UNITED STATES OF AMERICA v. ERIK MATTHEW HARRIS, Appellant
No. 21-3031
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 14, 2025
PRECEDENTIAL
Argued: December 9, 2024
Before: KRAUSE, BIBAS, and AMBRO, Circuit Judges
Renee Pietropaolo [ARGUED]
FEDERAL PUBLIC DEFENDER‘S OFFICE
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Laura S. Irwin
UNITED STATES ATTORNEY‘S OFFICE
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Andrew C. Noll [ARGUED]
UNITED STATES DEPARTMENT OF JUSTICE
CRIMINAL DIVISION, APPELLATE SECTION
950 Pennsylvania Avenue NW
Room 1252
Washington, DC 20530
Counsel for Appellee
OPINION OF THE COURT
BIBAS, Circuit Judge.
Guns and drugs can be a lethal cocktail. So Congress passed
Today, we hold that history and tradition justify
I. WHILE SMOKING MARIJUANA REGULARLY, HARRIS BUYS THREE GUNS
When Erik Harris was 21, he bought his first pistol. Before buying the gun, Harris filled out a federal form that asked if he was “an unlawful user of or addicted to marijuana.” 2 App. 199. He checked “no.” Eleven days later, he went back to the same dealer to buy a second pistol. Again, he filled out the same form. And again, he checked “no.”
Five days later, he went out partying with one of his new guns. He got “really drunk” and high and, in the revelry, lost his new gun. 3 Apр. 34. The next morning, he reported it stolen. Then he went back to the same dealer to buy a third pistol as
When Harris‘s missing gun turned up in a felon‘s hands, officers called Harris in for questioning. There, he admitted that he smoked marijuana regularly, including earlier that same day. But throughout the interview, he gave different estimates of how often he had smoked in the past year. And he did not say how much or how often he had smoked in the weeks leading up to and during his possession of the three guns.
When police asked him if, on the federal form, he had answered honestly about his marijuana use, he hedged that it “depends which way you look at it.” 3 App. 54. But he conceded that he “didn‘t answer honestly, for the most part” on the form. 3 App. 58. He acknowledged being an “unlawful user” of marijuana “because I do use it today.” 3 App. 53.
The government charged Harris with three counts under
The District Court denied Harris‘s motion. It made no specific finding about how much or how often Harris was smoking in the weeks around his gun possession. But it concluded that
II. TWO ANALOGUES JUSTIFY § 922(g)(3) ‘S RESTRICTIONS FOR SOME DRUG USERS
At step one, the Second Amendment presumptively protects Harris‘s conduct. Drug users who are adult citizens are among “the people” who fall within its scope. Range v. Att‘y Gen., 124 F.4th 218, 226–28 (3d Cir. 2024) (en banc). And
So our inquiry turns on the second step: whether disarming Harris is “consistent with the principles that underpin our regulatory tradition.” United States v. Rahimi, 602 U.S. 680, 692 (2024). Modern laws pass this test if they are ” ‘relevantly similar’ to laws that our tradition is understood to permit,” especially in “[w]hy and how [they] burden[]
Though our Second Amendment law looks to history and tradition, it is not “trapped in amber.” Id. at 691. The Amendment “permits more than just those regulations identical to ones that could be found in 1791.” Id. at 692. We should not “assume[] that founding-era legislatures maximally exercised their power to regulate” and thus that every novel regulation is unconstitutional. Id. at 739–40 (Barrett, J., concurring). Modern regulations must rest on historical “principles” but need not squeeze into narrower historical “mold[s].” Id. at 692 (majority), 740 (Barrett, J., concurring). This means that the government need identify only a “historical analogue,” not a “historical twin.” Id. at 701 (majority) (quoting Bruen, 597 U.S. at 30). And the analogy turns on similarity in principle, not specific facts: A historical law is a fitting analogue for a modern one if it burdens Second Amendment rights for comparable reasons (the “why“) using comparable means (the “how“). Id. at 692.
The most obviously applicable historical tradition here would be one regulating gun possession by marijuana users. Yet no Founding-era law disarmed them. That is no surprise. Despite speculation that some Founders smoked hemp, it was mainly a source of cloth, paper, and rope, not a drug. See Martin Booth, Cannabis: A History 33–37 (2003).
But the government identifies historical cousins to
A. The Founding Generation incapacitated drunks who posed a risk of danger to others
After marijuana, the next most intuitive analogue to the modern mind is alcohol. Drinking lots of alcohol was a normal part of colonial life. Mark Edward Lender & James Kirby Martin, Drinking in America: A History 9–14 (1987). But the Founders also understood that drinking could provoke people to act dangerously. In England, drunkenness was widely decried as contributing to crime and violence. See Dana Rabin, Drunkenness and Responsibility for Crime in the Eighteenth Century, 44 J. Brit. Studies 457, 459–66 (2005). So in 1606, England banned public drunkenness, declaring it “the roote and foundacion of many other enormious Synnes, as Bloodshed Stabbinge Murder and such lyke.” 4 Jac. 1, c. 5 (1606); see also 4 William Blackstone, Commentaries *64 (discussing the law). And justices of the peace could require twice-convicted drunks to post sureties for their good behavior; drunks who did not comply could be jailed. Michael Dalton, The Country Justice: The Practice, Duty and Power of the Justices of the Peace 289 (London, Henry Lintot 1746).
When the Founders crossed the Atlantic, they carried these concerns with them. Dr. Benjamin Rush, a signer of the Declaration of Independence, delegate to the Continental Congress, and preeminent Founding-era medical authority, noted that intoxication breeds crime, including “[f]ighting,” “[b]urglary,” and “[m]urder.” Benjamin Rush, An Inquiry into the Effects of Ardent Spirits upon the Human Body and Mind 2 (8th ed., Boston, James Loring 1823). Likewise, he viewed “crimes and infamy ... [as the] usual consequences
States recognized the danger of mixing alcohol with guns. An early Rhode Island law banned firing guns at night and in taverns, and a New York law barred shooting around New Year‘s Eve to prevent damage caused by combining alcohol with firearms. See Acts & Laws of the English Colony of Rhode-Island & Providence Plantations 120 (Newport, Hall 1767); Act of Feb. 16, 1771, ch. 1501, reprinted in 5 The Colonial Laws of New York from the Year 1664 to the Revolution 244, 244–46 (Albany, James B. Lyon 1894).
