UNITED STATES OF AMERICA, Plaintiff - Appellant, v. JARED MICHAEL HARRISON, Defendant - Appellee.
No. 23-6028
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
August 26, 2025
PUBLISH
FILED
United States Court of Appeals Tenth Circuit
August 26, 2025
Christopher M. Wolpert
Clerk of Court
Steven W. Creager, Assistant United States Attorney (Robert J. Troester, United States Attorney, with him on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellant.
Laura K. Deskin, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellee.
Before ROSSMAN, KELLY, and MURPHY, Circuit Judges.
ROSSMAN, Circuit Judge.
Jared Michael Harrison was charged with violating
The district court comprehensively analyzed the constitutional question. But the district court ruled before the Supreme Court decided United States v. Rahimi, 602 U.S. 680 (2024), which issued while this appeal was pending and clarified our constitutional inquiry. Rahimi instructs “the appropriate analysis [in Second Amendment cases] involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Id. at 692. With the benefit of Rahimi, we cannot fully endorse the district court‘s understanding of the historical record.
According to the district court, 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.” Id. at 692. Still, we cannot yet decide the ultimate constitutional question. To determine whether
I1
On May 20, 2022, a law enforcement officer from the Lawton, Oklahoma Police Department stopped Mr. Harrison for running a red light. When Mr. Harrison rolled down his window, the officer smelled marijuana. Mr. Harrison told the officer that he worked at a medical marijuana dispensary but did not have a state-issued medical marijuana card. The officer then instructed Mr. Harrison to get out of his car, and he complied.2 The officer did not conduct a field sobriety test or blood draw. Another officer then arrived, and the two searched Mr. Harrison‘s car. They found:
a loaded revolver on the driver‘s side floorboard; two prescription bottles in the driver‘s side door, one empty and one containing partially smoked marijuana cigarettes; and a backpack in the passenger seat. The backpack contained marijuana, THC gummies, two THC vape cartridges, and a pre-rolled marijuana cigarette and marijuana stems in a tray.
App. at 88. Mr. Harrison was arrested, and Oklahoma charged him with possession of marijuana, possession of paraphernalia, and failure to obey a traffic signal.
On August 17, 2022, a federal grand jury returned an indictment charging Mr. Harrison with violating
It shall be unlawful for any person . . . who is an unlawful user of or addicted to any controlled substance . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The indictment alleged Mr. Harrison “knowingly possessed a firearm . . . which was in or affecting interstate commerce,” “with knowledge that he was an unlawful user of marijuana, a controlled substance.” App. at 8. The indictment stated no additional information about Mr. Harrison‘s marijuana use or gun possession.3
On February 2, 2023, in a thorough 54-page order, the district court granted Mr. Harrison‘s motion to dismiss. The district court held the Second Amendment‘s text covered Mr. Harrison‘s conduct because he is among “the People” to whom the Amendment refers. The court further held “[a]pplying § 922(g)(3) to Harrison is inconsistent with the Nation‘s historical tradition of firearm regulation.” App. at 96. The government timely appealed.
While the appeal was pending, the Supreme Court decided Rahimi, which held
II
Before addressing the arguments before us, we must explain the scope of Mr. Harrison‘s Second Amendment challenge. This is a threshold issue because it determines what Mr. Harrison must “establish” in order to “succe[ed].” Rahimi, 602 U.S. at 693 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). The parties dispute whether Mr. Harrison brought a facial challenge, an as-applied challenge, or some mixture of the two. Compare Ans. Br. at 12 (Mr. Harrison contending
“A facial challenge is a head-on attack [of a] legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications.” United States v. Carel, 668 F.3d 1211, 1217 (10th Cir. 2011) (alteration in original) (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring), vacated, 552 U.S. 1306 (2008)). To succeed on a facial challenge, Mr. Harrison would need to “establish that no set of circumstances exists under which the Act would be valid.” Rahimi, 602 U.S. at 693 (quoting Salerno, 481 U.S. at 745); see also Doe v. City of Albuquerque, 667 F.3d 1111, 1122-27 (10th Cir. 2012) (discussing different ways of understanding facial challenges). “[A]n as-applied challenge concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case.” Carel, 668 F.3d at 1217 (quoting Pruitt, 502 F.3d at 1171 (McConnell, J., concurring)). These different standards implicate
In the district court, Mr. Harrison seemed to challenge
Mr. Harrison‘s as-applied challenge concerns the application of
For the first time in its supplemental briefs on appeal, the government raises two new arguments concerning the scope of Mr. Harrison‘s challenge. These arguments come too late.
First, the government suggests Mr. Harrison cannot litigate an as-applied challenge at this procedural stage. According to the government, “pre-trial as-applied challenges to the constitutionality of a statute are rarely permissible.” Gov‘t Supp. Br. at 5 n.2 (citing United States v. Pope, 613 F.3d 1255, 1260 (10th Cir. 2010)). In Pope, we explained courts typically should not consider pre-trial “motions to dismiss that require resort to facts outside the indictment and bearing on the general issue” of guilt. Id. at 1260. But a court may consider facts outside the indictment when “[1] the operative facts are undisputed and [2] the government fails to object to the district court‘s consideration of those undisputed facts,’ and [3] the district court can determine from them that, ‘as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.‘” Id. (alterations in original) (quoting United States v. Hall, 20 F.3d 1084, 1088 (10th Cir. 1994)).
Also, when the government litigates a case in a way that implicitly endorses the district court‘s resort to facts outside the indictment, and objects only after the case has proceeded on that basis, we have recognized “the government‘s procedural objection is untimely.” United States v. Brown, 925 F.2d 1301, 1304 (10th Cir. 1991); Hall, 20 F.3d at 1087-88 (recognizing the timeliness holding in Brown, and allowing resort to facts outside the indictment when “the government did not dispute the facts surrounding the . . . charge“); see also Pope, 613 F.3d at 1262 (affirming denial of a motion to dismiss when, prior to appeal, “the government did contest the district court‘s ability to resolve [the] motion on the basis of facts outside [the] indictment“); see also Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993) (explaining a party cannot “lose in the district court on one theory of the case, and then prevail on appeal on a different theory“).
That is the situation here. In the district court, the government never took issue with Mr. Harrison‘s ability to bring—or the district court‘s ability to resolve—an as-applied challenge. See, e.g., App. at 56-65 (government failing to raise this issue in its district court brief). Even on appeal, the government initially accepted that Mr. Harrison was raising an as-applied challenge to
Second, the government raises a new factual objection—that the record before the district court “permit[ted] an inference that Mr. Harrison was intoxicated.” Gov‘t Supp. Br. at 3; see App. at 55-65 (the government failing to suggest this was the case in its district court brief). Again, we cannot endorse the government‘s effort to raise this new argument in its supplemental briefing on appeal. See id.; Lyons, 994 F.2d at 721; State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (“[A]ppellant failed to raise this issue in his opening brief and, hence, has waived the point.“).
