Petition for Writ of Certiorari — Erik Matthew Harris, Petitioner v. United States
Supreme Court briefSep 26, 2025
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No. ______
In the
Supreme Court of the United States
__________________________________________________________________
ERIK HARRIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
________________
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit
________________
PETITION FOR WRIT OF CERTIORARI
________________
ERIN E. MURPHY
CLEMENT & MURPHY,
PLLC
706 Duke Street
Alexandria, VA 22314
ELISA A. LONG
RENEE D. PIETROPAOLO
Counsel of Record
STACIE M. FAHSEL
GABRIELLE LEE
FEDERAL PUBLIC
DEFENDER FOR THE
WESTERN DISTRICT
OF PENNSYLVANIA
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
Renee_Pietropaolo@fd.org
(412) 644-6565
Counsel for Petitioner
September 26, 2025
QUESTIONS PRESENTED
18 U.S.C. § 922(g)(3) prohibits firearm possession
by an “unlawful user of” “any controlled substance.”
The statute does not define the phrase “unlawful user”
or specify what nexus, if any, the government must
show between drug use and firearm possession.
Petitioner Erik Harris, a 21-year-old, first-generation
college student working part-time for a Christian
nonprofit, had no prior arrests or history of violence
when he purchased three guns in early 2019. He was
later convicted under § 922(g)(3) based solely on his
police interview admission to smoking marijuana once
every three days. Nothing in the record indicates that
Harris was intoxicated when he purchased the
firearms or at any time that he carried a firearm. The
questions presented are:
I.
Whether 18 U.S.C. § 922(g)(3), the federal statute
that prohibits possession of firearms by a person
who “is an unlawful user of or addicted to any
controlled substance,” violates the Second
Amendment as applied to an individual who
sometimes used marijuana but was not
intoxicated at the time of the possession.
II. Whether 18 U.S.C. § 922(g)(3)’s prohibition on
firearm possession by “an unlawful user” of “any
controlled substance” is unconstitutionally vague.
ii
PARTIES TO THE PROCEEDING
Petitioner Erik Harris was the defendant in the
district court and appellant below.
Respondent United States of America was the
plaintiff in the district court and appellee below.
iii
RELATED PROCEEDINGS
United States District Court (W.D. Pa.):
United States v. Harris, No. 2:19-cr-00313
(May 7, 2021)
United States Court of Appeals (3d Cir.):
United States
(July 14, 2025)
v.
Harris,
No.
21-3031
iv
TABLE OF CONTENTS
Questions Presented .................................................... i
Parties to the Proceeding ........................................... ii
Statement of Related Proceedings ............................ iii
Table of Authorities ................................................ viiii
Petition for Writ of Certiorari .................................... 1
Opinions Below ........................................................... 3
Jurisdiction ................................................................. 3
Constitutional and Statutory Provisions Involved ... 3
Statement of the Case ................................................ 3
A. Legal Background ........................................ 3
B. Factual Background ..................................... 6
Reasons for Granting the Petition ........................... 12
I.
The decision below defies this Court’s Second
Amendment precedents and deepens a circuit
split .................................................................... 14
A. The courts of appeals are hopelessly
divided over the constitutionality of
§ 922(g)(3) as applied to non-violent
adults who use marijuana, and over
whether Congress may categorically
disarm entire classes of people based on
presumptions of dangerousness ................. 14
B. The decision below is wrong....................... 18
II. This Court should determine whether 18
U.S.C. § 922(g)(3) is void for vagueness ........... 21
A.
The courts of appeals have responded to
the vagueness concerns raised by
§ 922(g)(3) with a patchwork of atextual,
v
amorphous requirements for a temporal
nexus between the drug use and firearm
possession ................................................... 23
B. The decision below is wrong....................... 29
III. The questions presented are important and
this case is the ideal vehicle to decide them ..... 30
A. This case is the best vehicle for resolving
both questions presented ........................... 31
B. The constitutionality of § 922(g)(3) as
applied to adult marijuana users is
exceptionally
important
given
marijuana’s widespread—and, in many
states, legal—recreational use ................... 33
C. The court’s decision will have significant
and immediate practical consequences ..... 35
Conclusion ................................................................. 36
Appendix
Appendix A
Opinion, United States Court of Appeals for
the Third Circuit, United States v. Harris,
No. 21-3031 (July 14, 2025) ..................... App. 1a
Appendix B
Judgment, United States Court of Appeals for
the Third Circuit, United States v. Harris, No.
21-3031 (July 14, 2025) .......................... App. 50a
Appendix C
Order, United States District Court for the
Western District of Pennsylvania, United
States v. Harris, No. 19-cr-00313
(May 4, 2021) ......................................... App. 51a
vi
Appendix D
Judgment, United States District Court for
the Western District of Pennsylvania, United
States v. Harris, No. 19-cr-00313
(Oct. 27, 2021) ......................................... App. 53a
Appendix E
Constitutional and Statutory
Provisions................................................ App. 62a
vii
TABLE OF AUTHORITIES
Cases
Connally v. General Constr. Co.,
269 U.S. 385 (1926) ................................................... 6
Corley v. United States,
556 U.S. 303 (2009) ................................................. 26
District of Columbia v. Heller,
554 U.S. 570 (2008) .............................................. 3, 4
Johnson v. United States,
576 U.S. 591 (2015) ......................................... 5, 6, 21
Kolender v. Lawson,
461 U.S. 352 (1983) ........................................... 21, 30
N.Y. State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022) ....................................... 1, 4, 10, 21
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) ................................................. 24
Sessions v. Dimaya,
584 U.S. 148 (2018) ................................................... 6
Smith v. Goguen,
415 U.S. 566 (1974) ................................................. 21
Smith v. United States,
508 U.S. 223 (1993) ................................................. 24
United States v. Augustin,
376 F.3d 135 (3d Cir. 2004) ........................ 11, 25, 27
United States v. Boslau,
632 F.3d 422 (8th Cir. 2011)............................. 26, 28
United States v. Bowens,
938 F.3d 790 (6th Cir. 2019)................................... 25
viii
United States v. Carnes,
22 F.4th 743 (8th Cir. 2022) ............................. 25, 28
United States v. Clanton,
515 F. App’x 826 (11th Cir. 2013) .......................... 28
United States v. Connelly,
117 F.4th 269 (5th Cir. 2024) .......... 15, 19, 25-27, 33
United States v. Cooper,
127 F.4th 1092 (8th Cir. 2025) .......................... 15-16
United States v. Daniels,
124 F.4th 967 (5th Cir. 2025) ........................... 15, 19
United States v. Davis,
588 U.S. 445 (2019) ................................................... 6
United States v. Espinoza-Roque,
26 F.4th 32 (1st Cir. 2022)...................................... 27
United States v. Harrison,
___ F.4th ___, 2025 WL 2452293
(10th Cir. 2025) ....................................................... 17
United States v. Herrera,
313 F.3d 882 (5th Cir. 2002)................................... 30
United States v. Nevarez,
251 F.3d 28 (2d Cir. 2001) ................................. 27-28
United States v. Ocegueda,
564 F.2d 1363 (9th Cir. 1977)................................. 26
United States v. Patterson,
431 F.3d 832 (5th Cir. 2005)................................... 26
United States v. Perez,
145 F.4th 800 (8th Cir. 2025) ................................. 16
United States v. Rahimi,
602 U.S. 680 (2024) ............................... 4-5, 11, 18-20
ix
United States v. Seiwert,
___ F.4th ___, 2025 WL 2627468
(7th Cir. 2025) ................................................... 17, 19
United States v Turnbull,
349 F.3d 558 (8th Cir. 2003)................................... 27
United States v. VanOchten,
150 F.4th 552 (6th Cir. 2025) ............................ 16-17
United States v. Williams,
553 U.S. 285 (2008) ................................................. 25
United States v. Williams,
113 F.4th 637 (6th Cir. 2024) ................................. 16
United States v. Yancey,
621 F.3d 681 (7th Cir. 2010)................................... 26
United States v. Yepez,
456 F. App’x 52 (2d Cir. 2012) ................................ 28
Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc.,
455 U.S. 489 (1982) ........................................ 1, 21-22
Worth v. Jacobson,
108 F.4th 677 (8th Cir. 2024) ................................. 17
Statutes and Regulations
27 C.F.R. § 478.11 ................................................. 25-26
18 U.S.C. § 921(a)(15) ................................................ 24
18 U.S.C. § 922(a)(6) .................................................... 7
18 U.S.C. § 922(g) ...................................................... 22
18 U.S.C. § 922(g)(2) .................................................. 24
18 U.S.C. § 922(g)(3) ............. 1-2, 7-8, 10-25, 27-33, 35
18 U.S.C. § 922(g)(4) .................................................. 24
x
18 U.S.C. § 922(g)(6) .................................................. 24
18 U.S.C. § 922(g)(8)(C)(i) ........................................... 5
18 U.S.C. § 924(a)(8) .................................................. 32
18 U.S.C. § 3142(b) ...................................................... 8
18 U.S.C. § 3143(a) ...................................................... 8
21 U.S.C. § 802(1) ...................................................... 24
35 P.S. § 780-113(a)(31) ............................................. 32
35 P.S. § 780-113(g) ................................................... 32
Other Authorities
Oxford English Dictionary (2d ed. 1989) ............. 24-25
Pet. for Cert., United States v. Hemani,
No. 24-1234 (U.S. June 2, 2025) ...... 2, 12, 15, 32, 35
U.S. Const. amend. II ......................................... 3-4, 15
U.S. Const. amend. V .................................................. 5
PETITION FOR WRIT OF CERTIORARI
Section 922(g)(3) bars an “unlawful user of” any
controlled substance from possessing firearms without
defining the term “unlawful user” or explaining what
nexus, if any, must exist between the drug use and
firearm possession. See 18 U.S.C. § 922(g)(3). Erik
Harris, a twenty-one-year-old African American
college student with no history of violence or prior
arrests, was convicted under § 922(g)(3) based solely
on his admission to smoking marijuana once every
three days. The government below did not allege or try
to establish that Harris was intoxicated when he
purchased the firearms or at any time while carrying
firearms.
When the government chooses to regulate armsbearing
conduct,
the
Second
Amendment
presumptively protects that conduct and the
government bears the burden of proving that its
regulation is “consistent with this Nation’s historical
tradition of firearm regulation.” N.Y. State Rifle &
Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). And when
the regulation restricts a fundamental right and
exposes violators to severe criminal penalties, the
Constitution demands that Congress speak with
clarity. See Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982).