Plus, early legislatures authorized constables to confine drunks who posed a risk to others until they sobered up. See, e.g., General Laws and Liberties of the Massachusetts Colony 81 (1672) (authorizing officers to imprison any drunk who was “abus[iv]e to” or was “striking” others); Grants, Concessions, and Original Constitutions of the Province of New-Jersey: The Acts Passed during the Proprietary Governments, and Other Material Transactions before the Surrender Thereof to Queen Anne 107 (1753) (ordering that drunks who “are unruly and disturbers of the Peace, shall be put in the Stocks, until they are Sober“).
Some jurisdictions even locked up anyone found drunk in public. Act of June 18, 1807, reprinted in Laws of the State of New-Hampshirе, Passed from December Session, 1805, to June Session, 1810, Inclusive 74 (Concord, N.H., Isaac Hill 1811) (empowering officers to “arrest any ... common drunkards” found at night and keep them in jail “until the following day“); Act of Sept. 17, 1807, reprinted in Compend of the Acts of Indiana, From the Year Eighteen Hundred and Seven Until That of Eighteen Hundred and Fourteen, Both Inclusive 54–55, 91 (Vincennes, Ind., Elihu Stout 1817) (ordering justices of the peace to imprison noisy drunks for up to “48 hours“).
Others enacted surety regimes empowering magistrates to make drunkards give security for peace and good behavior or be imprisoned. Acts and Laws of his Majesties Colony of Rhode-Island, and Providence-Plantations in America 11 (Boston, John Allen 1719); An Act Against Breaking the Peace, reprinted in Acts and Laws of the State of Connecticut, in America 189 (Hartford, Elisha Babcock 1786); The Public Laws of the State of South-Carolina App. II at 26 (Philadelphia, Aitken & Son 1790); Act of December 26, 1792, in Digest of the Laws of Virginia Which are A Permanent Character and General Operation 756 n.2 (Richmond, Smith & Palmer 1841); Act of Dec. 16, 1812, in A Digest of the Laws of the Corporation of the City of Washington to the First of June, 1823, at 141 (Washington, D.C., James Wilson 1823) (requiring those “found ... drunk in or about the streets” to “enter into security for good behaviour for a reasonable time” or be sentenced to 90 days’ labor); see also 1 Laws of the State of Delaware 173-74 (New Castle, Del., Samuel & John Adams 1797) (punishing drunkenness and requiring drunks who abused arresting officers to be “bound to his or her good behaviour” as “breaker[s] of the peace“); A Digest of the Laws of Maryland 206 (Baltimore, Thomas Herty ed., 1799) (punishing drunkenness and requiring any drunkard who “revil[ed]” arresting officers to “give security ... fоr his good behaviour for three months[] or suffer one month‘s imprisonment without bail“).
Like the surety laws that the Court relied on in Rahimi, these regimes were a “form of preventive justice“: Drunks had to promise not to break the peace, lest they be locked up and thus disarmed. Rahimi, 602 U.S. at 695 (internal quotation marks omitted).
After alcohol, the next most fitting historical analogy to marijuana is how the Founders thought about the danger posed by the mentally ill. “Obviously, mental illness and drug use are not the same thing.” United States v. Veasley, 98 F.4th 906, 912 (8th Cir. 2024). But in dealing with a new social problem like habitual marijuana use, as Judge Stras has explained, “we cannot look at history through a pinhole.” Id. (also providing many of the sources discussed below). Instead, we must broaden our view by looking at how the Founding generation addressed all analogous problems.
And the Founding Generation often analogized intoxication to mental illness, sharing our modern intuition that “their behavioral effects overlap.” Id. They understood “habitual drinking” as, in part, a form of “blameless insanity.” Erik Fisher, The Urge: Our History of Addiction 47 (2022). Dr. Rush described drunkenness as “a temporary fit of madness.” Rush at 6. Likewise, one of Dr. Rush‘s patients, a chronic drug user, was diagnosed as suffering “[i]nsanity from the use of Opium.” Elizabeth Kelly Gray, Habit Forming: Drug Addiction in America, 1776-1914, at 20 (2023). Medical observers started seeing excessive drinking as a “significant” trigger of “madness.” Mary Ann Jimenez, Changing Faces of Madness 72 (1987). Thomas Cooley‘s influential treatise later drew the same comparison. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union *599 n.1 (Boston, Little, Brown & Co. 1868) (“Drunkenness is regarded as temporary insanity.“).
The analogy fit because the Founders understood mental illness as “a transitory condition, just like intoxication,” that impaired one‘s mental faculties temporarily. Veasley, 98 F.4th at 913. Those who suffered from bouts of mental illness were called “lunatic[s],” drawn from the Latin word for the moon, on the belief that they “ha[d] lucid intervals, sometimes enjoying [their] senses, and sometimes not, and that frequently depending on the change of the moon.” 1 Blackstone at *304. (Because we focus on the history, we use the historical terms even though they offend modern ears.) Lunatics intermittently “lost the use of [their] reason” and regained it. Id.; accord Anthony Highmore, A Treatise on the Law of Idiocy and Lunacy 3, 104-05 (London, R. Wilks 1807); Lunatic, in 3 A New and Complete Dictionary of Arts and Sciences 1951 (London, Society of Gentlemen 1754). “[T]he law always imagine[d] that these accidental misfortunes [of mental illness] may be removed ....” 1 Blackstone at *305.
