The Guns of August Come Early – Update for July 21, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ONE TOKE OVER THE 2ND AMENDMENT LINE?

Remember how your mother scolded you to take good care of your stuff? The lesson didn’t stick with college student Erik Harris. A few days after he bought two handguns in close succession, Erik got “really drunk” and high at a party. One of his guns disappeared.

As soon as Erik sobered up, he reported the gun stolen and bought a replacement. Incidentally, on each purchase, Erik indicated on the ATF form that he was not an “unlawful user of or addicted to marijuana.”

When Erik’s missing gun turned up in a felon’s possession, police questioned Erik. Remember how your mother told you that the policeman is your friend? That lesson did stick with Erik… to his detriment.

Erik admitted to the cops that he smoked weed regularly, including earlier that same day. He acknowledged that he probably was an “unlawful user” of marijuana and that maybe he wasn’t completely “honest”  when he filled out the ATF form.

Remember that bit you’ve heard in the police shows on TV about “you have the right to remain silent?” That’s not just a right, it’s a pretty darn good idea. Honesty turned out not to be the best policy for Erik. The government charged him with three counts of possessing a gun as an “unlawful [drug] user” under 18 USC § 922(g)(3) and another three counts under § 922(a)(6) for lying to buy each one. Erik got convicted.

Last week, the 3^rd Circuit held that § 922(g)(3) didn’t violate the 2^nd Amendment on its face because it is completely constitutional to deny guns to unlawful drug users who could pose a risk to others if armed. The nation’s founding-era laws temporarily disarmed people who were dangerously drunk or mentally ill, because their impaired mental state posed a risk to others. Section 922(g)(3)’s temporary restriction on gun rights is analogous to these historical restrictions, the Circuit said, because it addresses a similar problem, the risk of danger due to an altered mental state and imposes a similar burden of temporary disarmament.

But § 922(g)(3) might not apply to Erik, the 3^rd conceded, because the District Court did not find that his frequent marijuana use increased the risk that he could not handle guns safely. “Whether Harris’s § 922(g)(3) conviction is constitutional turns on many facts unanswered by the existing record,” so it remanded the case for fact-finding, including on how recently he had smoked prior to gun possession, whether the pot affected his judgment and impulse control, or caused psychosis, and marijuana’s long-term physical and mental effects.

The significance of the decision is the 3^rd Circuit’s use once again of an individual dangerousness analysis – like it did in Range – to decide whether § 922(g) was constitutional as applied in a particular situation.

United States v. Harris, Case No. 21-3031, 2025 U.S.App. LEXIS 17293 (3d Cir. July 14, 2025)

– Thomas L. Root