrison