“The Framers Weren’t Perfect, but They Weren’t Fools”: Biden Administration Loses Another Gun Rights Case

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

51 thoughts on ““The Framers Weren’t Perfect, but They Weren’t Fools”: Biden Administration Loses Another Gun Rights Case”

  1. How would it be possible for a free American to join an agreeable militia and engage in the fight, if he has had no arms to keep and bear?

    Did he just say, “First draft?”

    Did he just say, “Recycle this literal rubbish and accept and adhere to it is as God’s law?”

    For most capable readers, a first draft is clearly not the final version of anything and, actually, has absolutely no bearing on anything.

    So, the author expects us to illicitly and arbitrarily rewrite the Constitution with discarded ideas?

    Since it is the fundamental law of the United States, I’m gonna go with the 2nd Amendment, the whole 2nd Amendment, and nothing but the 2nd Amendment, so help me God.

    The author alludes awkwardly to his Svelaz butt I wouldn’t recommend his pseudolaw to my worst, most capable enemy.

    2nd Amendment

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

  2. Turley: you make me tired. He knows that the DOJ is charged with enforcing federal law: “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.” So, the one to blame here would be “Congress”. Yet, Turley, in his usual slanted and unfair attacks on Joe Biden and hs administration claims that somehow Joe Biden keeps “losing” in court because he’s trying to deny Americans some Second Amendment “right”: “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.”

    Congres passes laws that are codified in the U.S. Code. The DOJ enforces such laws. Joe Biden isn’t involved in either passing or enforcing laws, and Turley’s pathetic attempts to blame Biden as pushing some sort of anti-gun agenda and repeatedly losing in court is as disingenuous as it is politically-motivated. It’s all political theater, and Turley plays a role, which is why he has no credibility.

    1. The DOJ is part of the Biden administration. It has no power of its own; it exercises Biden’s power. The constitution specifically says that the executive power is vested in the president alone. Nobody else can exercise executive authority, except in his name. Thus this is on the Biden administration.

      Congress passed an unconstitutional clause in a longer statute; previous administrations rarely enforced it, but even when they did they had the excuse that they didn’t know it was unconstitutional, because everyone was pretending the 2A didn’t exist, and the supreme court was doing a three monkeys impression and letting them get away with it. But that era is over, and this administration took no heed, and tried to enforce this clause, and rightly got slapped down. An administration that took the 2A seriously would have instructed those few US Attorneys who had been enforcing the clause to stop.



        Let’s address the beginning, the catalyst for America’s turn away from the Constitution and toward communism. “Crazy Abe” Lincoln denied the absolute constitutional right of States to secession, that which the very Founders availed themselves of. “Crazy Abe” employed the phantom excuse of abolition of heinous slavery when abolition of slavery must and should have been accomplished employing advocacy and constitutional economic tools, such as boycotts, divestiture et al. And, of course, the dysfunction, strife and enmity of the past 159 years would have been avoided had extant immigration law been enforced on January 1, 1863.

        When we’re done with “Crazy Abe,” we need to move on to the wholly unconstitutional, communist, American, welfare state – Congress has the power to tax for ONLY debt, defense and general Welfare, aka infrastructure, and Congress has the power to regulate ONLY money, commerce and land and naval Forces.

        1. You may want to check out Texas v White (1869) — no constitutional right to secede, 13th amendment — outlawed slavery, and Helvering v Davis (1937) — Social Security Act is constitutional.

        2. ” denied the absolute constitutional right of States to secession, that which the very Founders availed themselves of.”

          The founders didn’t secede. They revolted.

    2. NUTCHACHACHA, that you cannot read with sustaining comprehension does not bear on American fundamental law.

      Your slavering, rabid hysteria and incoherence in combination with your intense and explosive fantasies do not constitute law on any level.

      Congress has no power to deny manifest natural and God-given rights per the 9th Amendment.

      9th Amendment

      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      Substance ingestion is a natural and God-given right and freedom.

      Bodily injury and property damage constitute statutory crimes.

      An American has the right and freedom to ingest substances.

      No American citizen or level of government may deny constitutional rights.

      No person may commit violations of licit and legitimate laws against bodily injury and property damage.

    3. NUTCHACHACHA, do you still need that affirmative action and welfare thingy or can we get rid of it now?

  3. So, is it illegal for Hunter Biden to possess his weapons? Like the gun some homeless guy fished out of the trash after Hallie ditched it behind the grocery store?

    Or is there a double-secret exemption for the crack-addled children of Democratic politicians?