We therefore conclude this case presents a challenge only to
III
We now explain the legal standards applicable to Second Amendment challenges.
We “review challenges to the constitutionality of a statute de novo.” United States v. Wilks, 58 F.3d 1518, 1519 (10th Cir. 1995). “Statutes are presumed constitutional.” United States v. Dorris, 236 F.3d 582, 584 (10th Cir. 2000). “To ascertain the constitutionality of a law burdening an individual‘s exercise of the Second Amendment, we apply a two-part burden-shifting framework first established in Bruen and later clarified in Rahimi.” Rocky Mountain Gun Owners, 121 F.4th at 113.
In Bruen, the Supreme Court explained the “standard for applying the Second Amendment is as follows:
- When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.
- The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.
597 U.S. at 24. We refer to the two parts of this standard as “step one” and “step two.” Rocky Mountain Gun Owners, 121 F.4th at 113-28; see also Rahimi, 602 U.S. at 744 (Jackson, J., concurring) (referring to Bruen‘s “two-step evaluation“).
“At step one, the plaintiff is tasked with establishing that the Second Amendment‘s explicit text, ‘as informed by history,’ encompasses the conduct they seek to engage in.” Rocky Mountain Gun Owners, 121 F.4th at 113 (quoting Bruen, 597 U.S. at 19). We must “ask (1) whether the challenger is part of ‘the people’ whom the Second Amendment protects, (2) whether the item at issue is an ‘arm’ that is ‘in common use’ today for self-defense, and (3) whether the proposed course of conduct falls within the Second Amendment.” Id. at 114 (quotation omitted) (citing Bruen, 597 U.S. at 31-32). If the plaintiff succeeds, the burden shifts to the government.
At step two, to show a challenged regulation is consistent with our historical tradition, the government must engage in “analogical reasoning.” Bruen, 597 U.S. at 28, 30. That is, Bruen requires the government to point to historical regulations that are analogous to the challenged regulation. See id. at 28-29. Whether a historical regulation is analogous to a modern one for purposes of Bruen step two—or whether they are “relevantly similar“—depends on “how and why the regulations burden” the right to bear arms. Id. at 29 (emphasis added). We thus ask “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Id. (emphasis added). Bruen held the government must “identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id. at 30.
To evaluate which way the history cuts, Bruen provided another piece of
In Rahimi, the Supreme Court reinforced and developed Bruen‘s methodology for analogical reasoning. When considering historical analogues, Rahimi instructed, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” 602 U.S. at 692 (emphasis added); Rocky Mountain Gun Owners, 121 F.4th at 113 (emphasizing Rahimi requires us to find “principles” in our historical tradition (quoting Rahimi, 602 U.S. at 692)). Justice Sotomayor‘s concurrence in Rahimi further elaborated on how the analogical reasoning must proceed. “The Court‘s opinion also clarifies an important methodological point that bears repeating: Rather than asking whether a present-day gun regulation has a precise historical analogue, courts applying Bruen should conside[r] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Id. at 703-04 (Sotomayor, J., concurring) (quoting id. at 692 (majority opinion)). The point to remember, therefore, is “[h]istorical regulations reveal a principle, not a mold.” Id. at 740 (Barrett, J., concurring).
Finally, we must consider what history is relevant to the analogical inquiry. Bruen and Rahimi provide guidance on this front. Evidence from the founding era—or the years surrounding 1791, when the Second Amendment was first ratified—is most probative.5 See Bruen, 597 U.S. at 34. And this makes sense, because we know our objective is to determine what “scope” the Second
Evidence that predates the Second Amendment also bears on the analogical inquiry. In both Bruen and its precursor Heller, the Supreme Court emphasized we must consider “the historical background of the Second Amendment . . . because it has always been widely understood that the Second Amendment . . . codified a pre-existing right.” Heller, 554 U.S. at 592; Bruen, 597 U.S. at 20. “The Amendment ‘was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors.‘” Bruen, 597 U.S. at 20 (quoting Heller, 554 U.S. at 599); see id. (favorably citing Heller‘s reliance on “English history dating from the late 1600s, along with American colonial views leading up to the founding“). Of course, “[h]istorical evidence that long predates [1791] may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years.” Id. at 34; see id. at 35 (“English common-law practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers of our own Constitution.“).
Postenactment history demands similar care. See id. (“[W]e must also guard against giving postenactment history more weight than it can rightly bear.“). On one hand, “a regular course of practice’ can ‘liquidate & settle the meaning of disputed or indeterminate ‘terms & phrases’ in the Constitution,” and “where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.” Id. at 35-36 (first quoting Chiafalo v. Washington, 591 U.S. 578, 593 (2020); and then quoting NLRB v. Noel Canning, 573 U.S. 513, 572 (2014) (Scalia, J., concurring in the judgment)); see also id. at 35 (“It is true that in Heller we reiterated that evidence of how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century’ represented a ‘critical tool of constitutional interpretation.‘” (quoting Heller, 554 U.S. at 605)). On the other hand, history from many years after enactment provides mostly “secondary” evidence of original meaning. Id. at 37. And “to the extent later history contradicts what the text says, the text controls.”6 Id. at 36.
Keeping in mind the background law, we now describe the district court‘s order in detail. The district court concluded
To start, the court correctly began with the Bruen framework. At Bruen step one, the district court held “[t]he Second Amendment‘s plain text covers Harrison‘s conduct.” App. at 93. Mr. Harrison‘s conduct constituted “‘keeping’ a firearm,” the court reasoned, and he is among the “people” to whom the Second Amendment refers. App. at 93-94. The court supported this conclusion with language in Heller and Bruen that suggests the word “people” means “all Americans.” App. at 94 (quoting Heller, 554 U.S. at 580-81; Bruen, 597 U.S. at 70). And, as the court also recognized, nobody disputes Mr. “Harrison is an American citizen.” App. at 94.