Still, the Founders understood that some lunatics posed a risk of endangering others because of their mental state. When a lunatic posed no danger to society, he rеmained free, retaining an ordinary citizen‘s rights and responsibilities. Veasley, 98 F.4th at 913; see also Highmore at 128–29 (stating that a will that a lunatic drew up while lucid was valid). But when officials determined that a person might be in a state of lunacy that would pose a danger to society, the lunatic temporarily lost his liberty. He was locked up in a jail, hospital, or asylum until the threat he posed abated. In eighteenth-century England, justices of the peace could lock up those “who by Lunacy, or otherwise, are furiously mad, or are so far disordered in their Senses that they may be dangerous to be permitted to go abroad.” Justices Commitment Act of 1743, 17 Geo. 2, c. 5, § 20 (Eng.) (emphasis added). These restrictions were usually temporary, lasting “only so long as such lunacy or disorder shall continue, and no longer.” Henry Care & William Nelson,
The colonists brought these English practices with them across the Atlantic. Philadelphians who were both mentally ill and dangerous “were confined in barred cells in the basement” of a hospital; “particularly violent individuals” were “restrained using a ‘straitwaistcoat’ or ‘mad shirt,’ or heavy arm and leg chains.” Lynn Gamwell & Nancy Tomes, Madness in America 20 (1995). New York provided that the “furiously mad” could be “kept safely locked up” and “chained.” An Act for Apprehending and Punishing Disorderly Persons, c.31 (1788), reprinted in 2 Laws of the State of New York Passed at the Sessions of the Legislature Held in the Years 1785, 1786, 1787 and 1788, Inclusive 643, 645 (Albany, Weed, Parsons & Co. 1886). Connecticut obligated local authorities to lock up temporary lunatics who might “endanger[] [others] in person or estate.” An Act for Relieving and Ordering of Idiots, Impotent, Distracted, and Idle Persons § 18 (1793), in 1 The Public Statute Laws of the State of Connecticut 382, 386 (Hartford, Hudson & Goodwin 1808). And Massachusetts authorized justices to confine any person “so furiously mad as to render [him] dangerous to the peace and safety of the good people.” Stat. 1797, c. 62, § 3, reprinted in 2 Compendium and Digest of the Laws of Massachusetts 688 (Boston, Thomas B. Wait & Co. 1810).
To justify incapacitating someone, these officials had to predict whether he would become dangerous in periods of lunacy. They did not have to wait until he had harmed someone else. See Jimenez at 91–92 (noting that Boston‘s “maniac house” confined not only the “turbulent and almost ungovernable,” but also some who “were only ‘periodically’ insane” and even some who “were calm and not violent” because they “were viewed as potentially dangerous“). Rather, they had “a lot of discretion” to discern when someone posed enough of a threat to public safety to warrant confinement. Veasley, 98 F.4th at 914. For instance, one manual for justices of the peace explained that “[a]ny person” could “confin[e]” a lunatic “as is proper in such circumstancеs.” Lunatics, in James Parker, Conductor Generalis: Or the Office, Duty and Authority of Justices of the Peace, High-Sheriffs, Under-Sheriffs, Coroners, Constables, Goalers [sic], Jury-Men, and Overseers of the Poor 290, 291 (New York, John Patterson 1788).
And these same officials had to make judgment calls to discern when a person no longer needed to be confined. Officials could not possibly monitor a person‘s mental state moment by moment. So people who were in a state of lunacy were “viewed as potentially dangerous,” even if they were periodically lucid. Jimenez at 91–92. They could thus remain locked up until an official determined that the threat they posed had fully abated. See id. Those judgment calls were not exact science. Justices of the peace were typically laymen, trained neither in law nor in medicine. Chester H. Smith, The Justice of the Peace System in the United States, 15 Calif. L. Rev. 118, 127 (1927).
Temporary imprisonment required temporary disarmament. Those who were confined could not bring their guns with them into confinement. Veasley, 98 F.4th at 913 (collecting sources). So there was a longstanding, widespread tradition of disarming people whose mental illnesses caused them to lose their senses temporarily and pose a risk to others.
C. History and tradition thus support § 922(g)(3) ‘s constitutionality as applied to drug users who would pose a risk to others if armed
“Taken together,” these laws “confirm what common sense suggests“: Someone
And that is precisely what
That restriction is well-grounded in history. By taking guns out of the hands of frequent drug users,
First, the historical laws targeted a problem comparable to the one that
Likewise, Founding-era legislatures often required drunks to post bonds for their good behavior or face imprisonment, based on the judgment that drunks posed a risk to public peace and the safety of others. See, e.g., Acts and Laws of the State of Connecticut at 189; The Public Laws of the State of South-Carolina App. II at 26. In this way, both the drunkenness and lunacy laws operated like the surety and going-armed laws that the Supreme Court blessed in Rahimi: They “permit[ted] the disarmament of individuals who pose a credible threat to the physical safety of others,” thereby “providing a mechanism for preventing violence before it occurred.” Rahimi, 602 U.S. at 693, 697. And they both did so based on a risk assessment: Is someone likely to pose a danger to others because of his impaired mental state?
