10th Circuit Says 2nd Amendment Inquiry on § 922(g) Should Focus on Future Dangerousness – Update for September 8, 2025

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MINORITY REPORT

A divided 10^th Circuit panel last week added a disturbing gloss onto the issue of the constitutionality of 18 U.S.C. § 922(g) (which prohibits felons, drug users and others from possessing guns), suggesting that courts should consider a defendant’s future dangerousness in an “as applied” challenge to whether the 18 USC § 922(g)(3) prohibition on unlawful drug users possessing guns violates the 2^nd Amendment.

The Circuit’s approach is reminiscent of the Tom Cruise dystopian movie “Minority Report,” where the police arrested people for crimes they had yet to commit.

Jared Harrison, who worked at a marijuana dispensary and apparently liked to sample the product, was charged with violating § 922(g)(3), which prohibits firearm possession by “any person… who is an unlawful user of or addicted to any controlled substance.” The Western District of Oklahoma federal district court dismissed the indictment, holding that § 922(g)(3) – as applied to non-intoxicated weed users like Jared (who was not high when he was pulled over and arrested) – violated the 2^nd Amendment.

The 10th Circuit reversed.

In the wake of the Supreme Court’s decision in United States v. Rahimi, the 10^th noted, “the appropriate [2^ndAmendment] analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” The Circuit complained that the district court found that “our historical tradition of firearm regulation is limited to disarming those who have acted dangerously in the past.  But we conclude, contrary to the district court, disarming those believed to pose a risk of future danger is consistent with a “principle[] that underpin[s] our regulatory tradition.”

The government argued that “for those who unlawfully use marijuana, like Mr. Harrison, research ‘amply demonstrate[s] a connection between marijuana use specifically and violence.’” Jared, on the other hand,  contended “marijuana users are not in a class of dangerous people.” The 10th said that to determine whether § 922(g)(3) as applied to Jared was “consistent with” the government’s dubious claim, it “must show non-intoxicated marijuana users pose a risk of future danger,” and it remanded the case to the district court for additional fact-finding.

It’s tough to accurately predict future criminality. As the dissenting judge put it, “the district court was correct to reject the government’s invitation to strip away Mr. Harrison’s 2^nd Amendment rights based only on abstract statistics and “projected” dangerousness. Remanding for factfinding on these issues puts a tremendous burden on Mr. Harrison, one which is inappropriate given that it is the government’s burden to justify § 922(g)(3)’s application in response to his 2^ndAmendment challenge.”

United States v. Harrison, Case No. 23-6028, 2025 U.S.App. LEXIS 21978 (10^th Cir. Aug 26, 2025)

~ Thomas L. Root