The district court next turned to Bruen step two, which requires the government to “justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24; App. at 96. Here, the district court first concluded
The court then addressed the government‘s argument that
showed only “that the legislature may disarm those who have demonstrated a proclivity for violence’ through past violent, forceful, or threatening conduct.” App. at 117-18 (emphasis added) (quoting Kanter v. Barr, 919 F.3d 437, 454 (7th Cir. 2019) (Barrett, J., dissenting)); see also App. at 118 (“[T]he Constitution permitted the dispossession of persons who demonstrated that they would present a danger to the public if armed.” (emphasis added) (quoting Binderup v. Att‘y Gen. U.S. of Am., 836 F.3d 336, 369 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part), abrogated by Bruen, 597 U.S. 1, as recognized in Range, 124 F.4th at 225 (en banc))).7 The district court saw nothing
As relevant to this appeal, the court specifically addressed the government‘s proposed analogies to historical laws disarming the mentally ill, Catholics, and loyalists.8 The court reasoned “history and tradition would limit disarmament to dangerous lunatics,” not all “lunatics.” App. at 126. The court also concluded laws disarming the mentally ill could not be analogous to laws disarming non-intoxicated marijuana users. The government‘s argument—that historical laws disarming the mentally ill show legislatures can disarm those with “difficulty exercising self-control“—would “appear[] to have no limit,” as it would also apply to those with “autism, attention deficit disorder, and nicotine dependence.” App. at 126 (quoting App. at 64). Concerning laws disarming Catholics and loyalists, the court held the
Having recognized a tradition of disarming those who were violent, forceful, or threatening in the past, but not disarming those likely to pose a8
risk of danger in the future, the district court held
V
We endorse much of the district court‘s analysis and reasoning. At Bruen step one, we fully agree with the district court that the
A
At Bruen step one, we ask whether “the
The
We agree with the district court and Mr. Harrison. In Rocky Mountain Gun Owners, we concluded law-abiding 18- to 20-year-olds are part of the “people” protected by the
Today, we hold the “people” for purposes of the
As the district court recognized, a broad reading of “people” follows the Supreme Court‘s clear directive in its
As the government stresses, the Court has frequently referenced the
The government also relies on Justice Thomas‘s dissent in Voisine, which it calls the “clearest statement on the issue.” Op. Br. at 57. Justice Thomas wrote, “To be constitutional . . . a law that broadly frustrates an individual‘s right to keep and bear arms must target individuals who are beyond the scope of the ‘People’ protected by the
A contrary conclusion would defy law and logic. The
Next, restricting the
In reaching our conclusion, we find instructive how then-Judge Barrett explained the issue. “Some maintain that there are certain groups of people . . . who fall entirely outside the
We thus discern no error in the district court‘s conclusion at Bruen step one. Mr. Harrison is among the “people” protected by the
B
We now move to Bruen step two. Here, we engage in what the Supreme Court calls “analogical reasoning.” Bruen, 597 U.S. at 28-30. The government must marshal historical analogues to demonstrate
We first ask whether the statute “addresses a general societal problem that has persisted since the 18th century.” Id. at 26. Recall, if it does, then the lack of a “distinctly similar historical regulation . . . is relevant evidence”
We then move to the heart of Bruen step two. We ask: Has the government shown
1
a
Under Bruen step two, our threshold inquiry focuses on whether
What is the problem addressed by
with the potential for abuse.” App. at 98. Mr. Harrison offers an understanding similar to the district court‘s. See Ans. Br. at 31. The government, meanwhile, tells us
We agree with the district court that
Having determined
Consider how colonial New York and Virginia explained laws disarming intoxicated people. New York was concerned about “damages . . . frequently done on . . . New Year‘s days, by persons . . . with guns and other fire arms and being often intoxicated with liquor, [who] have not only put the inhabitants in great terror, but committed many mischiefs.” 5 Colonial Laws of New York, supra, at 244-45, ch. 1501 (1771 law) (capitalization modernized). Virginia expressed concern that alarms could not warn against Indian invasion, and the public would waste gunpowder,
This historical evidence concerns regulations disarming intoxicated people. Here, Mr. Harrison challenges
b
The parties seem to agree there is no historical regulation “distinctly similar” to
The government contends the lack of a “distinctly similar” historical regulation does not alone determine whether
The Supreme Court has never said the lack of a distinctly similar historical regulation is dispositive of the constitutional question. Rather, Bruen described this absence as “relevant evidence,” no more and no less. 597 U.S. at 26. And if there were any doubt after Bruen, the Court clarified its approach in Rahimi. There, the Court engaged in analogical reasoning without even discussing whether the challenged regulation addressed a persistent societal problem, or whether there was a distinctly similar historical regulation, even though the dissent invoked these concepts. See Rahimi, 602 U.S. at 693-700; id. at 750-51 (Thomas, J., dissenting); see also Diaz, 116 F.4th at 471 (stating Bruen and Rahimi “rejected” the argument
“[T]he absence of a distinctly similar historical regulation in the presented record, though undoubtedly relevant, can only prove so much.” Antonyuk v. James, 120 F.4th 941, 969 (2d Cir. 2024). When a regulation is absent from the historical record, perhaps the Founders believed it was
unconstitutional. But this is a limited heuristic. Holding it too closely would improperly “assume[] that founding-era legislatures maximally exercised their power to regulate” and “adopt[] a ‘use it or lose it’ view of legislative authority,” which “originalism does not require.” Rahimi, 602 U.S. at 739-40 (Barrett, J., concurring); Pitsilides v. Barr, 128 F.4th 203, 209 (3d Cir. 2025) (“[W]e remain vigilant not to ‘assume[] that founding-era legislatures maximally exercised their power to regulate’ conduct.” (quoting Rahimi, 602 U.S. at 740 (Barrett, J., concurring)). There are countless reasons the Founders may not have used a distinctly similar regulation to one used today: they were less concerned with the specific problem than we are, they prioritized legislation in other domains, logistics of enforcement were more tenuous, or non-constitutional policy concerns favored different paths. None of those reasons implicate the
2
We now move to the heart of Bruen step two. By examining historical analogues, we ask whether the “principles” in “our regulatory tradition” are “consistent with” Congress‘s decision to disarm non-intoxicated marijuana users under
a
Defending the constitutionality of
(quoting 2 Laws of the State of New York 617, ch. 12 (1886) (1788 law)); and a variety of secondary sources, Op. Br. at 43-44 (citing, e.g., Robert Dowlut, Comment,
The government then argues the mentally ill are “relevantly similar” to non-intoxicated marijuana users, such that laws disarming the former support laws disarming the latter. Op. Br. at 45-47. The government defends this analogy by insisting the Founders understood intoxication to be akin to temporary insanity, and “scientific studies have noted the link between mental illness and illicit drug use.” Op. Br. at 45 (citing sources). Ultimately, the government argues,
We agree with the district court and Mr. Harrison. On the record before us, the government has not shown laws disarming the mentally ill are relevant historical analogues. The government suggests laws disarming the mentally ill reveal a principle that legislatures may disarm those who are not “responsible,” “ordinary,” or able to exercise “self-control.” Op. Br. at 46 (quotations omitted). This analysis relies on constructs the Supreme Court has explicitly refused to endorse. In Rahimi, the Court “reject[ed] the Government‘s contention that Rahimi may be disarmed simply because he is not ‘responsible.‘” 602 U.S. at 701. Rahimi teaches that capacious and subjective factors—like whether a group is “responsible,” “ordinary,” or able to exercise “self-control“—are unacceptable grounds for stripping the
Further, the government‘s arguments linking the mentally ill and non-intoxicated marijuana users are unhelpful. For instance, even if the founders viewed intoxication as temporary insanity, as the government contends, we do not see how that would apply to non-intoxicated marijuana users. See United States v. Connelly, 117 F.4th 269, 276 (5th Cir. 2024) (“Repeat marijuana users . . . are of sound mind
b
We turn now to the second historical principle the government identifies to justify
We agree with the district court, but only in part. The district court correctly recognized that our Nation‘s tradition of firearm regulation supports disarming people who are dangerous. The district court was also right that past actions can serve as the basis to conclude an individual is dangerous. See Jackson, 138 F.4th at 1254 (explaining the defendant‘s “acts of domestic violence and his subsequent convictions demonstrate his ‘propensity for the use of physical violence against others,‘” so he “was disarmed for reasons consistent with this Nation‘s tradition of firearm regulation” (quoting United States v. Rogers, 371 F.3d 1225, 1229 (10th Cir. 2004))). But, as we will explain, the government has identified historical analogues that reveal another key principle underpinning our Nation‘s history of firearm regulation: legislatures may disarm those believed to pose a risk of future danger. We thus agree with the district court about one reason “why” our predecessors disarmed certain individuals—to prevent dangerous people from possessing arms—but disagree about “how” they made those determinations—they looked both backward and forward. See Bruen, 597 U.S. at 29 (instructing courts to focus on “how and why... regulations” disarm).
In recognizing a historical principle that legislatures may disarm those believed to pose a risk of future danger, we join many other circuit courts that have understood the history the same way. See Williams, 113 F.4th at 657 (“This historical study reveals that governments in England and colonial America long disarmed groups
Zherka v. Bondi, No. 22-1108-CV, 2025 WL 1618440, at *16 (2d Cir. June 9, 2025) (“[B]efore, during, and shortly after the Founding, legislative bodies regulated firearms by prohibiting their possession by categories of persons perceived to be dangerous.” (emphasis added)); see also Kanter, 919 F.3d at 454 (Barrett, J., dissenting) (“[T]he legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety. This is a category . . . [that] includes dangerous people who have not been convicted of felonies . . . .” (emphasis added)); Folajtar, 980 F.3d at 913 (Bibas, J., dissenting) (“Violence was one ground for fearing danger, as were disloyalty and rebellion.” (emphasis added)); Binderup, 836 F.3d at 368 (en banc) (Hardiman, J., concurring in part) (“[F]rom time immemorial, various jurisdictions recognizing a right to arms have . . . taken the step of forbidding suspect groups from having arms,’ and ‘American legislators at the time of the Bill of Rights seem to have been aware of this tradition.‘” (second alteration in original) (emphasis added) (quoting Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations, 60 Hastings L.J. 1339, 1360 (2009)))18; cf. United States v. Harris, No. 21-3031, 2025 WL 1922605 (3d Cir. July 14, 2025)
(concluding, in a challenge to the constitutionality of
i
At the outset, Mr. Harrison raises an argument rooted in Rahimi that we must address. According to Mr. Harrison, Rahimi already forbids disarmament based on legislative judgments about risk. He says Rahimi limited disarmament to situations involving “a judicial finding” that an individual poses a threat. Harrison Supp. Resp. Br. at 6 (emphasis added).
We disagree with Mr. Harrison‘s reading of Rahimi. In Rahimi, the Supreme Court recognized historical laws “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Rahimi, 602 U.S. at 698. To be sure, Rahimi concerned
Following Rahimi, we must answer in the first instance whether it is “consistent with the principles that underpin our regulatory tradition” for a legislature to disarm those it believes to pose a risk of future danger. Id. at 692. Turning to that question, we agree with the government that the answer is yes.
ii
Turning to the history, we begin in England.20 See Bruen, 597 U.S. at 20 (“The
the kingdom.” Militia Act of 1662, 13 & 14 Car. 2, c.3, § 13, 5 Statutes of the Realm 360 (capitalization and spelling modernized). This provides early evidence that individuals believed to pose a risk of danger may be disarmed. Because the Militia Act did not limit disarmament to those who had acted dangerously in the past, it outlines a more expansive principle of disarmament than the district court acknowledged.
Mr. Harrison argues the 1689 English Bill of Rights casts some doubt on the Militia Act‘s relevance. The English Bill of Rights—which contains the “predecessor to our Second Amendment,” Heller, 554 U.S. at 593—guaranteed “that the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.” 1 W. & M., ch. 2, § 7; see Bruen, 597 U.S. at 44 (calling the English Bill of Rights “a watershed“). Assuming the English Bill of Rights cabined the Militia Act, it does not seem to have abrogated the Militia Act. Compare Rahimi, 602 U.S. at 694 (suggesting the English Bill of Rights was a “rebuke” of some of the conduct enabled by the Militia Act), and Connelly, 117 F.4th at 278 (stating the English Bill of Rights “qualified” the Militia Act), with Joyce Lee Malcolm, To Keep and Bear Arms 123 (1994) (“As it turned out, the Militia Act of 1662 was to remain in force with only insignificant changes for many years to come.“), and Perez-Garcia, 96 F.4th at 1187 (“Use of the Militia Act provisions allowing search and seizure of weapons from disaffected persons ‘continued unabated’ after the adoption of the 1688-89 English Bill of Rights.” (quoting Diarmuid F. O‘Scannlain, Glorious Revolution to American Revolution: The English Origin of the Right to Keep and Bear Arms, 95 Notre Dame L. Rev. 397, 405 (2019))); see also Calendar of State Papers, Domestic Series, of the Reign of William III, 1 April, 1700-8 March, 1702, at 234 (1937) (showing, in 1701, William III instructed government officers to “search . . . for arms in the possession of any persons whom they judge dangerous, and seize such arms according to law“). We are in good company extracting relevant historical evidence from the Militia Act. See Williams, 113 F.4th at 651; Perez-Garcia, 96 F.4th at 1187; Jackson, 110 F.4th at 1126; see also Kanter, 929 F.3d at 456 (Barrett, J., dissenting); Folajtar, 980 F.3d at 914 (Bibas, J., dissenting).
Under the English Bill of Rights itself, legislatures could disarm those believed to
It appears Parliament disarmed Catholics because of a concern that Catholics—given their status as Catholics—posed a risk of danger. See Malcolm, supra, at 122 (“Prevention of a Catholic counter-revolution was of paramount concern.“); 4 William Blackstone, Commentaries on the Laws of England 54 (16th ed. 1825) (1769) (suggesting the English disarmed Catholics because they threatened “subversion of the civil government“); see also C. Kevin Marshall, Why Can‘t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol‘y 695, 723 (2009) (“In short, the stated principle supporting the disability was cause to fear that a person, although technically an English subject, was because of his beliefs effectively a resident enemy alien liable to violence against the king.“). Of course, as hardly requires mention, “not all . . . Catholics in England . . . were violent.” Jackson, 110 F.4th at 1128.