In the decision below, the court of appeals
determined that 18 U.S.C. § 922(g)(3)—at least as
applied in some cases—is consistent with the Nation’s
purported historical tradition of disarming “the
dangerously drunk and dangerously mentally ill,” and
is not unconstitutionally vague as applied to an adult
who “routinely smok[es] marijuana.” App.2a, 5a.
2
As the government has observed, the Third
Circuit’s decision forms part of a clear and intractable
circuit conflict on the constitutionality of § 922(g)(3)
under the Second Amendment that necessitates this
Court’s review. See U.S. Pet. 7, 24, Reply 7, United
States v. Hemani (No. 24-1234). Indeed, disarming
Harris would be unconstitutional in at least the Fifth
and Eighth Circuits. The decision of the court of
appeals, however, permits stripping Second
Amendment rights from non-violent adults who
recreationally use marijuana based on loose predictive
judgments about their likelihood to pose a risk of
danger if armed. Taken to its logical conclusion, the
majority’s view would sanction a law disarming the
millions of ordinary Americans who regularly drink
wine with dinner or enjoy a beer after work. This
Court’s intervention is needed.
The government urges this Court to review the
Second Amendment question in a case it hand-picked
with highly unusual facts—facts the government
evidently views as favorable to its position. If the
Court is going to review the question presented (and
petitioner agrees that it should), then it would be
better served by doing so in a case that cleanly
presents an as-applied challenge by an individual who
smoked marijuana recreationally and was not
otherwise engaged in more serious, independent
criminal conduct. This petition not only presents such
a case but also offers the Court the opportunity to
decide whether § 922(g)(3) is unconstitutionally
vague—a question not presented in Hemani. The two
questions are inextricably intertwined; resolution of
one necessarily informs, and may dictate, resolution of
the other. Accordingly, the Court should grant this
3
case instead of, or in addition to, Hemani. At
minimum, this Court should hold the petition pending
resolution of Hemani or any other case the Court may
grant presenting the same question(s).
OPINIONS BELOW
The opinion of the court of appeals, including a
dissenting opinion by Judge Thomas Ambro, is
reported at 144 F.4th 154. App.1a-49a.
JURISDICTION
The judgment of the court of appeals was entered
July 14, 2025. This Court has jurisdiction under 28
U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The relevant constitutional and
provisions are reproduced at App.62a.
statutory
STATEMENT OF THE CASE
A. Legal Background
1. In its seminal decision in District of Columbia
v. Heller, this Court held that there is “no doubt …
that the Second Amendment confer[s] an individual
right to keep and bear arms.” 554 U.S. 570, 595 (2008).
While the Court acknowledged that the right is not
“unlimited,” it looked to historical restrictions on
firearm possession to inform its analysis of the
constitutionality of the law at hand. Id. at 626-27, 63134. But the Court left a full-throated exposition of that
historical analysis for another day.
4
Over the next decade, lower courts “coalesced
around a ‘two-step’ framework for analyzing Second
Amendment challenges that combines history with
means-end scrutiny.” New York State Rifle & Pistol,
Ass’n, Inc. v. Bruen, 597 U.S. 1, 17 (2022). In Bruen,
this Court rejected “that judicial deference to
legislative interest balancing,” explaining that the
Second Amendment “‘is the very product of an interest
balancing by the people,’” and it is that “balance—
struck by the traditions of the American people—that
demands our unqualified deference.” Id. at 26 (quoting
Heller, 554 U.S. at 635). The Court laid out a more
robust constitutional framework steeped in “the
Nation’s historical tradition of firearm regulation.” Id.
at 24. Under that approach, if the regulated conduct
is covered by the plain text of the Second Amendment,
then it is presumptively protected, and the burden
shifts to the government to justify its regulation. Id.
To do so, the government must identify historical
firearm restrictions that are analogous to the modern
challenged regulation in their “how and why”—i.e., the
“modern and historical regulations” must “impose a
comparable burden on the right of armed self-defense”
that “is comparably justified.” Id. at 24, 29.
Two years later, this Court provided additional
guidance on how to implement Bruen’s methodology in
United States v. Rahimi, 602 U.S. 680 (2024). Rahimi
confirmed Bruen’s historical tradition test: “[W]hen a
firearm regulation is challenged under the Second
Amendment, the Government must show that the
restriction ‘is consistent with the Nation’s historical
tradition of firearm regulation.’” 602 U.S. at 689
(quoting Bruen, 597 U.S. at 24). The Court clarified
that the modern law must be “consistent with the
5
principles that underpin our regulatory tradition.” Id.
at 692. But the “central” considerations in the
“relevantly similar” inquiry remain “[w]hy and how
the [challenged] regulation burdens the [Second
Amendment] right.” Id. at 692. In other words, the
focus remains on whether the regulation “impos[es]
similar restrictions for similar reasons.” Id. at 692.
Applying that framework, this Court held that 18
U.S.C. § 922(g)(8)(C)(i) is constitutionally sound, as it
is grounded in a historical tradition of temporarily
disarming individuals who have been found by a court
to pose “a credible threat to the physical safety of
another.” Id. at 702.
In short, as exemplified in Rahimi, Bruen tasks
courts with conducting a categorical comparison of the
mechanics of the challenged provision and the
government’s historical analogues to assess whether
the challenged law passes constitutional muster. In
applying that methodology, Justice Barrett cautioned,
“a court must be careful not to read a principle at such
a high level of generality that it waters down the
right.” Rahimi, 602 U.S. at 740 (Barrett, J.,
concurring).
2. The Constitution provides that “[n]o person
shall … be deprived of life, liberty, or property,
without due process of law.” U.S. Const. amend. V.
This Court has repeatedly recognized that the
government “violates this guarantee by taking away
someone’s life, liberty, or property under a criminal
law so vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless
that it invites arbitrary enforcement.” Johnson v.
United States, 576 U.S. 591, 595 (2015). The
6
prohibition on vague criminal statutes is a “‘wellrecognized requirement, consonant alike with
ordinary notions of fair play and the settled rules of
law,’ and a statute that flouts it ‘violates the first
essential of due process.’” Id. at 595-96 (quoting
Connally v. General Constr. Co., 269 U.S. 385, 391
(1926)). As this Court has explained, the vagueness
doctrine “is a corollary of the separation of powers—
requiring that Congress, rather than the executive or
judicial branch, define what conduct is sanctionable
and what is not.” Sessions v. Dimaya, 584 U.S. 148,
156 (2018).
Applying the vagueness doctrine, this Court has
held that federal criminal laws must “give ordinary
people fair warning about what the law demands of
them” and avoid leaving them “with no sure way to
know what consequences will attach to their conduct.”
United States v. Davis, 588 U.S. 445, 448 (2019). When
a law fails to provide such notice, courts must “treat
the law as a nullity and invite Congress to try again.”
Id.
B. Factual Background
1. In 2019, Erik Harris, then 21 years old, was a
first-generation college student employed part-time by
a nonprofit Christian organization and had neither a
history of violence nor any prior arrests. See C.A. App.
43, 61, 224-26, 231. See also App.46a. He purchased
three guns in February and March of that year,
answering “no” on a federal form asking whether he
was a user of or addicted to marijuana. He regularly
smoked marijuana during this period. App.46a.
2. Five days after he bought the second gun,
Harris and his childhood friend, Jaemere Scott,
7
celebrated Scott’s mother’s birthday at Scott’s home
and later at a bar. App.46a. Scott lived across the
street from Harris’s girlfriend. C.A. 3 App. 67. After
that night, one of Harris’s handguns was found in
Scott’s possession. C.A. App. 161, 172.
3. When Harris and Scott arrived at the bar, Scott
asked Harris whether he had his gun on him, and
Harris replied “No, I don’t.” C.A. 3 App. 37. Although
Harris thought he had left the gun in his car, it was
not there when he checked after leaving the bar. Id. at
38. Back at Scott’s house, and with Scott’s help, Harris
searched the car, Scott’s house, and his girlfriend’s
house. Id. at 38-39. The next morning, he again
checked his car, as well as the homes of two friends,
before returning to the bar to search. Id. at 39-40.
Coming up empty, Harris promptly contacted the
police and reported the gun stolen. App.46a-47a.
4. The police ultimately found the gun with Scott,
a convicted felon. Suspecting Harris had purchased
the gun for Scott, they interviewed Harris. During the
interview, Harris denied doing so but admitted to
frequently smoking marijuana. App.46a-47a.
5. Based entirely on Harris’s police interview, the
government charged him with three counts of
possessing firearms as an unlawful user of a controlled
substance, in violation of 18 U.S.C. § 922(g)(3).
App.3a. In addition, the indictment charged him with
three counts of knowingly making a false statement
that he was not an “unlawful user” of marijuana in
connection with the firearms purchases, in violation of
18 U.S.C. § 922(a)(6). Id. The indictment recited no
other allegations regarding Harris’s drug use. C.A.
App. 25-27.
8
6. The district court determined that Harris did
not pose a danger to the community: Harris was
released pretrial on unsecured bond, and at
sentencing, bond was continued to permit his selfsurrender. D. Dkt. 14. See 18 U.S.C. § 3142(b)
(authorizing pretrial release unless, inter alia, it “will
endanger the safety of any other person or the
community”); id., § 3143(a) (authorizing release based
on judicial finding by clear and convincing evidence
the person is not likely to pose a danger).
7. Harris moved to dismiss the indictment,
arguing that § 922(g)(3) violates the Second
Amendment as applied to him. His initial motion
raised these arguments in the context of the meansend scrutiny analysis that Bruen ultimately rejected.
C.A. App. 32-51, 134-46, 148-72. He also argued that
the statute was unconstitutionally vague, both facially
and as applied, in violation of the Fifth Amendment
and the separation of powers. Id. Finally, he attacked
the false statement charges as rising or falling with
the constitutionality of § 922(g)(3). If § 922(g)(3) is
unconstitutional as applied to him, then his statement
as to drug use was immaterial as it could not have
affected the sale. It was also not knowingly made. See
C.A. App. 50-51, 134-35, 145-46, 155; 3d Cir. Doc. 43
at 27-29 & Doc. 77.