Plus,
Our partially dissenting colleague parts ways with us, contending that a test focused on risk of danger impermissibly lowers the bar. According to our dissenting colleague, someone must be “plainly” dangerous to be disarmed. Dissent at 6. Anything else flouts the history and precedent that binds us, he says. Yet it is the other way around. To start, the history clearly shows that officials did not need to wait to act until a drunkard or mentally ill person had harmed another. Rather, as our sister circuit has acknowledged, officials determined whether to confine a “lunatic” based on whether there would be “some risk of mischief without it.” Cooper, 127 F.4th at 1096 (emphasis added) (internal quotation marks omitted). The same goes for drunks. True, as our dissenting colleague points out, a few laws let officials confine drunks only after they acted abusively. Dissent at 4–5. But that plucks out a handful of the dozen that we cite, obscuring historical reality. See Bruen, 597 U.S. at 65–66 (cautioning against cherry-picking history). Many other laws deemed mere drunkenness sufficient to justify temporary disarmament. See, e.g., Acts and Laws of the State of Connecticut at 189 (authorizing officials to make any “drunkard[ ]” post surety for good behavior or be imprisoned); The Public Laws of the State of South-Carolina, App. II at 26 (same); Digest of the Laws of Virginia Which are A Permanent Character and General Operation at 756 n.2 (same); A Digest of the Laws of the Corporation of the City of Washington at 141 (same); Acts and Laws of the State of New-Hampshire at 74 (authorizing officials to temporarily confine drunks); Compend of the Acts of Indiana at 54–55 (same). Even the Connecticut surety regime, which our dissenting colleague says disarmed only those who “terrif[ied] or disquiet[ed]” others, actually authorized officials to require all “drunkards” to post surety for good behavior. Laws of the State of Connecticut at 189; see Dissent at 4. Indeed, at the Founding, the consensus was that surety laws extended to all “common drunkards,” not just those who acted abusively. 4 Blackstone at *256; Parker at 348; Eliphalet Ladd,
Our colleague equally misses the mark when he claims that we dodge binding precedent. True, Rahimi concluded that someone found to “pose[ ] a clear threat of physical violence to another” could be disarmed. Rahimi, 602 U.S. at 698. But Rahimi did not exhaustively catalogue when someone could be disarmed; it answered only that narrower question presented. Id. at 684-85 (considering as-applied challenge to
The dissent similarly errs in analyzing Pitsilides. There, we considered only an as-applied challenge to
Of course, the history justifying
Even so, we discern a similar principle from the relevant history: Drug users can be disarmed based on the likelihood that they will physically harm others if armed. But here is the distinction: To assess that risk, judges need not wait until a drug user has harmed or threatened another. They may decide whether a drug user “would likely pose a physical danger to others if armed” based on the nature of someone‘s drug use and the risk that it will impair his ability to handle guns safely. Pitsilides, 128 F.4th at 210 (cleaned up); see also id. at 212 (noting that conduct can be relevant if it bears on whether someone “likely poses an increased risk of physical danger to others if armed“). In divining this rule, we do not flout precedent but abide by it. Bruen tells us to follow the history where it leads. See Bruen, 597 U.S. at 17. That is all we do here.
Finally, the dissent protests the consequences, worried that our holding will disarm even his hypothetical “hunters in a duck blind.” Dissent at 13. But a buzzed brain with a loaded gun sounds like a misfire waiting to happen—the exact risk that our historical tradition suggests justifies disarmament.
*****
In sum,
III. ON REMAND, THE DISTRICT COURT MUST FIND MORE FACTS TO DECIDE WHETHER § 922(g)(3) IS CONSTITUTIONAL AS APPLIED TO HARRIS
The District Court let the government prosecute Harris under
District Court was bound to apply the means-end scrutiny dictated by Binderup. But then the Supreme Court decided Bruen, “effect[ing] a sea change in Second Amendment law” and abrogating that decision. Pitsilides, 128 F.4th at 208. Now “history and tradition,” not “legislative interest balancing,” dictates whether a law comports with the Second Amendment. Bruen, 597 U.S. at 22, 26.
The District Court had no chance to take the first crack at whether
On remand, the parties should have a chance to present their own evidence and arguments about how Harris‘s drug use affected his mental state and riskiness. In particular, the District Court should consider, among other factors:
- The length and recency of the defendant‘s use during and shortly before his gun possession;
- The drug‘s half-life;
- Whether use of the drug affects a person‘s judgment, decision-making, attention, inhibition, or impulse control;
- Whether the drug may induce psychosis;
- The drug‘s interference with a user‘s perception of his own impairment; and
- The long-term physical and mental effects of the use of that drug.
We include this non-exhaustive list of factors to guide the District Court‘s inquiry into the individual defendant‘s use, not to dictate it. On remand, the District Court should explore any questions that it thinks bear on the inquiry here. And future courts considering
We stress that, consistent with the history, district courts need make only probabilistic judgments of danger. A drug user need not have harmed someone, threatened harm, or otherwise acted dangerously to justify disarmament. But consistent with the history, district courts must make individualized judgments and conclude that disarming a drug user is needed to address
IV. SECTION 922(g)(3) Is NOT VAGUE
Harris also challenges the statute as vague on its face. He objects that it does not define the phrase “unlawful user” and so does not give “ordinary people fair notice of the conduct it punishes.”
A. As a rule, defendants may not facially challenge criminal laws
To challenge
Still, Harris claims that the Court jettisoned this bedrock rule in Johnson. There, it invalidated the Armed Career Criminal Act‘s residual clause as unconstitutionally vague. Id. at 597. It did so even though the clause was not vague “in all its applications” and did not consider whether it was vague as applied to the defendant‘s own conduct. Id. at 603. But it did that because of the unique problems with applying the categorical approach. Morales-Lopez, 92 F.4th at 942-43. Under that approach, courts had to ignore the defendant‘s “real-world facts” and instead hypothesize the “idealized ordinary case” of the crime. Johnson, 576 U.S. at 597. Those intellectual gymnastics denied defendants fair notice about what real-world conduct the residual clause punished. Id. at 604. But that provision is worlds apart from ordinary criminal laws, like
We thus join our sister circuits in holding that Johnson did not abrogate the ordinary rule for facial-vagueness challenges. See United States v. Requena, 980 F.3d 30, 40-43 (2d Cir. 2020); United States v. Hasson, 26 F.4th 610, 620-21 (4th Cir. 2022); United States v. Cook, 970 F.3d 866, 877 (7th Cir. 2020); United States v. Bramer, 832 F.3d 908, 909 (8th Cir. 2016) (per curiam); Morales-Lopez, 92 F.4th at 942-43; Bowling v. McDonough, 38 F.4th 1051, 1061-62 (Fed. Cir. 2022). Harris cannot bring his facial-vagueness attack without first showing that the phrase “unlawful user” is vague as applied to his case.