Again, we are not alone in using England‘s disarmament of Catholics to inform the original scope of the Second Amendment. See id. at 1126; Williams, 113 F.4th at 651; Duarte, 137 F.4th at 759 (en banc); Zherka, 2025 WL 1618440, at *13; Kanter, 919 F.3d at 457 (Barrett, J., dissenting) (“And—perhaps unsurprisingly because they were presumptively thought to pose a [] threat or terror—Parliament also disarmed Catholics.” (emphasis added)). “To be sure, the American experience does not map on exactly to the English one. . . . Still, the American version [of the right to arms] was derived from its English predecessor, which makes English practice instructive.” Kanter, 919 F.3d at 457 n.5 (Barrett, J., dissenting) (citation omitted).
In any event, “[w]hile many practices didn‘t survive the odyssey from the Old World to the New, the desire to promote peace by disarming dangerous groups arrived intact.” Williams, 113 F.4th at 652. First are three colonial laws disarming Catholics, continuing the English tradition apace. See 5 Statutes at Large of Pennsylvania from 1682 to 1801, at 627 (1898) (1759 law) (declaring “[t]hat all arms . . . any papist or reputed papist within this province hath or shall have in his house . . . shall be taken from such papist or reputed papist“); 7 William Waller Hening, The Statutes at Large: Being a Collection of all the Laws of Virginia 35-38 (1820) (1756 law); 52 Archives of Maryland 454 (1935) (1756 law).21 These colonies disarmed Catholics because they concluded “it is dangerous at this time to permit Papists to be armed.” 7 Hening, supra, at 35 (1756 law); see also Williams, 113 F.4th at 653 (concluding the historical record shows
“Pennsylvanians believed that such measures were absolutely necessary to protect against Catholic-led violence” (quotation omitted)). As in England, “not all Catholics” in the colonies “were violent.” Jackson, 110 F.4th at 1128. Other circuits have, again, found these laws instructive. Id. at 1126; Williams, 113 F.4th at 653; Perez-Garcia, 96 F.4th at 1187; Duarte, 137 F.4th at 759 (en banc); Zherka, 2025 WL 1618440, at *14.
Turning next to the revolution, the government highlights a tradition of disarming loyalists because they were believed to pose a risk of danger. The Continental Congress “recommended to the several [colonies], immediately to cause all persons to be disarmed within their respective colonies, who are notoriously disaffected to the cause of America.” 4 Journals of the Continental Congress 205 (1776). Many young states complied. 9 Statutes at Large of Pennsylvania from 1682 to 1801, at 348 (1903) (1779 law) (empowering officials “to disarm any person or persons who shall not have taken any oath or affirmation of allegiance“); 9 William Waller Hening, The Statutes at Large: Being a Collection of all the Laws of Virginia 281-82 (1821) (1777 law); 24 The State Records of North Carolina 89 (1905) (1777 law); Acts of the General Assembly of the State of New Jersey 90 (1777 law); 5 The Acts and Resolves, Public and Private, of the Province of Massachusetts Bay 479, ch. 21 (1886) (1776 law). Pennsylvania‘s law is especially probative as to the original scope of the Second Amendment, because Pennsylvania disarmed loyalists soon after it enshrined a “right to bear arms.” Pennsylvania Declaration of Rights, XIII (1776); see Williams, 113 F.4th at 654 n.11 (making this point). “[C]onfiscation of guns from those who refused to swear an oath of allegiance was meant to ‘deal with [a] potential threat . . . .‘” Kanter, 919 F.3d at 457 (Barrett, J., dissenting) (emphasis added) (quoting Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 506 (2004)); see also Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 265 (2020) (concluding “the justification” for these laws “was always that those being disarmed were dangerous“). But “not all early Americans who declined to swear an oath of loyalty . . . were violent.” Jackson, 110 F.4th at 1128.
We join others in using colonial laws disarming loyalists to discern our Nation‘s historical tradition of gun regulation. Id. at 1126-28; Williams, 113 F.4th at 653-54; Perez-Garcia, 96 F.4th at 1187; Duarte, 137 F.4th at 759 (en banc); Zherka, 2025 WL 1618440, at *15; see also Folajtar, 980 F.3d at 914 (Bibas, J., dissenting) (“Loyalists were potential rebels who were dangerous before they erupted into violence. . . . To ensure peace and safety, the colonies had to disarm them.” (emphasis added)); Binderup, 836 F.3d at 368 (en banc) (Hardiman, J., concurring in part) (“[A]lthough these Loyalists were neither criminals nor traitors, American legislators had determined that permitting these persons to keep and bear arms posed a potential danger.” (emphasis added) (quoting NRA v. ATF, 700 F.3d 185, 200 (5th Cir. 2012))).
Mr. Harrison does not dispute the existence of these English laws and colonial laws disarming Catholics and loyalists. At most, relying on a sentence in Rahimi, he contends disarming “political opponents” was “largely eliminated” in the colonies. Harrison Supp. Br. at 7 (quoting Rahimi, 602 U.S. at 694). We are not persuaded this gives us good reason to disregard the significant historical evidence marshaled by the government—particularly given the methodology Bruen and Rahimi prescribe.
In sum, “Colonial era laws thus demonstrate that England‘s history and tradition of disarming dangerous individuals continued across the Atlantic Ocean. Colonial
U.S. at 29. The colonial laws manifest a “why“—preventing dangerous people from possessing firearms—that aligns with the district court‘s reasoning. But these laws also reflect a “how“—legislatures disarming those believed to pose a risk of future danger—which is broader than what the district court allowed.
iii
As we have explained, the district court‘s conclusion—that legislatures may only disarm those who have acted dangerously in the past—did not fully reflect the historical laws in the record, which govern our inquiry at Bruen step two. See Bruen, 597 U.S. at 24, 28-29. One key reason the district court rejected a broader principle of disarmament is that it dismissed the relevance of laws disarming
now explain why these laws are probative historical analogues, and the district court‘s contrary view was mistaken.
First, the district court thought the Founders intended to repudiate the principle behind disarming Catholics and loyalists. According to the district court, James Madison critiqued “the European monarchical practice of being ‘afraid to trust the people with arms.‘” App. at 133 (quoting The Federalist No. 46 (James Madison)). That Madison critiqued European monarchies for restricting the right to bear arms, however, does not show the Founders sought to disclaim numerous laws passed in their own colonies.
Second, the district court reasoned, if laws disarming Catholics and loyalists could serve as historical analogues, “then the Second Amendment would provide virtually no limit on Congress‘s discretion.” App. at 134. The court doubted the Framers “incorporated such a trojan horse into the Second Amendment.” App. at 133; see Ans. Br. at 43 (similar).
