The Fundamental Flaw With New Tenth Circuit Decision on Pot and Guns

The circuit court split on the issue of gun bans for drug users has deepened with a Tenth Circuit decision in a case out of Oklahoma involving a man busted for possessing a revolver and a small amount of marijuana. 

A U.S. District Court judge held that Jared Michael Harrison could not be prosecuted under Section 933(g)(3), which prohibits “unlawful” drug users from possessing firearms, ruling that the statute violates the Second Amendment, at least as applied to marijuana users who are not intoxicated at the time of their arrest.

On Tuesday, the Tenth Circuit reversed that decision and remanded the case back to district court, but the outcome isn’t a total loss for Harrison. The appellate court ruled that, in order to justify its prosecution, the Department of Justice “must show non-intoxicated marijuana users pose a risk of future danger.” 

The panel squarely rejected the government’s contention that only “law-abiding citizens” possess their Second Amendment rights, arguing that “nobody contends only ‘law-abiding citizens enjoy the rights protected” by the First and Fourth Amendments (among others). 

… restricting the Second Amendment to “law-abiding” citizens— as the government urges us to do—would make it harder to administer and would risk turning it into “a second-class right.” We do not even know precisely what “law-abiding” means. How many laws must someone break to fall outside the Second Amendment’s ambit? And how severe must those violations be? The government provides no answers. 

The DOJ also argued that the “problem addressed by§ 922(g)(3) could not have existed in the 18th century because there were no drug laws,” so the statute in question is a response to an unprecedented societal concern, and therefore there’s no need to find historical analogues. Once again, the Tenth Ciircuit disagreed.

Having determined § 922(g)(3) generally addresses the dangers of mixing guns and intoxicants, we ask whether the Founders were concerned with a similar “general” problem. They undisputedly were. The district court aptly observed, “[H]istorical prohibitions on the carrying of firearms by intoxicated persons . . . proves” this concern is longstanding. 

There were several laws in place at the Founding that prohibited possessing guns while intoxicated, but are none that are “distinctly similar” to  922(g)(3) as applied to users of intoxicating substances while they’re not actually intoxicated. The Tenth Circuit found that suggestive of a lack of a historical tradition that fits with the modern statute in question, but only to  a point. 

The one area where the appellate court disagreed with the district court was the issue of whether or not individuals can be prohibited from possessing a firearm because of the potential for dangerousness in the future. Citing 18th century laws disarming (among others, Catholics and loyalists), which they deemed relevant, the panel stated:

History shows legislatures can disarm those believed to pose a risk of future danger. We respectfully part ways with the district court’s contrary view. That said, we still cannot answer the ultimate constitutional question before us. Rather, with the history correctly understood, the district court must inquire into whether non-intoxicated marijuana users pose a risk of future danger.

I think the Tenth Circuit gives far too much authority to the legislature by taking this position. If Congress decides tomorrow that registered Democrats pose a risk of future danger, could they legally disarm them? If a Democrat-controlled Congress decided the same is true for registered Republicans (or NRA members, or evangelical Christians) could they do the same? 

The panel recognized the problem with an open-ended interpretation of who is “law-abiding”, but allowed for an equally open-ended view of what class of citizens can be deemed “dangerous” in the future. That itself is dangerous, and doesn’t just place the Second Amendment in the position of a second-class right. It risks negating the right altogether. 

With almost a half-dozen challenges to 922(g)(3) awaiting the Supreme Court’s review this fall, the issue may be decided long before Harrison’s case reaches SCOTUS. If the Court does grant cert to one or more of these cases, let’s hope a majority of the justices don’t adopt the Tenth Circuit’s deferential stance on deciding “dangerousness”, because if they do they’ll be giving anti-gunners a green light to disarming broad swathes of the people going forward. 

Editor’s Note: Radical judges are doing everything they can to hamstring our Second Amendment rights.

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