  4. Most recently a case came out of Pennsylvania, a person who had been convicted of a felony financial crime, where the person had committed welfare fraud some 20 years earlier queried the court asking whether his non-violent felony could constitutionally prohibit him from possessing a firearm.
    The 3rd Cir. federal court ruled that he should still be banned from having a gun.
    The court, now knowing that under the new standards it now had to show some analogue of the ban in 1792, emphasized and formalized the concept of the “virtuous citizen”. Essentially, that anyone who broke a felonious law, even non-violent or not gun related, was legally definable as socially “unvirtuous”, and alluding to laws as such in 1792.
    Not only was it reaching, it was questionable from a discriminatory point of view.
    Some of the dicta/commentary in that decision is very disturbing, surely elitist and alarming from an American civil rights POV, some of the court’s statement there:

    “Our assessment confirms that individuals like Range, who commit felonies and felony-equivalent offenses, are not part of “The People” whom the Second Amendment protects. ”
    “the right to keep and bear arms was historically ‘limited to those members of the polity who were deemed capable of exercising it in a virtuous manner'”
    “our holdings in Binderup and subsequent cases [hold] that the Second Amendment extends only to people considered “virtuous citizens,” and therefore hold that there is a longstanding tradition of disarming citizens who are not law-abiding”
    “In examining this subject, we observed that “the right to bear arms was tied to the concept of a virtuous citizenry and that accordingly, the government could disarm ‘unvirtuous citizens[,]”
    “These appeals require us to decide who count among ‘The People’ entitled to keep and bear arms. “this Nation does have a historical tradition of excluding specific groups from the rights and powers reserved to ‘The People”

    The 3rd Cir. court makes an oblique reference to historical discrimination against certain groups/class of The People, and justifying felon-in-possession laws based upon that historical racism.
    Despite the obfuscation, they rule that only a newly created class of “virtuous” citizens can claim 2nd Amendment rights.
    By this judicial edict, presuming to limit the Constitution, it is not enough that people be nonviolent and not dangerous, but they must be Virtuous as well, in order to be entitled to 2nd Amendment rights.
    My fuller review on this: https://qr.ae/pr7oMf

  5. “’The Framers Weren’t Perfect, but They Weren’t Fools’….”

    – Professor Turley

    So true.

    “Crazy Abe” Lincoln demonstrated that Karl Marx was “perfecter” and he shredded the Constitution, arbitrarily replacing much of it while high-criminally opting for the Communist Manifesto with a gun to America’s head and failing to enforce extant law.

  6. The framers didn’t support the idea of individual gun rights. In fact the first draft fo the 2nd amendment did not even imply it.

    “Here is Madison’s first draft of the Second Amendment:

    “The right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.””

    Scalia completely abandoned his cherished originalist philosophy for an arbitrary interpretation.

    1. “The framers didn’t support the idea of individual gun rights. In fact the first draft fo the 2nd amendment did not even imply it.”
      Just flat wrong based on Constitutional placement, historical context and just about everything else. If you want the historical evolution in England, our cultural precursor, read my article here:

      1. No, the first draft sets the mindset that Madison believed. The 2nd amendment was decided by committee not Madison. Futhermore all state constitutions except Pennsylvania’s were clearly talking about state militias. Scalia abandoned his originalism philosophy when it contradicted his own personal belief. He chose to ignore it and apply his own arbitrary interpretation.

    2. “The framers didn’t support the idea of individual gun rights. ”

      That is just not true. Every single one of the framers, as well as all the ratifying conventions, made it clear that they thought there was a natural right of each individual to be armed, equal to each individual’s freedom of speech. Not granted by government but by their Creator, and protected from the federal government by the Bill of Rights.

      The “well-armed militia” clause, whether in the draft or the final version, was offered not to justify the right, but to explain why this right, out of all rights, had to be specifically protected from the new federal government. It explains both why the RKBA is so important, and why there’s a risk that the USA might seek to infringe it.

      1. Not granted by government but by their Creator, and protected from the federal government by the Bill of Rights.
        This is the KEY. The right is not granted by the government. It is a natural right, protected by the constitution.

        It is impossible for the right be dependent on the act of the government. It is impossible for the right to be a “collective” right.

    3. Svelaz, you probably also pretend to believe Michael Bellesisles’s fraudulent claim that arms ownership was rare at the time of the US revolution.

      1. If an individual right was what the framers intended as many of you claim, then to avoid confusion, the framers with the benefit of hindsight should have removed the purpose clause or added at the end something like “and for other purposes”. Nevertheless, the Supreme Court in Heller was clear that this was an individual right and that was followed in the McDonald and Bruen decisions so the debate seems moot at this point..