B. Section 922(g)(3) is not vague as applied to Harris
Harris cannot clear that bar. Though there will be borderline cases, Harris‘s habitual marijuana smoking falls squarely within
Of course, the exact boundaries of “unlawful user” are debatable. See Augustin, 376 F.3d at 138-39. But when a statute “can be made constitutionally definite by a
Harris‘s conduct fits the bill. He smoked unlawfully: Federal law makes marijuana illegal.
Future cases will require closer calls about how often and how recently one must use a drug to count as an “unlawful user.” For instance, does a person who smokes marijuana sporadically before bed for chronic back pain do it regularly enough to count? These cases will present close issues not only of statutory construction, but also of Second Amendment rights. But here, the question is not close. As applied,
V. HARRIS‘S § 922(a)(6) CONVICTIONS MUST STAND
Finally, Harris challenges his convictions for falsely denying that he was an unlawful user. At first, he claimed that there was insufficient evidence to sustain the convictions. But his reply brief disavowed that claim. Now, he claims only that if we invalidate his
Harris‘s convictions do not violate due process, so this claim would seem to rise and fall with how the District Court decides the Second Amendment issue on remand. But we do not reach this claim because Harris raised it for the first time in his reply brief. Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 146 (3d Cir. 2017). Harris insists that he has made the claim all along but simply mislabeled it in his opening brief. See United States v. Negroni, 638 F.3d 434, 445 (3d Cir. 2011). Yet nothing in that brief suggests that he was claiming, as he does in reply, that vacating his
*****
Common sense tells us that some mind-altering substances make people too dangerous to trust with guns. So does our nation‘s regulatory tradition, which has long embraced similar common-sense restrictions for drunks and the dangerously mentally ill. Temporarily disarming a frequent marijuana user like Harris may fall within that tradition. But we lack enough facts to decide if that is so. Even so, the
KRAUSE, Circuit Judge, concurring, with whom BIBAS, Circuit Judge, joins.
I join the majority opinion in full. As the majority persuasively explains, while habitual marijuana use was virtually nonexistent at the Founding, early legislatures wrestled with analogous concerns, namely drunkenness and lunacy. See Maj. Op. 7-14. And they imposed similar, if not more burdеnsome, restrictions on drunks and lunatics than those which
Our regulations concerning marijuana have shifted over time with our developing uses of it and our understanding of its properties. As the majority recounts, early uses of hemp were limited to cloth, paper, and rope. See id. at 6. It was not until the early twentieth century that people began smoking marijuana recreationally. Martin Booth, Cannabis: A History 127-28 (2003). Early regulation—coming off the heels of the temperance movement—primarily consisted of state and local enforcement, until the federal government in 1937 stepped in with the Marihuana Tax Act, which imposed “onerous administrative requirements” and “prohibitively expensive taxes” that “practically curtailed the marijuana trade.” Gonzales v. Raich, 545 U.S. 1, 11 (2005).
By the mid- to late-1960s, however, public sentiment had changed, with recreational marijuana use budding among young people. See James B. Slaughter, Marijuana Prohibition in the United States: History and Analysis of a Failed Policy, 21 Colum. J.L. & Soc. Probs. 417, 420 (1988). And by the mid-1970s, marijuana gained wider acceрtance as a recreational drug. Booth at 240. These changes in Americans’ attitudes towards marijuana prompted states to revise their regulations, so that by 1973, nearly every state had substantially reduced its penalties for simple marijuana possession. Richard J. Bonnie & Charles H. Whitebread, The Marijuana Conviction: A History of Marijuana Prohibition in the United States 240, 278-79 (1999). Much of this deregulation has been chalked up to the congressionally directed National Commission on Marihuana and Drug Abuse‘s report, Marihuana: A Signal of Misunderstanding. See Slaughter at 422-24. Its comprehensive investigation into marijuana concluded, among other things, that “there is little proven danger of physical or psychological harm from the experimental or intermittent use of the natural preparations of cannabis,” and that “its use at the present level does not constitute a major threat to public health.” Nat‘l Comm‘n on Marihuana and Drug Abuse, Marihuana: A Signal of Misunderstanding 65, 90 (1972).
The federal government, however, remained unpersuaded. Recognizing its psychotropic effects, Congress prohibited the manufacture, distribution, dispensation, and possession of marijuana in 1970, replacing the preceding patchwork of various
retrenchment in public perceptions of marijuana in the 1980s, triggered by “[a]dolescent marijuana use, the appearance of cocaine use and abuse on a national scale[,] and the rising potency of marijuana.” Slaughter at 438-39. This pendulum swing catalyzed renewed federal enforcement of marijuana prohibitions and additional federal criminal legislation targeting the drug trade. See id. at 443-46; Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 1976.
Today, marijuana is legal to various extents in forty states, including for recreational use in twenty-four states and the District of Columbia. State Medical Cannabis Laws, Nat‘l Conf. of State Legislatures (June 27, 2025), https://www.ncsl.org/health/state-medical-cannabis-laws. Federal law, however, has continued to bar its use, listing it in the Controlled Substances Act as a Schedule I controlled substance,
That brings us to the case presently before us, for even as some have pressed Congress to follow the states’ lead, modern science has prompted a reassessment of that more permissive approach to marijuana use, see, e.g., Rosalie Liccardo Pacula et al., Developing Public Health Regulations for Marijuana: Lessons from Alcohol and Tobacco, 104 Am. J. Pub. Health 1021, 1022 (2014) (recognizing the growing consensus about “certain acute effects and consequences of chronic [marijuana] use” warranting public health regulation), with implications for as-applied challenges by marijuana users.