8. The government asked the court to resolve the
motion on the “undisputed facts.” C.A. App. 161-62,
167. The parties agreed that the substance involved
was marijuana and that Harris was not an addict, but
used marijuana recreationally every three days at the
relevant time. C.A. App. 52, 61, 161. The government
did not claim that Harris was intoxicated while
9
carrying the firearm. Indeed, at the hearing on the
motion to dismiss, the government summarized the
“undisputed facts”: when Harris purchased the
firearms, “he was smoking marijuana every three
days” and had been using marijuana recreationally for
about six years. C.A. App. 161. It added that after
Harris smoked one night, his gun “ended up in the
possession of his friend.” C.A. App. 161, 171-72.1
9. The district court summarily denied Harris’s
motion. App.54a. Harris then entered a conditional
guilty plea to all six counts, preserving his right to
appeal the issues raised in the motion to dismiss. C.A.
App. 209; App.3a.
10. The district court sentenced Harris to six
months’ incarceration and three years’ supervised
release. D. Ct. Dkt. 103.
11. The court of appeals affirmed in a divided
opinion. Starting with the threshold textual inquiry,
the court easily found that the Second Amendment
presumptively protects Harris’s conduct. “Drug users
1 Editorializing, the majority below said that Harris “went out
partying with one of his new guns,” “got ‘really drunk’ and high
and, in the revelry, lost his new gun.” App.2a. The record does
not support those claims. See App.46a-47a (Ambro, J.,
dissenting). Indeed, the government did not suggest that Harris
may have been intoxicated while carrying a firearm at the
birthday celebration until more than two years after the hearing
on the motion to dismiss. See 3d Cir. Doc. 55 at 4 n.3 (Aug. 7,
2023). See also 3d Cir. Doc. 57 at 1-2 n.1 (Aug. 21, 2023) (objecting
to government’s belated claim). See, generally, United States v.
Harrison, ___ F.4th ___, 2025 WL 2452293, *4 (10th Cir. 2025)
(rejecting government’s attempt to inject new factual claim—
that the record permitted an inference Harrison was
intoxicated—in supplemental briefing).
10
who are adult citizens are among ‘the people’” and the
charge at issue punishes Harris for “‘for quintessential
Second Amendment conduct: possessing a handgun.’”
App.4a. And it correctly explained that under Bruen
and Rahimi the government bears the burden to show
that a modern law is consistent with this Nation’s
historical tradition of firearm regulation. App.4a
(quoting Bruen, 597 U.S. at 26).
Turning to the historical-tradition inquiry, the
majority found that historical regulations addressing
public intoxication and mental illness imposed a
comparable burden for comparable reasons to
§ 922(g)(3), at least as applied in some circumstances.
App.5a-6a. From the historical regulations, the
majority discerned a principle of confining and
thereby disarming persons who pose a risk of physical
danger to others if armed, that is, disarming people
“based on a predictive judgment of danger.” App.16a,
18a, 19a, 22a. In the majority’s view, § 922(g)(3) is
constitutional as applied to a “drug user[] who would
pose a risk of danger to others if armed”—and a judge
may make such a predictive determination even if the
individual never “harmed someone, threatened harm,
or otherwise acted dangerously” and even if he never
possessed a firearm while intoxicated. App.13a, 22a.
See also App.32a (concluding § 922(g)(3) “reflects the
type of common-sense prophylactic judgment that the
Second
Amendment
permits”)
(Krause,
J.,
concurring). The majority remanded for the district
court to apply its new rule to Harris’s case—that is, to
determine “how Harris’s drug use affected his mental
state and riskiness.” App.21a-22a
11
The court of appeals also rejected Harris’s
vagueness challenge. App.22a-24a. Although the court
acknowledged that “there will be borderline cases”—
and that the “exact boundaries of ‘unlawful user’ are
debatable”—it concluded that Harris’s “habitual
marijuana smoking” fell within the text of § 922(g)(3).
App.24a. In so holding, the court relied on its
precedent interpreting § 922(g)(3) to require a
defendant to “‘have engaged in regular use [of drugs]
over a period of time proximate to or contemporaneous
with the possession of the firearm.’” App.24a (quoting
United States v. Augustin, 376 F.3d 135, 139 (3d Cir.
2004)). Leaving “closer calls” for “[f]uture cases,” the
court of appeals determined that the statute was not
vague as applied to Harris. App.25a.
Judge Ambro dissented on Second Amendment
grounds. He criticized the majority’s “amorphous
holding”—which allows the government to disarm
citizens based on a speculative “increased risk of
dangerousness”—as lacking any historical analogue.
App.40a, 47a-49a (Ambro, J., dissenting). Whereas
“Founding-era laws targeted dangerous behavior that
followed from intoxication,” App.38a, the majority
extended disarmament to an individual who is
“plainly [] not dangerous, so long as his drug use
increases the chance that he could act dangerously.”
App.40a. That leap, Judge Ambro warned, both flouts
precedent and creates a circuit split. App.47a-49a.
Under the dissent’s historically grounded approach—
consistent with Bruen and Rahimi—only “those who
pose a ‘credible threat to the physical safety of others’
because of their intoxication may be disarmed.”
App.38a-39a, 40a (quoting Rahimi, 602 U.S. at 693,
700).
12
REASONS FOR GRANTING THE PETITION
This case presents two important and inextricably
linked questions warranting review. First, as the
government has conceded elsewhere, the circuits are
hopelessly divided on whether 18 U.S.C. § 922(g)(3),
which disarms an “unlawful user” of any controlled
substance, is consistent with the Nation’s historical
tradition of firearms regulation. See U.S. Pet. 7, 24,
United States v. Hemani (No. 24-1234). Second,
because the statute neither defines “unlawful user”
nor identifies the required nexus, if any, between drug
use and firearm possession, this case also presents the
question whether § 922(g)(3) is unconstitutionally
vague. Courts have long acknowledged the vagueness
concerns raised by § 922(g)(3)—a statute that burdens
a fundamental Constitutional right and exposes
defendants to fifteen years’ imprisonment—but have
responded by inventing a patchwork of nebulous
temporal nexus requirements. These two questions
cannot be meaningfully separated; resolving whether
the statute may constitutionally disarm “unlawful
users” necessarily requires resolving whether the
statute provides constitutionally adequate notice of
who qualifies as such.
The government agrees that there is “a clear
circuit conflict” over § 922(g)(3)’s constitutionality
under the Second Amendment that warrants this
Court’s immediate attention. See U.S. Pet. 24-25,
Reply 7-8, Hemani, supra. The decision below not only
deepens that conflict but is egregiously wrong. The
court contemplates disarming a sober citizen who is
not engaged in threatening or violent behavior and
has no prior “history of violence or threatening
13
behavior” based solely on predictive judgments about
the individual’s likelihood to pose a risk of danger if
armed. See App.16a-17a, 18a-19a, 22a; App.34a
(Ambro, J., dissenting). No other court sets the
threshold for stripping citizens of their Second
Amendment rights this low. See App.34a (Ambro, J.,
dissenting). The court’s test cannot be reconciled with
Rahimi or Bruen, and it threatens to embroil the lower
courts in the judge-empowering interest-balancing
Bruen rejected.
Harris’s case presents a far better vehicle to
review § 922(g)(3)’s constitutionality than the
government’s cherry-picked alternative because it
involves application of § 922(g)(3) to an adult who
admitted smoking marijuana recreationally and was
not otherwise engaged in more serious, independent
criminal conduct. Although Harris and Hemani are in
the same procedural posture, only Harris offers a
clean vehicle—unencumbered by Hemani’s more
aggravated facts involving cocaine use and drug
dealing. This clarity matters. The instant case allows
the Court to focus directly on the government’s
justification for disarming recreational marijuana
users—a question of growing national importance, as
roughly 74% of Americans live in states where
marijuana is legal in some form.
Further, this case is an ideal vehicle because it
presents the additional preserved question of whether
§ 922(g)(3) is unconstitutionally vague. Lower courts
have repeatedly recognized that § 922(g)(3) raises
vagueness concerns, attempting—but failing—to craft
a clear and consistent limiting construction that
provides the notice the Constitution requires. (And
14
that is even before considering the additional layer of
conflicting interpretations to ensure the statute’s
constitutionality under the Second Amendment.)
Given that the federal courts cannot settle on what the
law means, it is unreasonable to expect that ordinary
citizens have notice of what conduct the law prohibits.
The result is a fluid, unpredictable statute that
welcomes arbitrary or discriminatory enforcement by
the government while also undermining separation-ofpowers principles by leaving it to police, prosecutors,
and judges to define the scope of criminal liability.
Indeed, Harris’s case exemplifies this risk.
Accordingly, if the Court considers the
constitutionality of § 922(g)(3) under the Second
Amendment (as it should), the Court should have the
benefit of arguments regarding the statute’s
vagueness. Of the pending petitions that raise the
constitutionality of § 922(g)(3), only this case asks the
Court to consider both of those important and
entangled questions.
I.
The decision below defies this Court’s
Second
Amendment
precedents
and
deepens a circuit split.
A. The courts of appeals are hopelessly
divided over the constitutionality of
§ 922(g)(3) as applied to non-violent
adults who use marijuana, and over
whether Congress may categorically
disarm entire classes of people based on
presumptions of dangerousness.
As the government has explained elsewhere, the
decision below entrenches “a clear circuit conflict”
15
regarding the constitutionality of § 922(g)(3) under the
Second Amendment that requires this Court’s
immediate review. See U.S. Pet. 24-25, Reply 1, 7-8,
Hemani (No. 24-1234). Indeed, by setting out a test
based solely on predictive judgments about a “risk” of
danger, the decision below charts a new path that no
other court has taken.
1. The Fifth Circuit has held that § 922(g)(3) is
unconstitutional as applied to a person based on her
“habitual or occasional drug use” when there is no
evidence that the person “was presently or even
recently engaged in unlawful drug use” at the time of
the firearms possession. United States v. Daniels, 124
F.4th 967, 970 (5th Cir. 2025) (quoting United States
v. Connelly, 117 F.4th 269 (5th Cir. 2024)). Although
“history and tradition may support some limits on a
presently intoxicated person’s right to carry a
weapon,” they do not support “‘disarming a sober
citizen based exclusively on his past drug usage.’” Id.
at 971, 976; see also U.S. Pet. 25, Reply 6, Hemani,
supra.
