September 5, 2025 – The U.S. Court of Appeals for the Tenth Circuit recently issued its opinion in United States v. Harrison, addressing a Second Amendment challenge to 18 U.S.C. § 922(g)(3), which prohibits firearm possession by “unlawful users of controlled substances.” While marijuana use is legal in many states, it remains illegal under federal law, so firearm possession by “users” of marijuana is still prohibited.
The decision arose from the criminal indictment of the defendant, who was pulled over for running a red light. The arresting police officer smelled marijuana, searched the car, and discovered a loaded revolver. The defendant admitted to having used marijuana in the past, but was not accused of being intoxicated at the time of his arrest. After being indicted for violating Section 922(g)(3), he moved to dismiss the indictment, arguing that the law is unconstitutional pursuant to the Supreme Court’s historical analysis set forth in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. The U.S. District Court for the Western District of Oklahoma agreed with the defendant and dismissed the indictment, holding that the “historical tradition of firearm regulation is limited to disarming those who have acted dangerously in the past.”
In a split decision by a three judge panel, the Tenth Circuit reversed, finding that the District Court had not considered the Supreme Court’s subsequently issued decision in United States v. Rahimi, which clarified that the appropriate historical tradition analysis “involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” It also held that “disarming those believed to pose a risk of future danger is consistent with a “principle that underpin[s] our regulatory tradition.” In doing so, it noted that legislatures have historically disarmed individuals who pose a risk of future danger, citing examples of historical laws that disarmed Catholics, English loyalists, and others seen as threats to public safety. The appellate court further explained that to sustain a violation of Section 922(g)(3) as applied to a non-intoxicated marijuana user, the government must prove that such individuals pose a risk of future danger.
The majority held that the government needs to make a factual showing that “non-intoxicated marijuana users pose a risk of future danger” to justify limiting their Second Amendment rights. Because that evidence was missing, the court of appeals remanded the case to the district court for further proceedings.
According to the Tenth Circuit’s ruling, the government will need evidence that all marijuana users, even when not under the influence, are categorically dangerous. For now, the case is headed back to the trial court, where both sides will have a chance to build a more detailed record and the government will need to show that marijuana users present the kinds of risks that historically justified the restriction of firearm rights.
Relatedly, in Florida Commissioner of Agriculture v. ATF, the U.S. Court of Appeals for the Eleventh Circuit reached a different conclusion on the constitutionality of Section 922(g)(3). In that case, medical marijuana users in Florida challenged the constitutionality of Section 922(g)(3), arguing the statute is an unlawful restriction on their Second Amendment rights. After the district court found Section 922(g)(3) constitutional, the Eleventh Circuit reversed, finding that the government had not met its burden under Bruen to justify disarming the plaintiffs who use marijuana in compliance with state law, but have not been convicted of a felony or been shown to be dangerous. Allowing the plaintiffs’ Second Amendment challenge to proceed, the Eleventh Circuit offered a different interpretation than the Tenth Circuit on the historical analysis applicable to firearm regulations in the context of marijuana use. The difference between the two decisions suggests a tension in the federal appeals courts that could ultimately require action by the Supreme Court.
Renzulli Law Firm will continue to monitor these lawsuits and related litigation challenging the constitutionality of gun control laws. If you have any questions about laws regulating firearms and ammunition, please contact John F. Renzulli or Christopher Renzulli.