Clinical studies reflect that marijuana use impairs users’ judgment, decision-making, attention, and inhibition, Michael L. Alosco et al., Neuropsychology of Illicit Drug Use and Impulse Control Disorders, in Clinical Neuropsychology: A Pocket Handbook for Assessment 605, 608 (Michael W. Parsons & Thomas A. Hammeke eds., 3d ed. 2014),2 causing symptoms that mirror those of mild cognitive impairment that might arise from mental illness or alcohol, see Cognitive Impairment, Nat‘l Cancer Inst. Dictionary, https://www.cancer.gov/publications/dictionaries/cancer-terms/def/cognitive-impairment (last visited July 10, 2025). According to some studies, these effects can last for hours after use, Alosco et al. at 608, and in frequent
Other studies reflect that this impaired judgment, diminished motor skills, and lower inhibition make it dangerous to combine marijuana with high-risk activities. See, e.g., Thomas D. Marcotte et al., Driving Performance and Cannabis Users’ Perception of Safety, 79 JAMA Psychiatry 201, 206 (2022) (finding that even though people may not perceive that they are unsafe drivers an hour and a half after smoking marijuana, they perform worse on driving simulators); Daniel T. Myran et al., Cannabis-Involved Traffic Injury Emergency Department Visits After Cannabis Legalization and Commercialization, JAMA Network Open, Sept. 6, 2023, art. e2331551, at 7, https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2808961 (finding that, between 2010 and 2021, cannabis-involved traffic accidents in Ontario requiring emergency-room treatment rose 475%).
Some studies show that frequent marijuana use can prolong these consequences because smoking marijuana chronically causes THC, which gives marijuana its psychoactive properties, to build up in the blood, potentially contributing to longer-lasting cognitive effects. Emese Kroon et al., Heavy Cannabis Use, Dependence, and the Brain: A Clinical Perspective, 115 Addiction 559, 565 (2019). One meta-analysis found that chronic marijuana use can impair decision-making, increase risk-taking, and exacerbate impulsivity for hours, days, or even a few weeks. See Crean et al. at 3 tbl. 2, 4-5. (“[C]hronic, heavy cannabis use[rs] show... enduring deficits following three weeks or more abstinence” in decision-making and other executive functions.).
Notably, the marijuana currently available for consumption may magnify these risks, as the marijuana available today is far more potent than it was several decades ago, containing about four times as much THC. Compare Mahmoud A. ElSohly et al., Changes in Cannabis Potency over the Last Two Decades (1995-2014): Analysis of Current Data in the United States, 79 Biological Psychiatry 613, 613 (2016) (reporting 4% THC concentration in 1995), with Suman Chandra et al., New Trends in Cannabis Potency in USA and Europe During the Last Decade (2008-2017), 269 Eur. Archives Psychiatry & Clinical Neuroscience 5, 9 (2019) (reporting increase to 17% THC concentration by 2017).
I agree with the majority that
AMBRO, Circuit Judge, concurring in part and dissenting in part
Erik Harris has no history of violence or threatening behavior. The Government
I
Any modern statutory ban on firearms must be “consistent with the principles that underpin the Nation‘s regulatory tradition.” Rahimi, 602 U.S. at 681 (citing N.Y. State Rifle & Pistol Ass‘n v. Bruen, 597 U.S. 1, 26-31 (2022)). A two-step framework guides our analysis.
At the first step, we ask whether the Second Amendment presumptively protects Harris‘s conduct. All agree that it does. Harris is among “the people” who have a right “to keep and bear [a]rms.”
At the second step, the Government must prove that disarming Harris is “consistent with the Nation‘s historical tradition of firearm regulation.” Range v. Att‘y Gen., 124 F.4th 218, 228 (3d Cir. 2024) (en banc) (quoting Bruen, 597 U.S. at 24). To carry its burden, the Government must show that
Case law has distilled three additional rules. First, and most important, “the Second Amendment‘s touchstone is dangerousness.” Pitsilides, 128 F.4th at 210 (Krause, J.) (quoting Folajtar v. Att‘y Gen., 980 F.3d 897, 924 (3d Cir. 2020) (Bibas, J., dissenting)). The consistent theme uniting Founding-era restrictions is thаt individuals who pose a threat to the physical safety of others can be disarmed. Rahimi, 602 U.S. at 693, 697 (addressing a challenge to
Second, we know that “[n]either our historical tradition nor our modern understanding of the Second Amendment ... permits us to blindly defer to a categorical presumption that a given individual permanently presents a special risk of danger.” Range, 124 F.4th at 276 (Krause, J., concurring in the judgment); see also id. at 230 (majority rejecting a “categorical argument” that all “those convicted of serious crimes” could be “expected to misuse firearms” because it was “far too broad” (internal quotation marks omitted)). At the Founding, the state could burden a person‘s Second Amendment right only after an individualized determination that he posed a physical danger to others. So today‘s as-applied dangerousness inquiry is common sensе: if the standard for disarming drug users is dangerousness, and countless marijuana users are not dangerous, then not every marijuana user can be stripped of his gun rights. Categories are out. Individual assessments are in.
Finally, we know that bans on gun possession by drug users must be temporary. A person may cease to be dangerous. See Rahimi, 602 U.S. at 698-99. When he is no longer dangerous, he gets his rights—and guns—back. See id. at 699. And, per the majority, “[s]omeone who regularly uses mind-altering substances that make him a ‘credible threat to the physical safety of others with a gun’ may be disarmed temporarily until he stops using drugs.” Maj. Op. 14 (quoting Rahimi, 602 U.S. at 694, 698).
II
So what relevantly similar principle at the Founding justifies applying
For example, regulations on the “dangerously drunk” punished people who were “abus[iv]e to or ‘striking’ others.” Id. at 8 (quoting General Laws and Liberties of the Massachusetts Colony 81 (1672)). They also restricted the gun-rights of those who “abusеd” or “revil[ed]” officers, id. at 9 (first citing Laws of the State of Delaware (New Castle, Del., Samuel and John Adams 1797); and then quoting A Digest of the Laws of Maryland (Baltimore, Thomas Herty ed., 1799)), or who “terrif[ied] or disquiet[ed] the good People
True, not all regulations punished “abusive” drunks. But there is no need to “cherry pick” history. Maj. Op. 17. As my colleagues suggest, the regime as a whole was aimed to ensure good behavior, prevent drunks from breaking the peace, and address threats “to the physical safety of others,” id. at 14; see id. at 15 (“Founding-era legislatures often required drunks to post bonds ... based on the judgment that drunks posed a risk to public peace and the safety of others.“). The principle I thus draw is that Founding-era laws targeted dangerous behavior that followed from intoxication; so today those who pose a “credible threat to the physical safety of others” because of their intoxication may be disarmed. Rahimi, 602 U.S. at 693, 700.