2. By contrast, the Eighth Circuit has held that
§ 922(g)(3) is constitutional only as applied to someone
whose drug use causes him to “act like someone who
is ‘both mentally ill and dangerous’” by “induc[ing]
terror,” or “pos[ing] a credible threat to the physical
safety of others” with a firearm. United States v.
Cooper, 127 F.4th 1092, 1096 (8th Cir. 2025) (citations
omitted). The Eighth Circuit concluded that the
historical record supports an individualized, not a
categorical, determination: “Nothing in our tradition
allows disarmament simply because [an individual]
belongs to a category of people, drug users, that
16
Congress has categorically deemed dangerous.” Id. at
1096. Accordingly, the court requires a nexus between
the individual’s drug use and the conduct resembling
that of someone who is dangerously mentally ill: The
proper question is whether a citizen’s marijuana use
“caused him to act ‘mentally ill and dangerous,’” i.e.,
“in an outwardly erratic or aggressive manner …
reasonably perceived as disturbing or dangerous to
others.” United States v. Perez, 145 F.4th 800, 807 (8th
Cir. 2025). The court does not require such conduct to
have occurred contemporaneously with the carry of
firearms. Id. at 806.
3. The Sixth Circuit has adopted an entirely
different
approach,
authorizing
categorical
disarmament based on class membership while
simultaneously placing the burden on the accused to
rebut the presumption of dangerousness. United
States v. VanOchten, 150 F.4th 552 (6th Cir. 2025).
The Sixth Circuit has held that history and tradition
allow Congress to use “class-based legislation” to
disarm “whole classes” of individuals “it believes are
dangerous, so long as members of that class have an
opportunity to show they aren’t.” Id. at 558 (quoting
United States v. Williams, 113 F.4th 637, 649-50 (6th
Cir. 2024)). According to the court, Congress judged
drug users as a class to be “presumptively dangerous”
and used class-based legislation in § 922(g)(3) to
disarm them. Id.
Notably, the Sixth Circuit does not require any
nexus between a person’s membership in a class and
his “dangerousness.” That is, the government need not
show a person charged with § 922(g)(3) is dangerous
because of his drug use. See VanOchten, 150 F.4th at
17
560-62. Rather, the government can disarm illegal
drug users based entirely on unrelated individual
characteristics like criminal record or other judicially
noticeable information. Id.
4. The Tenth Circuit has offered yet another test.
The court relied on historical laws disarming
Catholics and Loyalists to discern a principle that
legislatures can disarm entire categories of people
believed to pose a risk of future danger. United States
v. Harrison, ___ F.4th ___, 2025 WL 2452293, *1, *16,
*24 (10th Cir. 2025). The court cautioned against
deferring to legislative judgments that “a category of
people [are] dangerous” as that would “subjugate the
right to bear arms.” Id. at *25 (quoting Worth v.
Jacobson, 108 F.4th 677, 694 (8th Cir. 2024)). Instead,
in determining whether Congress’s decision to disarm
non-intoxicated marijuana users under § 922(g)(3) is
consistent with the Second Amendment, the relevant
question is “whether the government [can] justify its
assertion that non-intoxicated marijuana users pose a
risk of danger.” Harrison, 2025 WL 2452293, *25; see
id. at *28 (Kelly, J., concurring in part).
5. Most recently, the Seventh Circuit held that
§ 922(g)(3) is constitutional as applied to an individual
whose cognitive abilities are presently and
persistently impaired—specifically, a person with a
20-year history of heroin and crack addiction, who was
under the influence when the firearms were seized,
having used crack just hours earlier while awaiting
another delivery from his dealer. United States v.
Seiwert, ___ F.4th ___, 2025 WL 2627468, *1, *8 & n.
4 (7th Cir. 2025).
18
In sum, at least six circuit courts have considered
Second Amendment challenges to § 922(g)(3), and
each announced a different test. Although the
government identified the same set of historical
regulations in each case, the courts have disagreed on
which of those regulations, if any, are proper
analogues to § 922(g)(3). Moreover, jurists disagree
about the principle to draw from the historical
analogues. The multi-circuit split is highly unlikely to
resolve by itself, and this Court’s guidance is sorely
needed.
B. The decision below is wrong.
The court of appeals misinterpreted the historical
record to draw a broad principle of disarming citizens
who are not presently dangerous—and who have no
history of dangerous or violent conduct—based on
predictive judgments about a citizen’s likelihood to
pose a risk of danger if armed. But the majority drew
its “principle” from the historical record “at such a
high a level of generality that it waters down the
right.” Rahimi, 602 U.S. at 740 (Barrett, J.,
concurring). In addition to deepening the clear circuit
conflict, the decision below is flawed.
The majority determined that historical
regulations addressing public intoxication and mental
illness were analogous to § 922(g)(3), at least as
applied in some circumstances: “Both the
drunkenness
and
lunacy
laws
temporarily
incapacitated people based on the judgment that their
impaired mental state posed a risk to others.”
App.14a-15a. Even assuming those laws reflected an
enduring historical tradition, they regulated the
conduct of individuals who were presently under the
19
influence of alcohol (or presently experiencing a
disordered mental state), not those who simply
admitted to frequent casual drinking. If those laws
could support § 922(g)(3), they would likewise justify
a law disarming anyone who drinks wine with dinner
three nights each week. Given that the majority’s
purported “principle” would support banning gun
possession by the millions of ordinary Americans who
have “multiple alcoholic drinks a week,” it is a sure
sign that the court stretched the analogical reasoning
too far. Connelly, 117 F.4th at 282.
The court also relied on “surety regimes” that it
described as empowering magistrates to make
drunkards give security for peace and good behavior
or be imprisoned. App.8a. But those laws simply
required individuals to post sureties after public
drunkenness (and authorized jail time for those who
did not comply); the laws said nothing about firearms
violence by common drunkards. By contrast, the
surety laws discussed in Rahimi did “target[] the
misuse of firearms.” Rahimi, 602 U.S. at 696. See
Seiwert, 2025 WL 2627468, *11 (concluding that
surety and going-armed law are a mismatch as applied
to drug users who do not engage in terrifying conduct).
As the Fifth Circuit observed, while early Americans
“consumed copious amounts of alcohol,” no Founding
era laws “barred gun possession by regular drinkers.”
Connelly, 117 F.4th at 279-80. And none disarmed
“ordinary citizens for drunkenness, even if their
intoxication was routine.” Daniels, 124 F.4th at 974.
Nonetheless, from the historical regulations, the
majority drew a broad principle of disarming
citizens—whether or not they are experiencing an
20
impaired mental state that causes them to pose a risk
to others—“based on a predictive judgment” that they
are likely to become impaired and in their impaired
state pose a risk to others. See App.18a, 19a, 21a, 22a.
As the majority put it, “[a] drug user need not have
harmed someone, threatened harm, or otherwise acted
dangerously to justify disarmament.” App.22a.
Rather, according to the court, the relevant question
is only whether an individual’s “frequent marijuana
use increased the risk that [the individual] could not
handle guns safely.” App.20a. That sweeping principle
is untethered from the historical record. Notably, the
surety regime on which this Court relied in Rahimi
required an objective, individualized determination
that an individual posed a credible threat to the
physical safety of another. Rahimi, 602 U.S. at 695,
702; see also id. at 711 (Gorsuch, J., concurring). And
even then, the disarmament could last only as long as
that determination remained in place. That is a far cry
from § 922(g)(3), which, in the court of appeals’ view,
authorizes disarmament based on subjective
predictive judgments that a person poses a risk of
future danger if armed based on past drug use.
As the dissent explained, whereas “Founding-era
laws targeted dangerous behavior that followed from
intoxication,” the majority allowed disarmament of
those who are “plainly [] not dangerous, so long as
[their] drug use increases the chance that he could act
dangerously.” App.38a-40a (Ambro, J., dissenting).
The dissent emphasized that “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
21
risk.” App.43a. In short, “[b]y 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.” Id.
The Third Circuit’s approach runs headlong into
the exact problem Bruen sought to solve—avoiding an
“interest-balancing
inquiry”
that
gives
the
government the power to decide “on a case-by-case
basis whether the right is really worth insisting upon.”
597 U.S. at 22-23. Review is warranted to correct the
methodology employed by the court of appeals and to
ensure that Americans are not disarmed based on a
subjective, predictive assessment of risk that has no
basis in this Nation’s history and tradition.
II. This Court should determine whether 18
U.S.C. § 922(g)(3) is void for vagueness.
The Constitution does not tolerate vague laws. A
statute is void for vagueness if it “fails to give ordinary
people fair notice of the conduct it punishes, or [is] so
standardless that it invites arbitrary enforcement.”
Johnson v. United States, 576 U.S. 591, 595 (2015). By
requiring “a legislature [to] establish minimal
guidelines to govern law enforcement,” the doctrine
protects against “a standardless sweep” enabling
executive and judicial officials “to pursue their
personal predilections.” Kolender v. Lawson, 461 U.S.
352, 358 (1983) (quoting Smith v. Goguen, 415 U.S.
566, 574-75 (1974)).
“The degree of vagueness that the Constitution
tolerates … depends in part on the nature of the
22
enactment.” Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). The
Court has consistently demanded greater clarity for
laws imposing criminal penalties and laws restricting
fundamental rights. Id. at 499-50. Section 922(g)(3)
implicates both concerns: it threatens to inhibit an
individual’s fundamental Second Amendment right to
possess a handgun and it imposes severe criminal
penalties, including up to fifteen years of
imprisonment.
Section 922(g) lists nine categories of persons
barred from possessing firearms. In eight, Congress
specified a triggering event or objective criteria—such
as felony convictions, mental health commitments, or
immigration status—to identify who falls within the
prohibition. Section 922(g)(3) is the outlier. It
prohibits possession by “any person who is an
unlawful user” of “any controlled substance,” but it
neither defines that amorphous phrase nor identifies
any nexus between drug use and firearm possession.
That is, the statutory text does not indicate when or
how a person becomes (or ceases to be) an unlawful
user—e.g., how frequently or for how long he must
use—or how close in time or place the drug use must
be to the firearm possession.