Here, we must conclude the district court‘s reasoning departed from the methodology required by Bruen and affirmed in Rahimi. The Supreme Court has instructed, when it comes to interpreting the Second Amendment, historical evidence is our primary tool. The Court has directed us to examine “the historical background of the Second Amendment,” because “[t]he Amendment ‘was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors.‘” Bruen, 597 U.S. at 20 (quoting Heller, 554 U.S. at 592, 599). And the Court has stated we must “rel[y] on history to inform the meaning of [the] constitutional text“—including whether the Second Amendment repudiated some historical practice. Id. at 25; see also id. (concluding this historical methodology is “more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments‘” (quoting McDonald, 561 U.S. at 791 (plurality opinion))).
“To be sure, the historical understanding that legislatures have discretion to prohibit possession of firearms by a category of persons . . . who pose an unacceptable risk of dangerousness may allow greater regulation than would an approach that employs means-end scrutiny with respect to each individual person who is regulated.” Jackson, 110 F.4th at 1129. But we agree with our sister circuits that this “result is a product of the method of constitutional interpretation endorsed by Bruen.” Id.; see Duarte, 137 F.4th at 762 (en banc) (same). Thus, without historical evidence that the Founders repudiated the principle behind disarming Catholics and loyalists, the district court could not assume they did. See Zherka, 2025 WL 1618440, at *20 (“The test that Bruen requires us to apply uses history as its guide, not policy concerns.“).24
Fourth, the district court observed “these laws were largely passed either during the Seven Years War or... the Revolutionary War,” but “[t]imes of war tend to bring out the worst in governments, at least when it comes to civil liberties.” App. at 135. The court stated “we do not look to Korematsu to determine when the government may discriminate based on race.” App. at 135. We respectfully reject this reasoning. As the government persuasively argues, “[R]ights do not mysteriously disappear during times of war.” Op. Br. at 36 (citing Ex Parte Milligan, 71 U.S. 2, 120-21 (1866)); see Milligan, 71 U.S. at 120-21 (“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all
circumstances.“). We denounce Korematsu because it “was gravely wrong the day it was decided,” not because it was decided during war. Trump v. Hawaii, 585 U.S. 667, 710 (2018). The Supreme Court has not called for an exception to this rule—that wartime law is still law—in theFifth, as to laws disarming Catholics, the district court added “it appears that only two American colonies” ever enacted them, making any purported tradition questionable. App. at 135–36 (citing Bruen, 597 U.S. at 46 (“[W]e doubt that three colonial regulations could suffice to show a tradition of public-carry regulation.“)). The court also noted “at the time these provisions were enacted, the operative rights-protecting document was the English Bill of Rights,” which meant Catholics were “not protected by the right to armed self-defense” in the first place. App. at 136.
We need not decide whether “three colonial regulations” can ever establish a historical tradition. Bruen, 597 U.S. at 46; see Rahimi, 602 U.S. at 745–46 (Jackson, J., concurring) (identifying the “unresolved question[]” of “how many analogues add up to a tradition“). This is because the few colonial laws disarming Catholics were not isolated. They joined a larger body of laws revealing a singular principle: the founding generation and their English ancestors permitted legislatures to disarm those believed to pose a risk of future danger. If we refused to group such similar lawstogether, then we could never find a tradition of anything. See Rahimi, 602 U.S. at 704 (Sotomayor, J., concurring) (suggesting courts should not “pick[] off the Government‘s historical sources one by one, viewing any basis for distinction as fatal“); Perez-Garcia, 96 F.4th at 1191 (“[The defendants‘] divide-and-conquer approach to the historical evidence misses the forest for the trees.“). As for the district court‘s statement that the English Bill of Rights excluded Catholics, we are not sure why that makes the colonial disarmament of Catholics less probative. Rather, it appears to only deepen the historical tradition of disarming those believed to pose a risk of danger. Bruen, 597 U.S. at 34.
Sixth, and finally, the district court reasoned laws disarming Catholics and loyalists “were justified on the fear that the covered groups were likely to wage active war . . . . This is a radically different justification than the justification for
With the guidance of Rahimi, we land closer to the government. Determining the level of generality at which to define historical principles is no easy task. Concurring in Rahimi, Justice Jackson observed the Court has not “adequately clarified” “the level of generality at which a court evaluates [historical] sources.” 602 U.S. at 745 (Jackson, J., concurring). Justice Barrett concluded “harder level-of-generality problems can await another day.” Id. at 740 (Barrett, J., concurring). And Justice Kavanaugh similarly acknowledged the “important question[]” of “the level of generality at which to define a historical practice.” Id. at 724 n.4 (Kavanaugh, J., concurring) (discussing post-ratification history); see also United States v. Morton, 123 F.4th 492, 498 n.2 (6th Cir. 2024) (asking the Supreme Court to clarify the level of generality at which to understand “laws that forbade Catholics, seditious libelers, Native Americans, loyalists, individuals who had engaged in ‘actual rebellion,’ and Black people from possessing firearms“).
But Rahimi suggests the government‘s proposed level of generality is correct. For one, Rahimi repeated multiple times that historical laws need not be “twin[s]” of modern laws. Rahimi, 602 U.S. at 692, 701.
The specific mode of reasoning used in Rahimi—the way the Court generalized from historical laws in that case—is instructive and further supports the government‘s position. Rahimi upheld a law that disarms individuals based on their risk of committing family violence. See Rahimi, 602 U.S. at 684–85 (citing
The government asks us to do something similar. Laws disarming Catholics and loyalists were focused on war-related violence, like going armed laws were focused on public disorder. We are comfortable generalizing from the former, just as Rahimi generalized from the latter. We thus conclude laws disarming Catholics and loyalists reveal a tradition of disarming those believed to pose a risk of danger, regardless of whether the perceived danger is related to waging war.
We acknowledge the Fifth Circuit, in holding
ultimately found laws disarming Catholics and loyalists did not reveal a general principle that legislatures may disarm those believed to be dangerous. See id. The dissent finds the Fifth Circuit‘s view persuasive. See Dissent at 6 (“I think the Fifth Circuit [in Connelly] got it right in holding that
But in our view, the Fifth Circuit‘s narrow reading failed to heed the Supreme Court‘s instruction that “a ‘historical twin’ is not required.” Rahimi, 602 U.S. at 701 (quoting Bruen, 597 U.S. at 30); see also id. (“For its part, the Fifth Circuit . . . read Bruen to require a ‘historical twin’ rather than a ‘historical analogue.‘” (quoting Bruen, 597 U.S. at 30)). Likewise, we conclude the Fifth Circuit did not interpret laws disarming Catholics and loyalists with the same level of generality that Rahimi used to interpret going armed laws. See id.