The majority‘s analogy to laws regulating “lunatics” at the Founding is more strained. True, “[s]ociety‘s answer to mental illness ... was to lock up anyone who was dangerous or disturbing to others.” Veasley, 98 F.4th at 915 (internal quotation marks omitted). But while “[e]arly in this country‘s history[] thе ‘mentally ill and dangerous’ ended up in jails, makeshift asylums, and mental hospitals ‘with straitjackets and chains[,]’ ... ‘[t]hose who posed no danger‘... ‘stayed at home with their families,’ with ‘their civil liberties ... intact.‘” Cooper, 127 F.4th at 1095 (quoting Veasley, 98 F.4th at 913, 915).
Neither the majority nor the Government credibly explains how marijuana users resemble the dangerously mentally ill. Without a much stronger connection between marijuana use and dangerousness of the kind posed by those with serious mental illness, we cannot use the rationale underlying Founding-era laws regulating those individuals to justify
With this background, and assuming an analogy between alcohol intoxication and frequent marijuana use works when a marijuana user poses a threat of physical violence to another while armed, I abide a remand. No doubt dangerousness is the touchstone. Contra Maj. Op. 17 (suggesting I disagree with a “test focused on risk of danger“). Whether we call it a “clear threat,” “credible threаt,” or something else, the Government must show by a preponderance of the evidence that Harris‘s drug use and weapon possession make him a physical danger to others.
Though my colleagues dispute my historical overview, they do not clearly explain if they draw a different principle or, if so, what it is. They instead give us varying dangerousness thresholds for one who is armed: id. at 3 (“pose a special danger of misusing firearms“); id. at 14, 16, 18 (credible threat); id. at 19 (likely poses a danger); id. at 16, 20 (“likely poses an increased risk of
That lower threshold of increased risk ignores the bar the Supreme Court and our Court have established. The former in Rahimi spoke of a physical threat being “clear,” 602 U.S. at 698, “credible,” id. at 698-702, or “demonstrated,” id. at 698, before the Government could disarm a person.
As for our Court, the en banc decision in Range borrowed from Rahimi that threats to others had to be “clear” or “credible.” Range, 124 F.4th at 230. Or consider Pitsilides, a recent application of the dangerousness standard. We explained that Rahimi and Range showed “disarmament is justified as long as a felon ... ‘present[s] a special danger of misusing firearms,’ in other words, when he would likely ‘pose a physical danger to others’ if armed.” Pitsilides, 128 F.4th at 210 (first quoting Rahimi, 602 U.S. at 698; and then quoting Range, 124 F.4th at 232) (brackets omitted). Pitsilides had operated an illegal gambling ring on and off for more than a decade. Id. at 205-06. He staffed his games with security, and SWAT teаms had broken them up. Id. at 206. Plus he had a criminal record related to his gambling offenses. Id. at 206, 212. Adding to that, we had law establishing a link between gambling and organized crime. Id. at 213 (citing United States v. Williams, 124 F.3d 411, 417 n.7 (3d Cir. 1997) (noting “Congress[‘]s recognition that gambling has historically provided a major source of revenue for organized crime groups“)). Even on that record, we could not answer whether Pitsilides, if armed, met the dangerousness standard from Rahimi and Range, so we remanded for the District Court to determine whether he “pose[d] a special danger of misusing firearms in a way that would endanger others.” Id. at 213.
In making that determination, we deemed “crucial” a court‘s “consideration of” a defendant‘s “post-conviction conduct” that might “indicat[e] ... dangerousness.” Id. at 212. That is because “such conduct may be highly probative of whether an individual likely poses an increased risk of physical danger to others if armed.” Id. But that was not our holding. We ended our opinion by emphasizing that we remanded to fill “gaps in [the] record” with “additional discovery of facts probative to the prevailing Second Amendment analysis, including whether Pitsilides poses a special danger of misusing firearms in a way that would endanger others.” Id. at 213 (emphasis added). We never suggested that the Government could disarm Pitsilides if his gambling activity or criminal record merely “increased the risk that he could not handle guns safely.” Maj. Op. 20. We did not, nor could we, expand the holdings of Rahimi and Range in that way.
Moreover, the majority says nothing about the level to which a person‘s risk must rise before the Government can disarm him. Could a person whose risk increases from negligible to slightly more than negligible be disarmed under this test? Theoretically, most people pose a slightly greater risk of danger with a gun while intoxicated than while sober. So what the majority calls an individualized dangerousness inquiry begins to look like a categorical rule in disguise. As explained above, however, the Second Amendment rarely tolerates categorical rules. Range, 124 F.4th at 276 (“Neither our historical
My colleagues respond by arguing that Rahimi, Range, and Pitsilides do not control the outcome here because they invoke different historical traditions—those justifying
They also say that the relevant tradition here—disarming the dangerously intoxicated and the dangerously mentally ill—sanctioned predictive judgments about dangerousness even before someone got hurt. Constables, after all, did not need to wait until an intoxicated person injured somebody to disarm him. I agree. But there is a difference between (a) disarming someone who presents a clear threat of danger to others based on his behavior before he has harmed another person and (b) disarming someone because he poses some undefined level of risk. The tapestry of historical regulation yields a clear principle: people could be disarmed at the Founding when they posed a danger to others because of their intoxication. By holding that the Government can disarm someone even when he does not pose a clear threat of physical violence to another by a preponderance of the evidence, the majority draws a principle unsupported by history and tradition.