Lacking any legislatively defined objective
criteria, the courts for decades have struggled to give
content to the statute’s terms. In defining “unlawful
user,” some courts invoke nebulous formulations such
as “regular,” “prolonged,” or “habitual” drug use,
without specifying duration. Others require drug use
“with regularity, over an extended period of time.” All
impose some judicially-created temporal nexus. Some
23
require drug use “at or about the time” of firearm
possession; others permit an inference of current use
from a conviction for use or possession of a controlled
substance within the past year. The result is not a
discernable rule, but judicial improvisation. The
absence of clear and objective standards does not allow
ordinary citizens to determine when their
fundamental constitutional right to bear arms is
restricted and invites arbitrary enforcement.
The statute is incurably vague as applied to Mr.
Harris—an adult who recreationally used marijuana,
a substance approximately fifty percent of U.S. adults
have at least sampled. Mr. Harris had no fair notice
that he could be deemed an “unlawful user” of
marijuana on each of three days in 2019 even if he did
not use, was not under the influence of, and did not
possess marijuana on those days. He was swept up in
the executive’s arbitrary enforcement of a farreaching, indeterminate statute. This Court’s
intervention is urgently needed to ensure that
§ 922(g)(3) does not continue to ensnare ordinary
Americans in felony liability.
A. The courts of appeals have responded to
the vagueness concerns raised by
§ 922(g)(3) with a patchwork of atextual,
amorphous requirements for a temporal
nexus between the drug use and firearm
possession.
Section 922(g)(3) is unlike every other subsection
of § 922(g): it contains no clear and objectively
24
ascertainable standards triggering disarmament.2
Section 922(g)(3) prohibits firearm possession by “any
person who is an unlawful user” of “any controlled
substance” without defining “unlawful user” or
identifying the nexus, if any, between use and
possession required to trigger the ban. The statute
gives no hint as to when a person becomes an unlawful
user or ceases to be a user, how frequently or for how
long he must use, or how close in time or place the use
must be to the possession.
“The plainness or ambiguity of statutory language
is determined by reference to the language itself, the
specific context in which that language is used, and
the broader context of the statute as a whole.”
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
Here, the statute reaches anyone “who is an unlawful
user of or addicted to any controlled substance.” 18
U.S.C. § 922(g)(3). “[A]ddict” is a defined term
meaning “any individual who habitually uses any
narcotic drug so as to endanger the public morals,
health, safety, or welfare, or who is so far addicted . . .
as to have lost the power of self-control….” 21 U.S.C.
§ 802(1). “Unlawful user,” however, is not defined.
Although courts generally default to a phrase’s
common usage, see Smith v. United States, 508 U.S.
223, 237-38 (1993), dictionary definitions of “user” as
“one who uses” provide no boundaries. User (def. 1a),
2 Compare 18 U.S.C. § 922(g)(2) (disarming “fugitive from
justice,” a term defined in the chapter’s definitional section at
§ 921(a)(15); § 922(g)(4) (disarming any person who has been
“adjudicated as a mental defective or committed to a mental
institution”); § 922(g)(6) (disarming those who have been
“discharged from the Armed Forces under dishonorable
conditions”).
25
Oxford English Dictionary (2d ed. 1989). So courts
have engaged instead in “wholly subjective judgments
without statutory definitions, narrowing context, or
settled legal meanings” to determine what conduct
falls under § 922(g)(3)’s purview. United States v.
Williams, 553 U.S. 285, 306 (2008).
Faced with Congress’s failure to define “unlawful
user,” the Third Circuit concluded that a single use
does not make one an “unlawful user[;]” rather, “use of
drugs with some regularity is required.” United States
v. Augustin, 376 F.3d 135, 139 & n.6 (3d Cir. 2004). In
reaching that conclusion, the court departed from the
statutory text by first identifying a definition for a
term in the statute—“user”—and then extrapolating
from that definition an additional requirement—
regularity—that Congress did not include: “A ‘user’ is
a ‘person who takes narcotic, etc., drugs,’ implying
some regularity of use. User (def. 1b), Oxford English
Dictionary (2d ed. 1989).” See App.24a.
The Sixth Circuit added an additional qualifier,
requiring not just regular use, but use “over an
extended period of time, and contemporaneously with
[the] purchase or possession of a firearm.” United
States v. Bowens, 938 F.3d 790, 793 (6th Cir. 2019).
The Eighth Circuit, by contrast, explicitly rejected a
qualification “that would require evidence of use over
an extended period.” United States v. Carnes, 22 F.4th
743, 748-49 (8th Cir. 2022).
The Fifth Circuit observed with alarm that “an
inference of ‘current use’ can be drawn even from ‘a
conviction for use or possession of a controlled
substance within the past year.’” Connelly, 117 F.4th
26
at 282 (quoting 27 C.F.R. § 478.11); see United States
v. Patterson, 431 F.3d 832, 838 (5th Cir. 2005).
The Seventh Circuit deemed the phrase “unlawful
user” synonymous with “habitual user,” without
differentiating a habitual user from an addict under
the statute. United States v. Yancey, 621 F.3d 681,
684-85 (7th Cir. 2010); see also United States v.
Boslau, 632 F.3d 422, 430 (8th Cir. 2011) (approving
an instruction defining an “unlawful user” as one “who
uses a controlled substance and has lost the power of
self-control with reference to [its] use.”). But see Corley
v. United States, 556 U.S. 303, 314 (2009) (holding
that “one of the most basic interpretive canons [is] that
‘[a] statute should be construed so that effect is given
to all its provisions, so that no part will be inoperative
or superfluous, void or insignificant ....”’) (citations
and internal quotation marks omitted).
The Ninth Circuit attempted to provide guidance
by identifying what the statute does not cover: “Had
[the defendant] used a drug that may be used legally
by laymen in some circumstances, or had his use of
[the controlled substance] been infrequent and in the
distant past,” then maybe that would not suffice to
classify him as an “unlawful user.” United States v.
Ocegueda, 564 F.2d 1363, 1366 (9th Cir. 1977). The
defendant in Ocegueda was a heroin addict. Id.
Heroin, unlike marijuana, may not be used legally in
any circumstances.
Between the extremes of single use (or infrequent
use in the distant past) and addicts lies a staggering
number of adult Americans who use marijuana, a drug
legalized for adult recreational use in twenty-four
states, two territories, and the District of Columbia.
27
The statute provides no objective guidance for
determining where within that chasm an individual
becomes an “unlawful user” who risks federal
prosecution if he possesses a gun.
The statute is also missing a temporal nexus
between the drug use and the firearm possession.
Multiple courts interpreting § 922(g)(3) have
concluded that the statute “runs the risk of being
unconstitutionally vague without a judicially-created
temporal nexus between the gun possession and
regular drug use.” Augustin, 376 F.3d at 138; United
States v. Espinoza-Roque, 26 F.4th 32, 35 (1st Cir.
2022); United States v Turnbull, 349 F.3d 558, 561
(8th Cir. 2003), vacated on other grounds, 543 U.S.
1099 (2005). As the Fifth Circuit recently observed,
“[t]he statutory term ‘unlawful user’ captures regular
marijuana users, but the temporal nexus is most
generously described as vague—it does not specify
how recently an individual must ‘use’ drugs to qualify
for the prohibition.” Connelly, 117 F.4th at 282. In the
absence of a statutorily defined objective test, the
courts have responded with a patchwork of judiciallycreated, amorphous requirements for that temporal
nexus. Beyond the agreement on requiring some
nexus—which appears nowhere in the statutory
text—the law devolves into incoherence, as courts
have struggled in vain to come up with a workable, let
alone uniform, test for what nexus is sufficient.
The Third Circuit requires that a defendant “have
engaged in regular use [of drugs] over a period of time
proximate to or contemporaneous with the possession
of the firearm.” Augustin, 376 F.3d at 139. The Second
Circuit requires a “pattern of use” or “ongoing” use
28
“that reasonably covers the time of the events
charged[.]” United States v. Nevarez, 251 F.3d 28, 30
(2d Cir. 2001); United States v. Yepez, 456 F. App’x 52,
54 (2d Cir. 2012). The Eighth Circuit requires drug use
“recently enough to indicate that the individual is
actively engaged in such conduct” and approved an
instruction stating that use need not be “within a
matter of days or weeks” of the firearm possession.
Boslau, 632 F.3d at 429-30; Carnes, 22 F.4th at 748.
The Eleventh Circuit, by contrast, held that an
instruction that use “is not limited to … within a
matter of days or weeks” of the possession dilutes the
temporal nexus requirement for “contemporaneous”
use. United States v. Clanton, 515 F. App’x 826, 830
(11th Cir. 2013).
None
of
those
divergent
extra-textual
interpretations provides an ordinary person with clear
notice or a discernible rule. Moreover, the judicially
invented limits raise more questions than they
resolve. Is someone a “regular” user if he smokes
marijuana with siblings annually on family vacations,
or at music festivals? Does “contemporaneous” use
mean using—or experiencing the effects—while
carrying a firearm, while one is within reach, or
simply while a firearm is within one’s control? When
does a person cease to be an unlawful user—after
months of abstinence for marathon training, or the
very day someone resolves to quit and later buys a
firearm?
The very existence of these judicially-created
temporal definitions illustrates § 922(g)(3)’s
unconstitutionality. Rescuing the statute from
unconstitutional vagueness by judicially inserting
29
(competing) extratextual requirements contravenes
the separation of powers. As this Court has
recognized, when a law “hand[s] off the legislature’s
responsibility for defining criminal behavior to
unelected prosecutors and judges,” “the role of courts
under our Constitution is not to fashion a new, clearer
law to take its place, but to treat the law as a nullity
and invite Congress to try again.” United States v.
Davis, 588 U.S. 445, 448 (2019).
B. The decision below is wrong.
The court of appeals erred by rejecting Harris’s
vagueness challenge to § 922(g)(3). Harris is an adult
who used marijuana recreationally—like millions of
Americans today. The government did not put forward
any evidence that Harris was experiencing the effects
of marijuana while he actually possessed any firearm
(a limitation, of course, that appears nowhere in the
statute). See App.46a-47a (Ambro, J., dissenting). His
conviction turned on the government’s arbitrary
determination that Harris’s statement to police—that
he recreationally used marijuana and also owned
firearms—was enough to prosecute him for violating
§ 922(g)(3). That result cannot be squared with the
Due Process Clause. Criminal liability cannot hinge
on such an imprecise standard—one that fails to give
fair notice and encourages haphazard enforcement.
Notably, in remanding for consideration of the
Second Amendment question, the court of appeals
identified various factors for the district court to
consider regarding Harris’s marijuana use and the
effects of marijuana more broadly. App.21a-22a. That
freewheeling inquiry—and the involvement of a
30
fundamental Constitutional right—only heightens the
grave vagueness problem with § 922(g)(3).