        1. Again, that clause was never intended as the purpose of the right. It was only ever intended as the purpose for singling out this particular right and protecting it by its own amendment. The clause explains both why this right is so important, and also why it’s particularly likely that the federal government will try to infringe it, and thus an amendment is needed to prevent that. The right itself was not understood as depending on any of that; it was understood to exist for its own sake, just like the freedom of speech, or the right to due process.

    4. The draft hardly supports your conclusion. You assume that Yankee Doodle confiscating your weapons bears no resemblance to King George’s confiscations.

    5. @Svelaz,
      Did you read what you wrote?

      The version you wrote… even accepted at face value does in fact support the rights to bear arms.
      What was in your version but not in the final draft is the right to compel military service if you were a conscientious objector based on religious beliefs.


    6. “The framers didn’t support the idea of individual gun rights.”

      That is either historical revisionism or gross ignorance of the Founders’ political philosophy. They were individualists, not collectivists. They sought to codify *individual* rights (not collective “rights”).

      They included the Bill of Rights (which obviously includes 2A) to make it clear that they were serious about protecting *individual* rights from government interference.

  7. “[A]ll a legislature must do to prohibit a group of persons from possessing arms is to declare that group “untrustworthy’, . . .”

    Seriously?! To usurp an individual’s rights, the government must merely deem a person “untrustworthy?!”

    Such nonobjective “law” kicks the door wide open for totalitarianism.

  8. It appears that disarming citizens who presumptively pose a threat to the community may violate the presumption of innocence until proven guilty.

  9. They keep losing and setting further precedence for future cases.
    Between the Biden admin, and other Democrat governors, they are strengthening the 2ndA for lawful citizens and gun ownership.

  10. Interesting result to this trial. I think it also is basically about being accused of being a violent felon is not the same as being proved a violent felon. If they want these guns out of the hands of violent felons then give them speedier trials and prove your case. I think that the DOJ and others drag out these cases, impoverish the defendant and then hope for a confession and no trial. Tax fraud is not violence, and possessing marijuana is not violence, and speech is not violence. Seems the court is following the constitution and reasonableness also. How gratifying. These decisions were bound to come up with states making marijuana legal and the Feds lagged behind.
    Nice to see the government limited, especially this one.

    1. . . . . and the shift of the majority of the Supreme Court to a more reality/originalist based legal philosophy.
      Prior panels simply didn’t have the balls to make these overdue, sweeping decisions.

    2. Give them speedier trials… or at least actually charge them. As I understand it, in the domestic violence case the guy was not prosecuted, let alone convicted, but the court thought it could deprive him of his fundamental rights on a mere suspicion that he would never be able to clear.

  11. BIDEN and his social justice gun grabbing warriors LOSE AGAIN in the courts, as they due they strengthen court opinions for the next gun grabbing case. Biden Admin is a SHIP OF FOOLS and ACTIVISTS.

  12. You know, there was this other guy, using much harder drugs than marijuana, I believe you could say he was an addict, lied on the ATF 4473 and bought a gun.
    Might there be a two tiered justice system we are seeing?

  13. They weren’t fools but the Biden DOJ apparently are fools. Or maybe just insane – doing the same thing over and over again yet expecting a different result. Naw just fools.

  14. It is interesting that the US brought this case, given the clear violation of US Statute in the Hunter Biden firearm possession case. Maybe they were looking for this ruling to shield them from prosecuting Hunter??

  15. Does. the DOJ, which includes lots of people who carry guns and who own guns for personal use, apply the same Rule to their own….now that the American People and an increasing number of Legislatures and members of Congress considers the entire DOJ to be untrustworthy?

    1. Does. the DOJ, which includes lots of people who carry guns and who own guns for personal use, apply the same Rule to their own…

      Interesting thought experiment.
      How did law enforcement become armed?

      I’ll skip the whole Socratic discusion and get to the point.

      There is no Constitutional enumerated power for armed law enforcement.
      Law enforcement has guns, because the People arm them. The PEOPLE delegated their enumerated power to law enforcement.You can’t delegate a power you don’t have.

  16. Seriously, does the DOJ have a lot of credibility left these days? I hate saying that, but it looks like they are pushing bad claims. Sometimes it’s just best to cut bait

  17. Hey Mr Turley. Did we work together in 78? I was a Congressional Floor page. Attended Jimmy Carter Salt 2 Treaty Speech on the floor.Tip Oneal days

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