III
My colleagues write separately to expound their views on the dangers posed by marijuana. But that separate writing contains virtually no legal reasoning and gives almost no sense that it is meant to. It instead reads like a policy statement to Congress advocating for a marijuana ban. Using select non-record sources, my colleagues draw their own conclusions about marijuana‘s effects on users’ judgment, decision-making, attention, and inhibition, the duration of its alleged effects on cognition, and its potency.
For instance, they cite a meta-analysis for the proposition that “chronic marijuana use can impair decision-making, increase risk-taking, and exacerbate impulsivity for hours, days, or even a few weeks.” Conc. 5 (citing Rebecca D. Crean et al., An Evidence Based Review of Acute and Long-Term Effects of Cannabis Use on Executive Cognitive Functions, 5 J. Addiction Med. 1, 3 tbl. 2, 4-5 (2011)). They speculate that “the marijuana currently available for consumption may magnify these risks, as the marijuana available today is far more potent than it was several decades ago.” Id. at 6 (citing Suman Chandra et al., New Trends in Cannabis Potency in USA and Europe During the Last Decade (2008-2017), 269 Eur. Archives Psychiatry & Clinical Neuroscience 5, 9 (2019)). Symptoms from marijuana use, they claim, mirror those of “mild cognitive impairment that might arise from mental illness or alcohol.” Id. at 4 (Their support for this claim is a dictionary definition for “cognitive impairment” from the
We are judges—not scientists, sociologists, or policymakers. Parsing scientific evidence in the first instance is not our role, and we generally are not good at it. This kind of freewheeling appellate factfinding is inappropriate, see Amadeo v. Zant, 486 U.S. 214, 228 (1988) (reversing and remanding when “the Court of Appeals ... engage[d] in impermissible appellate factfinding“), in part because it relieves the Government of its duty to “affirmatively prove[] that [§ 922(g)(3)] is ‘consistent with the Second Amendment‘s text and historical understanding,‘” Rahimi, 602 U.S. at 737 (Barrett, J., concurring) (quoting Bruen, 597 U.S. at 26).
As my colleagues note, marijuana is legal in some form in 39 states and the District of Columbia. For better or worse, our Nation‘s democratic policymaking process has gradually liberalized laws regulating marijuana over the past few decades. I take no position on the wisdom of this trend because I am a judge, not a legislator. My colleagues have deeply-held and good-faith views about marijuana, but those views are the stuff of policy, not law, and they would be better aired in an op-ed than in the Federal Reporter.
IV
Subsection 922(g)(3) is constitutional as applied to Harris only if his marijuana use makes him a “clear threat of physical violence to another.” Pitsilides, 128 F.4th at 209 (quoting Rahimi, 602 U.S. at 698). I go no further.2 “Future cases may present other and more difficult questions .... But we take cases as they come and today [should] resolve only the question posed to us.” Bondi v. VanDerStok, 145 S. Ct. 857, 869-70 (2025).
It is a “fundamental principle of judicial restraint ... that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008) (internal quotation marks omitted).
As for Harris, here is what we know. He was a college student in 2019 with no history of violence and no prior arrests. He bought a total of three guns in February and March of that year. With each purchase he answered “no” on a federal form asking whether he was a user of or addicted to marijuana. He was, however, a regular user at that time.
Five days after he bought the second gun, Harris and his childhood friend, Jaemere Scott, celebrated Scott‘s mother‘s birthday at Scott‘s home and later at a bar. Harris drank alcohol and smoked marijuana that evening. When the two arrived at the bar, Scott asked Harris whether he had his gun on him, warning him not to bring it into the bar. Harris did not, thinking he had left it in his car, and they entered thе bar. But when Harris and Scott left, Harris realized that the gun was not in his car after all. He went to his girlfriend‘s house, checked there for the gun, could not find it, and went to sleep. The next day, he searched Scott‘s house, another friend‘s house, and his car once
The Government, joined by my colleagues in the majority, would disarm Harris because he could not locate his gun after smoking marijuana. But that gun was found with someone Harris grew up with and was close to personally. From the record, we do not know when (or if) he misplaced it, whether he was high at that time, or how it ended up with Scott (who may have stolen it). Despite its early suspicions that Harris had purchased the gun for Scott, the Government did not indict Harris for that conduct. In my view, nothing in the record before us suggests that he poses a danger to the physical safety of others.
V
Why not stick to the Supreme Court‘s Second Amendment decisions, our en banc decision in Range, or this very panel‘s holding in Pitsilides? An unlawful drug user may be disarmed if he poses a credible threat to the physical safety of others with a gun—that is, if it is more likely than not that his drug use paired with gun possession makes him dangerous. The waters are roiled enough that we need a breather (awaiting further clarity from the Supreme Court) to sort things out. Instead, we get yet another test—what matters this time is not dangerousness but any whiff of its increased risk, suggesting a lower threshold than before.
Many, if not most, readers of this partial dissent know someone who uses marijuana—maybe a sick friend who uses it to treat pain, an insomniac relative who uses it to sleep at night, a veteran who uses it to manage his post-traumatic stress disorder, or hunters in a duck blind.3 Were intoxication
minimally to increase the risk of dangerousness associated with possessing a gun, it is hard to imagine a marijuana user whom the majority‘s policy-made test would not lump together with dangerous drunks and “lunatics.” Indeed, the majority states categorically that “[c]ommon sense tells us that [marijuana] make[s] people too dangerous to trust with guns.” Maj. Op. 26. The consequence of that reasoning could be that most of these individuals, along with countless American adults, are vulnerable to disarmament. That should give us pause. If our reasoning authorizes legislatures to suspend the constitutional rights of so many for such common behavior, it may mean that we are not taking the Supreme Court‘s instruction seriously and are instead drawing a “principle at such a high level of generality that it waters down the right.” Rahimi, 602 U.S. at 740 (Barrett, J., concurring).
The majority leaves us with an amorphous holding that flouts precedent, defies common sense, and creates a circuit split. Gun possession and marijuana use may at times be a “lethal cocktail,” Maj. Op. 2,