Historical laws disarming Catholics and loyalists may be imperfect sources, but we find they are instructive under the analysis Bruen and Rahimi require.
VI
We now explain why remand is necessary. Pursuant to Rahimi, the government has articulated a “principle[] that underpin[s] our regulatory tradition” that may be “consistent with” the challenged regulation. Id. at692. 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.
The record suggests the parties attempted to engage in this inquiry in the district court. The government asserted it is “dangerous” for “habitual drug users” like Mr. Harrison “to possess deadly firearms.” App. at 64 (quoting Yancey, 621 F.3d at 685). In support, the government highlighted opinions from other courts collecting “academic research confirm[ing] the connection between drug use and violent crime.” Yancey, 621 F.3d at 686; see App. at 63–64 (citing sources). Though he did not point to contrary evidence, Mr. Harrison insisted the government‘s assertions about drug users were “highly debatable.” App. at 85. The district court recognized the government was attempting to defend the constitutionality of the statute as applied by showing drug users pose a risk of danger. App. at 124 (acknowledging “the United States points out” its cited cases “are backed up by social science, statistics, and predictions about future crime“). But relying on its understanding of the history, the district court determined itwas legally irrelevant whether
Contrary to the district court‘s view, this inquiry is legally relevant—and critical to the methodology announced in Bruen and clarified in Rahimi. The Supreme Court has emphasized the
Accordingly, in this case, the district court should have inquired into whether the government could justify its assertion that non-intoxicated marijuana users pose a risk of danger. See Bruen, 597 U.S. at 24 (placing burden on government at Bruen step two). We find instructive that the Eighth Circuit has called for a similar inquiry in a similar context. In Worth v. Jacobson, the court considered a
The parties ask us to engage in this inquiry in the first instance on appeal. The government maintains “for those who unlawfully use marijuana, like Mr. Harrison, research ‘amply demonstrate[s] a connection between marijuana use specifically and violence.‘” Op. Br. at 21 (alteration in original) (quoting United States v. Carter, 750 F.3d 462, 467 (4th Cir. 2014)) (also citing studies). Mr. Harrison contends “marijuana users are not in a class of dangerous people.” Ans. Br. at 40 (citing additional studies).
But the prudent course is to remand for the district court to make the determination under the correct view of the law, particularly since factfinding may be required.27 United States v. Hasan, 609 F.3d 1121, 1129 (10th Cir. 2010) (“When the court of appeals notices a legal error, it is not
ordinarily entitled to weigh the facts itself and reach a new conclusion; instead, it must remand to the district court for it to make a new determination under the correct law.“); Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1180 n.1 (10th Cir. 2010) (“It is not within the province of this court to find facts on appeal . . . .“). The Third Circuit recently ordered a similar remand in a
* * *
Ultimately, we agree with much of the district court‘s analysis: Mr. Harrison is among “the People” protected by the
VII
We REVERSE and REMAND for further proceedings consistent with this opinion.
No. 23-6028, United States v. Jared Michael Harrison
KELLY, Circuit Judge, concurring in part and dissenting in part.
I concur in the court‘s holdings that Mr. Harrison is properly mounting an as-applied challenge to
I. Section 922(g)(3)‘s disarmament of marijuana users regardless of their present intoxication is inconsistent with the historical record.
Beginning with the historical record, the societal problem posed by “the dangerous mixture of guns and intoxicants” is not a novel one. Ct. Op. at 31–34. The court recognizes this and thoroughly recounts the history of intoxication laws from the Founding.1 See id. Suffice it to say that
generations addressed that societal problem by restricting when and how firearms could be used, not by taking them away.” (quotations omitted)); United States v. Connelly, 117 F.4th 269, 280–82 (5th Cir. 2024) (explaining that historical intoxication laws support only “banning the carry of firearms while actively intoxicated“).
By disarming those who may use drugs from time to time regardless of their present intoxication,
II. Historical laws disarming Catholics and loyalists do not justify
Rather than attempt to square
To be sure, dangerousness is a “touchstone” of
The elephant in the room here is that marijuana, despite being a Schedule I controlled substance under federal law, is “legal” to some extent in most states. See State Medical Cannabis Laws, Nat‘l Conf. of State Legislatures (June 27, 2025), https://www.ncsl.org/health/state-medical-cannabis-laws. The regulatory landscape in this circuit alone is a patchwork. See id. The district court aptly observed that “[t]hereare likely nearly 400,000 Oklahomans who use marijuana under state-law authorization.” App. at 126. Mr. Harrison himself even told the officer who pulled him over that he was on his way to work at a medical marijuana dispensary. Id. at 87. I do not read Bruen to endorse analogical reasoning which effectively writes Congress a “blank check” to disarm so many Americans, many of whom may be under the assumption that marijuana laws have been reformed. 597 U.S. at 30; see also United States v. Harris, 144 F.4th 154, 177 (3d Cir. 2025) (Ambro, J., concurring in part and dissenting in part) (warning against reasoning that “authorizes legislatures to suspend the constitutional rights of so many for such common behavior“).
III. The court‘s remand allows the government to assert untimely arguments.
Finally, the scope of the court‘s direction to the district court on remand is problematic. The court remands for the district court to “inquire into whether non-intoxicated marijuana users pose a risk of future danger.” Ct. Op. at 68. How the government will make this showing on remand remains to be seen. See id. at 73 n.27. Regardless, this case has never been about the future dangers posed by Mr. Harrison‘s marijuana use—but the court‘s remand makes it so.
This opens the door to factfinding on a forfeited issue. Mr. Harrison does not dispute that he is a marijuana user.2 Oral Arg. at 18:10–18:23. And the government has
prosecuted Mr. Harrison from the position that, to obtain a conviction under
The same is true about evidence which the government might introduce to show that non-intoxicated marijuana users categorically pose a risk of future danger. At
In sum, though I commend the scholarship of the court‘s opinion, I cannot agree with its reading of the historical record. I think the Fifth Circuit got it right in holding that
Notes
The Federal Grand Jury charges: COUNT 1. (Possession of a Firearm by a Prohibited Person) On or about May 20, 2022, in the Western District of Oklahoma, JARED MICHAEL HARRISON, with knowledge that he was an unlawful user of marijuana, a controlled substance as defined in Title 21, United States Code, Section 802, knowingly possessed a firearm, to wit: a Rossi, model M68, .38 caliber revolver, bearing serial number AA474050, which was in or affecting interstate commerce in that said firearm had crossed state lines to reach the state of Oklahoma. All in violation of Title 18, United States Code, Section 922(g)(3), the penalty for which is found at Title 18, United States Code, Section 924(a)(2).