It is past time for this Court’s intervention. The
lower courts have tried—and failed—to come up with
a formulation that saves § 922(g)(3) from vagueness.
Because the term “user” is “so open-ended”—and
because the statute lacks any nexus requirement—
Harris could not have known whether his marijuana
use “may result in forfeiture of his rights under the
Second Amendment.” United States v. Herrera, 313
F.3d 882, 889 (5th Cir. 2002) (DeMoss, J., dissenting).
Section 922(g)(3) gives police and prosecutors
immense power to interpret and apply the law
according to their “personal predilections.” Kolender,
461 U.S. at 358. This Court should grant review and
hold that § 922(g)(3) is unconstitutionally vague as
applied to Harris.
III. The questions presented are important and
this case is the ideal vehicle to decide them.
Section 922(g)(3)’s disarmament of “unlawful
users” of any controlled substance runs afoul of two of
the Constitution’s guarantees. It violates the Second
Amendment by lacking any basis in the Nation’s
historical tradition of firearms regulation, and it is
void for vagueness because it fails to define “unlawful
user” while lacking any nexus requirement between
the drug use and the firearm possession. The
government has filed petitions for a writ of certiorari
in five cases presenting the first question, but it urges
the Court to accept review in a sui generis case where
it brought a § 922(g)(3) charge against a defendant
who apparently engaged in conduct that would have
warranted more serious charges. See United States v.
31
Hemani (No. 24-1234).3 Significantly, in the
§ 922(g)(3) cases where the government has sought
this Court’s review, neither the government nor
respondents ask the Court to consider the vagueness
question
presented
here.4
Harris’s
case—
unencumbered by Hemani’s more aggravated facts—
raises both questions of exceptional importance while
powerfully illustrating how the vagueness of
§ 922(g)(3) empowers arbitrary, and perhaps even
discriminatory, trampling of the Second Amendment’s
guarantee.
A. This case is the best vehicle for resolving
both questions presented.
Harris’s case presents a far better vehicle to
review § 922(g)(3)’s constitutionality because it is
unencumbered by Hemani’s more aggravated facts
involving cocaine use and drug dealing, and because
Harris alone presents both a Second Amendment and
a vagueness challenge, allowing the Court to consider
these intertwined issues together. Harris, a 21-yearold, first-generation college student working part-time
for a Christian nonprofit, had no prior arrests or
history of violence when he purchased three guns in
The government urges this Court to hold the remaining
petitions pending disposition of Hemani. See United States v.
Cooper (No. 24-1247) (petition filed June 5, 2025); United States
v. Daniels (No. 24-1248) (same); United States v. Sam (No. 241249) (same); United States v. Baxter (No. 24-1328) (petition filed
June 27, 2025).
3
4 The petitioners in the other pending § 922(g)(3) petitions do
not either. See Smith v. United States (No. 24-6936) (presenting
facial challenge to § 922(g)(3)); Clark v. United States (No. 247188) (presenting facial and unpreserved as-applied challenge to
§ 922(g)(3)).
32
early 2019. His admission (during a non-criminal
encounter with police) to smoking marijuana once
every three days subjected him to prosecution under §
922(g)(3) and exposed him to a 10-year (now a 15-year)
statutory penalty. See 18 U.S.C. § 924(a)(8).5 The
circumstances of Harris’s case thus cleanly present
the Second Amendment challenge to § 922(g)(3) as
applied to an individual who sometimes uses
marijuana but was not alleged to be intoxicated at the
time of the possession while also illustrating how the
statute
invites
arbitrary
or
discriminatory
enforcement.
By contrast, the defendant in the government’s
preferred vehicle, Hemani, is alleged to be “a drug
dealer who uses” cocaine and marijuana and
possessed guns along with more than a user amount
of each drug. The government paints Hemani as
sympathetic to terrorist causes and intimates that
other charges may have been available, though it
elected to charge Hemani only with violating
§ 922(g)(3). U.S. Pet. 5, Hemani, supra. And Hemani
presents no procedural advantage over this case, as
both cases arose out of a motion to dismiss based upon
agreed-upon facts—a posture that the government
says presents a sufficiently developed record in
Hemani. U.S. Pet. 26, Reply 12, Hemani, supra.
In fact, Harris’s case presents an even better
vehicle, as it was resolved by published opinion, with
5 Harris was not found in possession of, or under the influence
of, marijuana. Regardless, in Pennsylvania, possession of
marijuana for personal use, that is, thirty grams or less, is a
misdemeanor punishable not more than 30 days imprisonment
or by a fine up to $500. 35 P.S. §§ 780-113(a)(31) & (g).
33
each judge writing separately and one dissenting. By
contrast, Hemani was disposed of in a two page per
curiam opinion summarily affirming the order
dismissing the indictment—at the government’s own
request. The government moved for summary
affirmance after declining to even try to distinguish
Connelly, which held that § 922(g)(3) is
unconstitutional as applied to a marijuana user who
was not intoxicated while carrying a firearm. See
United States v. Hemani, Doc. 58 at 1-2, No. 24-40137
(5th Cir. Sept. 16, 2024). Notably, the government
could easily have distinguished Connelly given
Hemani’s admission to “purchasing and using cocaine
and marijuana regularly”; it chose not to. See U.S.
Response to Motion to Dismiss, Doc. 18 at 2, 7, United
States v. Hemani, Case No. 4:23-cr-18 (E.D. Tex., Feb.
23, 2023). This maneuvering suggests less an effort to
provide this Court with the best-developed case
possible, and more an effort to race to this Court with
what the government believes to be the best
instrument for presenting its arguments.
B. The constitutionality of § 922(g)(3) as
applied to adult marijuana users is
exceptionally
important
given
marijuana’s widespread—and, in many
states, legal—recreational use.
The particular fact pattern in which this case
arises also makes the need for review especially acute.
In recent years, using marijuana recreationally has
become much like drinking alcohol for many
Americans. About half of U.S. adults (51%) say they
have used marijuana at some point, according to a
34
2023 National Survey on Drug Use and Health.6
Despite being a Schedule I drug under federal law,
marijuana is legal to some extent in most states.
Twenty-four states, two territories, and the District of
Columbia have legalized marijuana for adult
recreational use.7 Another fourteen allow the drug for
medical use. Id. As of 2024, fifty-four percent of
Americans live in a jurisdiction where adult
recreational marijuana use is legal.8 Seventy-four
percent of Americans live in a state where marijuana
is legal for either recreational or medical use.9 Even in
jurisdictions like Pennsylvania, where adult
recreational marijuana is illegal, much of the
population resides in communities where its
criminalization is no longer enforced as a matter of
local policy.10 Notably, the DEA recently proposed
reclassifying marijuana under Schedule III, based in
part on HHS’s data-driven finding that “the vast
majority of individuals who use marijuana are doing
so in a manner that does not lead to dangerous
outcomes to themselves or others.” Schedules of
Controlled Substances: Rescheduling of Marijuana, 89
Fed. Reg. 44597-01 (proposed May 21, 2024).
Meanwhile, firearm ownership remains common
throughout the Nation. About forty percent of U.S.
adults live in a household with a firearm, including
6 See https://tinyurl.com/2kspr4r4
7 See https://tinyurl.com/2s38hesb
8 Id.
9 Id.
10 See https://tinyurl.com/3h3vkwh6
35
thirty-two percent who personally own one.11 With
both marijuana use and firearm ownership being so
common, there is inevitably significant overlap
between Americans who use marijuana and those who
possess firearms. See App.48a (Ambro, J., dissenting)
(warning against reasoning that “authorizes
legislatures to suspend the constitutional rights of so
many for such common behavior”). Whether and how
that use impacts their Second Amendment rights is a
question of surpassing importance.
C. The
court’s
decision
will
have
significant and immediate practical
consequences.
In its Hemani petition, the government correctly
observes that this Court’s immediate intervention is
necessary because the various tests announced by the
lower courts raise significant practical concerns. See
U.S. Pet. 25, Reply 9-10, Hemani, supra. Here, the
court of appeals’ amorphous and free-wheeling inquiry
into facts untethered from the elements of § 922(g)(3)
raises a host of constitutional and procedural
concerns, including questions about burdens of proof,
the scope and admissibility of evidence, and the proper
timing of the inquiry. As the government observed, the
inquiry contemplated on remand only “heighten[s] the
need for this Court’s review.” Reply 9-10, Hemani,
supra. And if this Court rules in favor of Harris,
including on vagueness grounds, the parties could
avoid an unnecessary remand.
11 See https://tinyurl.com/k9whtuke
36
CONCLUSION
For the foregoing reasons, this Court should grant
the petition for certiorari.
Respectfully submitted,
ERIN E. MURPHY
CLEMENT & MURPHY,
PLLC
706 Duke Street
Alexandria, VA 22314
ELISA A. LONG
RENEE D. PIETROPAOLO
Counsel of Record
STACIE M. FAHSEL
GABRIELLE LEE
FEDERAL PUBLIC
DEFENDER FOR THE
WESTERN DISTRICT
OF PENNSYLVANIA
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
Renee_Pietropaolo@fd.org
(412) 644-6565
Counsel for Petitioner
September 26, 2025
APPENDIX
TABLE OF APPENDICES
Appendix A
Opinion, United States Court of Appeals
for the Third Circuit, United States v.
Harris, No. 21-3031 (July 14, 2025)......... App. 1a
Appendix B
Judgment, United States Court of
Appeals for the Third Circuit, United
States
v.
Harris,
No.
21-3031
(July 14, 2025) ........................................ App. 50a
Appendix C
Order, United States District Court for
the Western District of Pennsylvania,
United States v. Harris, No. 19-cr-00313
(May 4, 2021) ........................................ App. 51a
Appendix D
Judgment, United States District Court
for the Western District of Pennsylvania,
United States v. Harris, No. 19-cr-00313
(Oct. 27, 2021) ......................................... App. 53a
Appendix E
Relevant Constitutional and Statutory
Provisions................................................ App. 62a
App. 1a
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 21-3031
________________
UNITED STATES OF AMERICA,
Appellee,
v.
ERIK MATTHEW HARRIS,
Appellant.
________________
Argued: December 9, 2024
Filed: July 14, 2025
________________
Before: Krause, Bibas, and Ambro,
Circuit Judges.