FORFEITURE. The allegation contained in this Indictment is hereby re-alleged and incorporated for the purpose of alleging forfeiture. Upon conviction of the offense alleged in Count 1 of this Indictment, JARED MICHAEL HARRISON shall forfeit to the United States any and all firearms and ammunition involved in the commission of the offense. The property subject to forfeiture includes, but is not limited to: 1. a Rossi, model M68, .38 caliber revolver, bearing serial number AA474050; and 2. any and all ammunition and magazines not otherwise specified. All pursuant to Title 18, United States Code, Section 924(d) and Title 28, United States Code, Section 2461(c).
App. at 8-9.
We resolve this case according to evidence surrounding the founding era, which the Supreme Court has made clear is probative. Neither party argues Reconstruction-era history changes the applicable historical principles in any meaningful way. Given this party presentation, we leave the relevance of Reconstruction for another day. See id. at 38 (“We need not address this issue today.“); People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 1008 (10th Cir. 2017) (“If it is not necessary to decide more, it is necessary not to decide more.” (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring)). This court or the Supreme Court will likely address the relevance of the Reconstruction era when a case requires it.
Yet the Supreme Court has instructed that, when it comes to the Second Amendment, history is at the heart of constitutional adjudication. Given these dynamics, we must be mindful of our limitations as we attempt to implement the prescribed methodology. See United States v. Daniels, 77 F.4th 337, 359-60 (5th Cir. 2023), vacated, 144 S. Ct. 2707 (2024) (Higginson, J., concurring) (“[C]ourts are laboring to give meaning to the Bruen requirement of ‘historical inquiry.‘“); United States v. Perez-Garcia, 96 F.4th 1166, 1174 (9th Cir. 2024) (recognizing “extensive historical analysis” depends on “research resources” and “amici historians“). To that end, in this opinion, we have leaned on primary sources, the work of professional historians, widely cited legal scholarship, and the decisions of other courts that have studied the historical evidence to the best of their ability.
Most relevant here, in Massachusetts, Samual Adams proposed “that the said Constitution be never construed to authorize Congress to . . . prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” 2 Bernard Schwartz, The Bill of Rights: A Documentary History 681 (1971) (emphasis added). And the Pennsylvania Minority proposed an addition stating “the people have a right to bear arms . . . and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.” Id. at 665 (emphasis added); Kanter, 919 F.3d at 455 (Barrett, J., dissenting) (emphasizing same). Neither proposal conditioned disarmament on an individual‘s prior dangerous conduct. Indeed, the Pennsylvania proposal expressly permitted disarmament independent of prior conduct. It sanctioned disarmament “for crimes committed, or real danger of public injury.” Schwartz, supra, at 665 (emphasis added); see Williams, 113 F.4th at 655 (“Thus, in Pennsylvania, as in the colonies and England before that, governing officials were aware that some individuals were too dangerous to possess firearms.“).
“While the proposing delegates failed to get these amendments into state or federal constitutions, these provisions still reveal a great deal about the Second Amendment.” Williams, 113 F.3d at 655. These proposals are probative because the “Amendment codified a pre-existing and widely understood right, [so] it‘s unlikely that ‘different people of the founding period had vastly different conceptions’ of that right‘s scope.” Id. at 655 (quoting Heller, 554 U.S. at 604-05); see also Binderup, 836 F.3d at 367-68 (en banc) (Hardiman, J., concurring in part) (“[I]t is telling that in the crucibles of the ratifying conventions, such public declarations of the scope of the right to keep and bear arms did not provoke any apparent disagreement.“); Kanter, 913 F.3d at 455 (Barrett, J., dissenting) (explaining “these proposals may indicate some common if imprecise understanding at the Founding regarding the boundaries of a right to keep and bear arms” (quoting Marshall, supra, at 713)). Contra App. at 115-17 (the district court dismissing these analogues).
In any event, laws disarming Catholics and loyalists would be legally problematic because of how we understand other constitutional provisions, not the Second Amendment. The laws can therefore reveal the original understanding of the Second Amendment. See Jackson, 110 F.4th at 1127 (“While some of these categorical prohibitions of course would be impermissible today under other constitutional provisions, they are relevant here in determining the historical understanding of the right to keep and bear arms.“); Williams, 113 F.4th at 656 (“Classifying people as dangerous simply because of their race or religion was wrong from the beginning and unconstitutional from 1868. Nevertheless, these pre-Fourteenth Amendment laws provide insight into how early Americans conceived of the right to bear arms embodied in the Second Amendment.“); United States v. Duarte, 137 F.4th 743, 760 (9th Cir. 2025) (en banc) (“[M]any of these laws would likely be unconstitutional today under other parts of the Constitution. But these laws are reflective of American history and tradition.“); Zherka v. Bondi, No. 22-1108-CV, 2025 WL 1618440, at *13 (2d Cir. June 9, 2025) (“Many of those laws are offensive to contemporary moral sensitivities, or might well be deemed unconstitutional today on First and Fourteenth Amendment grounds. They are, however, relevant to the Second Amendment historical analysis that Bruen requires we conduct.“). Going armed laws prohibited “fighting in public,” “arm[ing] oneself ‘to the Terror of the People,‘” and “riding or going armed . . . [to] terrify[] the good people of the land.” Rahimi, 602 U.S. at 697 (first, third, and fourth alterations in original) (emphasis added) (first quoting Theodore Barlow, The Justice of Peace: A Treatise Containing the Power and Duty of that Magistrate 11 (1745); and then quoting 4 William Blackstone, Commentaries on the Laws of England 149 (16th ed. 1825) (1769)). “Such conduct disrupted the ‘public order’ . . . .” Id. (quoting State v. Huntly, 25 N.C. 418, 421 (1843)). Justice Thomas‘s dissent emphasized the public nature of going armed laws in contending they presented no analogy for
As we have already explained, the government may not relitigate whether Mr. Harrison was in fact intoxicated. See supra at 12 (rejecting as “waived” the “government‘s effort to raise this new argument in its supplemental briefing on appeal“). We remand only for the district court to inquire into “whether non-intoxicated marijuana users pose a risk of future danger.” Supra at 68. That inquiry is legally relevant, as we have explained, but was prematurely halted due to the district court‘s misreading of the historical record. See supra at 69–71. Still, the dissent concludes remand “opens the door to factfinding on a forfeited issue.” Dissent at 4. But in the district court, the government explained a “user” does not need to be “high all the time.” App. at 47. And in discussing the purpose of Section 922(g)(3), the government identified Congress‘s intent to prohibit firearm possession by “drug abusers,” “unlawful users,” “habitual drug users,” “narcotics addicts,” and other “presumptively risky people.” App. at 63–64. These terms encompass non-intoxicated individuals. Context confirms this understanding. The government prosecuted this case from the outset under a theory of non-intoxication. The government‘s late-stage “new argument,” supra at 12 (emphasis added)—that perhaps Mr. Harrison was actually intoxicated at the time of the offense—is “new” precisely because the government had been arguing under an assumption of non-intoxication all along.