________________
OPINION
________________
BIBAS, Circuit Judge.
Guns and drugs can be a lethal cocktail. So
Congress passed 18 U.S.C. § 922(g)(3), barring illegal
drug users from having guns until they stop using.
Erik Harris, a frequent marijuana smoker, bought
guns anyway. He was convicted of possessing them
and of lying about his drug use to get them. Now he
challenges those convictions, claiming that the gun
App. 2a
ban for illegal drug users violates the Second
Amendment and is unconstitutionally vague.
Today, we hold that history and tradition justify
§ 922(g)(3)’s restrictions on those who pose a special
danger of misusing firearms because they frequently
use drugs. But we lack enough facts to tell whether the
law’s restrictions are constitutional as applied to
Harris. Still, § 922(g)(3) is not vague; it warned Harris
that he could not possess guns while routinely
smoking marijuana. So we will affirm in part, vacate
in part, and remand for the District Court to find facts
needed to apply the Second Amendment law laid out
here.
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 App. 34. The next
morning, he reported it stolen. Then he went back to
the same dealer to buy a third pistol as a replacement.
Once again, he filled out the form. And even though he
had smoked marijuana the night before, he once again
checked “no” to being an unlawful user.
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,
App. 3a
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 18 U.S.C. § 922(g)(3) for possessing each gun as
an “unlawful [drug] user” and three counts under §
922(a)(6) for lying to buy each one. 2 App. 25. Harris
moved to dismiss all counts. He argued that § 922(g)(3)
violates the Second Amendment as applied to him. He
also argued that the phrase “unlawful user” is
unconstitutionally vague, invalidating both § 922(g)(3)
(which bars “unlawful user[s]” from having guns) and
§ 922(a)(6) (which bars lying about being an unlawful
user).
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 § 922(g)(3) was
constitutional as applied to Harris, using means-end
scrutiny under Binderup v. Attorney General, 836 F.3d
336, 353, 356 (3d Cir. 2016) (en banc). Then Harris
pleaded guilty to all six counts, preserving his right to
appeal the issues raised in his motion to dismiss. We
App. 4a
review the District Court’s denial de novo. United
States v. Gonzalez, 905 F.3d 165, 190 (3d Cir. 2018).
II. TWO ANALOGUES JUSTIFY § 922(g)(3)’S
RESTRICTIONS FOR SOME DRUG USERS
Section 922(g)(3) bans possession of a gun by
anyone “who is an unlawful user of or addicted to any
controlled substance.” Harris claims that this ban
violates his Second Amendment rights. To assess that
claim, we use a two-step test focused on the
Amendment’s “text and historical understanding.”
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 26
(2022). First, we decide whether the Amendment’s
text covers his conduct. Id. at 17. If it does, the
government can justify disarming him only if doing so
is “consistent with this Nation’s historical tradition of
firearm regulation.” Id.
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 § 922(g)(3)
regulates
“quintessential
Second
Amendment
conduct: possessing a handgun.” United States v.
Moore, 111 F.4th 266, 269 (3d Cir. 2024).
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[] the right.” Id. (quoting
Bruen, 597 U.S. at 29).
App. 5a
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 § 922(g)(3) that it says justify its restrictions:
regulations on the dangerously drunk and
dangerously mentally ill. We survey these analogues
below and conclude that they support § 922(g)(3)’s
constitutionality as applied to those whose drug use
App. 6a
would likely cause them to pose a physical danger to
others if armed.
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
App. 7a
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 of the intemperate use
of ardent spirits.” Id. at 13.
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-Hampshire, Passed from
December Session, 1805, to June Session, 1810,
Inclusive 74 (Concord, N.H., Isaac Hill 1811)
(empowering officers to “arrest any … common
App. 8a
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 ProvidencePlantations 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
App. 9a
“revil[ed]” arresting officers to “give security … for 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).
B. The Founding Generation
incapacitated the mentally
risked endangering others
likewise
ill who
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:
App. 10a
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
App. 11a
society, he remained 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, English
Liberties, or the Free-Born Subject’s Inheritance 329
(6th ed., Providence, John Carter 1774).
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
App. 12a
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 circumstances.” 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).
App. 13a
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 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.
Rahimi, 602 U.S. at 694, 698.
And that is precisely what § 922(g)(3) does. It bars
gun possession by anyone “who is an unlawful user of
App. 14a
or addicted to any controlled substance.” Controlled
substances include Schedule I drugs like heroin, LSD,
and marijuana. 21 U.S.C. § 812, sched. I. An “addict”
is anyone “who habitually uses any narcotic drug so as
to endanger the public morals, health, safety, or
welfare, or who is so far addicted to the use of narcotic
drugs as to have lost the power of self-control with
reference to his addiction.” 21 U.S.C. § 802(1). And a
“user” is anyone who has “engaged in regular use [of
drugs] over a period of time proximate to or
contemporaneous with the possession of the firearm.”
United States v. Augustin, 376 F.3d 135, 139 (3d Cir.
2004). So by its own terms, § 922(g)(3) temporarily
bars anyone who often uses drugs from possessing a
gun shortly before, during, or after using drugs.
That restriction is well-grounded in history. By
taking guns out of the hands of frequent drug users, §
922(g)(3) addresses a problem comparable to the one
posed by the dangerously mentally ill and dangerous
drunks: a risk of danger to the public due to an altered
mental state. And its temporary restriction on gun
rights is analogous to these historical restrictions as
well. Of course, § 922(g)(3) “is by no means identical
to” these historical precursors. Id. “[B]ut it does not
need to be”; its temporary restriction on drug users
who would pose a risk of danger with a gun in their
hands “fits neatly” within this historical tradition. Id.
First, the historical laws targeted a problem
comparable to the one that § 922(g)(3) addresses as
applied to drug users who would risk danger to others
if armed. Both the drunkenness and lunacy laws
temporarily incapacitated people based on the
judgment that their impaired mental state posed a
App. 15a
risk to others. The lunacy laws authorized officials to
confine lunatics based on an individualized finding
“that there would be some risk of ‘mischief’ without it.”
United States v. Cooper, 127 F.4th 1092, 1096 (8th Cir.
2025) (emphasis added) (quoting Veasley, 98 F.4th at
914 (quoting Daniel Davis, A Practical Treatise upon
the Authority and Duty of Justices of the Peace in
Criminal Prosecutions 41 (Boston, Hilliard, Gray,
Little, & Wilkins 2d ed. 1828))). This meant that
someone could be deemed “dangerous” and so needing
confinement before he had harmed or threatened
anyone. Officials did not need to wait for the danger to
materialize. But such findings were still always based
on an “individualized assessment” rather than a
categorical judgment. Id.
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?
Second, the historical laws imposed a comparable,
indeed greater, burden on gun rights. The lunacy laws
App. 16a
authorized magistrates to lock up in jails, hospitals, or
asylums mentally ill people who they found posed a
risk to others. So did Massachusetts’s and New
Jersey’s drunkenness laws and many states’ surety
laws, which authorized locking up drunks who broke
their promises to stay dry. Imprisonment necessarily
involved disarmament. Veasley, 98 F.4th at 913
(collecting sources). And “if imprisonment was
permissible” to protect “the physical safety of others,
then the lesser restriction of temporary disarmament
that [§ 922(g)(3)] imposes is also permissible.” Rahimi,
602 U.S. at 699.
Plus, § 922(g)(3)’s burden is temporary. It forbids
gun possession only as long as someone is using drugs
regularly and so “likely poses an increased risk of
physical danger to others if armed.” Pitsilides v. Barr,
128 F.4th 203, 212 (3d Cir. 2025) (internal quotation
marks omitted). To be sure, drug users who flout the
ban will face a felony conviction, and felons can be
disarmed. See 18 U.S.C. § 922(g)(1). But as we have
recognized, disarmed felons may bring declaratory
judgment actions or petition the Attorney General to
get their rights back. See Range, 124 F.4th at 232; 18
U.S.C. § 925(c). Section 922(g)(3)’s “limited duration”
thus tracks the historical restrictions on lunatics or
drunks, which were also temporary and ceased once
someone regained his senses or sobered up. Rahimi,
602 U.S. at 699.
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
App. 17a
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
App. 18a
extended to all “common drunkards,” not just those
who acted abusively. 4 Blackstone at *256; Parker at
348; Eliphalet Ladd, Burn’s Abridgement, Or The
American Justice 405–406 (2d ed. 1792). So in this
respect, we must part ways with the dissent on the
proper principle to extract from the history:
Disarmament based on danger was always based on a
predictive judgment of danger, not certainty.
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 § 922(g)(8), which disarms those found to
be a “credible threat to the physical safety of [an]
intimate partner” or child). Its holding merely
parroted the requirements of § 922(g)(8) itself. And it
said no more and no less about the propriety of other
restrictions. See id. at 698. Indeed, Rahimi expressly
declined to “undertake an exhaustive historical
analysis … of the full scope of the Second
Amendment.” Id. at 702 (internal quotation marks
omitted).
The dissent similarly errs in analyzing Pitsilides.
There, we considered only an as-applied challenge to §
922(g)(1), the felon-in-possession law. And we held,
based on the history we recounted in Range, that the
Second Amendment permits disarmament, “at a
minimum,” when an individual “present[s] a special
danger of misusing firearms,” meaning he “would
App. 19a
likely pose a physical danger to others if armed.”
Pitsilides, 128 F.4th at 210 (cleaned up). We said
nothing about what might justify a different
regulation, such as § 922(g)(3), which targets a
different problem through different means.
Of course, the history justifying § 922(g)(8) or §
922(g)(1) in some applications may be relevant to any
Second Amendment analysis. But it is only a slice of
the history that reveals the “principles that underpin
our regulatory tradition.” Rahimi, 602 U.S. at 692. We
must not blindly defer to historical principles
extracted from partial surveys of history relevant to
other regulations.
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
App. 20a
misfire waiting to happen—the exact risk that our
historical tradition suggests justifies disarmament.
*****
In
sum,
§
922(g)(3)
temporarily
and
constitutionally restricts the gun rights of drug users
only as long as they “present a special danger of
misusing firearms.” Pitsilides, 128 F.4th at 211
(cleaned up); see also United States v. Daniels, 124
F.4th 967, 978–79 (5th Cir. 2025) (leaving open
whether § 922(g)(3) is constitutional as applied to
some marijuana users); Cooper, 127 F.4th at 1098
(same).
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 § 922(g)(3) without finding that Harris’s
frequent marijuana use increased the risk that he
could not handle guns safely. We do not fault the
District Court for failing to make this finding. When
Harris moved to dismiss the indictment, the 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 § 922(g)(3) is constitutional as
applied to Harris under this proper framework. Plus,
App. 21a
whether Harris’s § 922(g)(3) conviction is
constitutional turns on many facts unanswered by the
existing record. Although Harris admitted smoking
multiple times a week throughout the year on average,
many other details are foggy. But we are not a factfinding court. Anderson v. Bessemer City, 470 U.S.
564, 574 (1985). And we “are a court of review, not first
view.” Frank v. Gaos, 586 U.S. 485, 493 (2019)
(internal quotation marks omitted). So we will remand
for the District Court to fill in the record before
applying the law outlined here.
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:
x
The length and recency of the defendant’s use
during and shortly before his gun possession;
x
The drug’s half-life;
x
Whether use of the drug affects a person’s
judgment,
decision-making,
attention,
inhibition, or impulse control;
x
Whether the drug may induce psychosis;
x
The drug’s interference with a user’s
perception of his own impairment; and
x
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
App. 22a
considering § 922(g)(3) challenges should also consider
these factors in determining whether someone’s drug
use suggests that he “likely poses an increased risk of
physical danger to others if armed.” Pitsilides, 128
F.4th at 212 (internal quotation marks omitted).
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 a risk that he would pose a physical danger to
others. And in doing so, they should consider the
questions we have suggested here and any others
needed to discern whether a particular drug user may
be disarmed to prevent a risk of danger.
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.” 18 U.S.C. §
922(g)(3); Johnson v. United States, 576 U.S. 591, 595
(2015). But that argument fails.
A. As a rule, defendants may not facially
challenge criminal laws
To challenge § 922(g)(3) as facially vague, Harris
must first show that it is vague as applied to his own
conduct. The Supreme Court has long held that, with
few exceptions, a defendant whose conduct is “clearly
proscribed cannot complain of the vagueness of the
law as applied to the conduct of others.” Holder v.
Humanitarian L. Project, 561 U.S. 1, 19 (2010)
App. 23a
(quoting Vill. of Hoffman Ests. v. Flipside, Hoffman
Ests., 455 U.S. 489, 495 (1982)). That rule “makes
perfectly good sense.” United States v. Morales-Lopez,
92 F.4th 936, 941 (10th Cir. 2024). If a statute clearly
warns an ordinary person that his own conduct is a
crime, he cannot dodge liability just because it might
not be clear as to someone else.
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. 576 U.S. 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. MoralesLopez, 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 § 922(g)(3),
which depend not on hypotheticals, but on each case’s
facts.
We thus join our sister circuits in holding that
Johnson did not abrogate the ordinary rule for facialvagueness 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.
App. 24a
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 facialvagueness 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 § 922(g)(3)’s plain text.
So the statute put him on notice that his conduct was
a crime.
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 reasonable construction,” we must give it that
construction. United States v. Harriss, 347 U.S. 612,
618 (1954). Heeding that guidance, we have held that
§ 922(g)(3) requires a defendant to “have engaged in
regular use [of drugs] over a period of time proximate
to or contemporaneous with the possession of the
firearm.” Augustin, 376 F.3d at 139. That tracks the
statute’s text. A “user” is a “person who takes narcotic,
etc., drugs,” implying some regularity of use. User (def.
1b), Oxford English Dictionary (2d ed. 1989). And the
verb “is” in the statute speaks in the present tense,
requiring the use of drugs to be close in time to the gun
possession.
Harris’s conduct fits the bill. He smoked
unlawfully: Federal law makes marijuana illegal. 21
U.S.C. § § 812, 841. And he did so often enough to be
a “user.” He admitted smoking marijuana at least
several times per week around when he bought the
App. 25a
guns, including the night before buying his third gun.
So under both the statute’s “text” and “settled
interpretations,” he had clear notice that he was
breaking the law. United States v. Lanier, 520 U.S.
259, 267 (1997); see also United States v. Deng, 104
F.4th 1052, 1055 (8th Cir. 2024) (rejecting vagueness
claim by frequent marijuana smoker). His vagueness
challenge fails.
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, §
922(g)(3) is not unconstitutionally vague.
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 § 922(g)(3) convictions under either the Due
Process Clause or Second Amendment, we “must
necessarily vacate [his] § 922(a)(6) convictions” too.
Reply Br. 29.
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.
App. 26a
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 §922(a)(6) convictions would
be “part of the remedy required” if his §922(g)(3)
convictions were found to violate the Second
Amendment. Reply Br. 29. Harris simply changed
claims mid-stream, so he did not preserve this one for
appeal. His § 922(a)(6) convictions must stand.
*****
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
statutory phrase “unlawful user” is not vague as
applied to Harris’s own frequent marijuana use while
he possessed guns. Plus, Harris’s convictions for lying
to get the guns must stand. So we will affirm in part,
vacate in part, and remand for the District Court to
find facts necessary to resolve Harris’s Second
Amendment challenge.
App. 27a
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 analogues concerns,
namely drunkenness and lunacy. See Maj. Op. 7–14.
And they imposed similar, if not more burdensome,
restrictions on drunks and lunatics than those which
18 U.S.C. § 922(g)(3) imposes on users of controlled
substances. I write separately, however, with some
observations about our Nation’s evolving—and
conflicted—relationship with marijuana and how
modern-day understandings may inform the
application of § 922(g)(3) to habitual marijuana users.
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
App. 28a
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 acceptance 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 state
App. 29a
and federal regulation.1 21 U.S.C. §§ 841(a)(1), 844(a).
This federal prohibition presaged a 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. 98473, 98 Stat. 1976.
Today, marijuana is legal to various extents in
forty states, including for recreational use in twentyfour states and the District of Columbia. State Medical
Cannabis Laws, Nat’l Conf. of State Legislatures
(June 27, 2025), https://www.ncsl.org/health/statemedical-cannabis-laws. Federal law, however, has
continued to bar its use, listing it in the Controlled
Substances Act as a Schedule I controlled substance,
21 U.S.C. § 812, sched. I(c)(10), meaning that in the
view of Congress and the Attorney General, id. §
811(a), it “has a high potential for abuse,” “has no
currently accepted medical use in treatment in the
United States,” and lacks “accepted safety for use of
the drug or other substance under medical
supervision,” id. § 812(b)(1). And because marijuana is
classified as a controlled substance, its users are
1 While the federal government did regulate marijuana in
various forms before 1970, the Controlled Substances Act was the
first comprehensive federal law targeting illicit drug use and
possession. See Gonzales v. Raich, 545 U.S. 1, 10-14 (2005).
App. 30a
subject to § 922(g)(3)’s ban on possession of a firearm
by habitual users. 18 U.S.C. § 922(g)(3).
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 asapplied 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
2 See also Harmelin v. Michigan, 501 U.S. 957, 1002 (1991)
(Kennedy, J., concurring) (observing the danger posed by “druginduced changes in physiological functions, cognitive ability, and
mood”); Nat’l Acads. of Scis., Eng’g, and Med., The Health Effects
of Cannabis and Cannabinoids: The Current State of Evidence
and Recommendations for Research 53 (2017) (explaining that
the effects of marijuana intoxication include an altered
“perception of time,” “decreased short-term memory,” and
“impaired perception and motor skills,” and that, at higher doses,
marijuana can cause “panic attacks, paranoid thoughts, and
hallucinations”).
App. 31a
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 cannabis users, they can be
more intense and last longer, 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, 5–6 (2011).
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/f
ullarticle/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
App. 32a
Use, Dependence, and the Brain: A Clinical
Perspective, 115 Addiction 559, 565 (2019). One metaanalysis 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 § 922(g)(3), as
applied to “those whose drug use would likely cause
them to pose a physical danger to others if armed,”
Maj. Op. 6, is “consistent with this Nation’s historical
tradition” of regulating gun possession by drunks and
lunatics, N.Y. State Rifle & Pistol Ass’n v. Bruen, 597
U.S. 1, 17 (2022), and reflects the type of commonsense prophylactic judgment that the Second
Amendment permits, see Maj. Op. 14–15. We leave it
to the District Court on remand to develop the record
App. 33a
on which it relies to apply the statute to Harris. Given
the cognitive and motor impairments associated with
marijuana use, however, our evolving understanding
of the effects of marijuana, as reflected in these types
of scientific studies, will bear heavily on that
determination.
App. 34a
AMBRO, Circuit Judge, concurring in part and
dissenting in part
Erik Harris has no history of violence or
threatening behavior. The Government wants to
disarm him anyway under 18 U.S.C. § 922(g)(3)
because he used marijuana around the time he bought
his gun. Harris argues that charging him under that
provision violates his Second Amendment right. I join
my colleagues on a remand that would require the
District Court to determine whether the Government
has proven that Harris’s marijuana causes him to
“pose[] a clear threat of physical violence to another”
before the Government can disarm him. Pitsilides v.
Barr, 128 F.4th 203, 209 (3d Cir. 2025) (Krause, J.)
(quoting United States v. Rahimi, 602 U.S. 680, 698
(2024)).1 My colleagues correctly note that Harris may
be disarmed if his marijuana use makes him a
“credible threat to the physical safety of others with a
gun.” Maj. Op. 14 (citing Rahimi, 602 U.S. at 694,
698). But they also obscure this conclusion with
language that sets the threshold for potential
dangerousness too low. See, e.g., id. at 16 (“likely
pose[] an increased risk of physical danger to others if
armed” (internal quotation marks omitted)), 19
(alluding to an undefined “likelihood” of risk), 20
(suggesting the District Court need only examine
whether “Harris’s frequent marijuana use increased
the risk that he could not handle guns safely”). No
other court does so, and on this I dissent.
1 I also join the portion of the decision that affirms Harris’s
convictions under 18 U.S.C. § 922(a)(6) and the District Court’s
denial of his constitutional vagueness challenge to § 922(g)(3).
App. 35a
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.” U.S.
Const. amend. II. And he was convicted under §
922(g)(3) for “quintessential Second Amendment
conduct: possessing a handgun.” Maj. Op. 5 (quoting
United States v. Moore, 111 F.4th 266, 269 (3d Cir.
2024), cert. denied, 2025 WL 1787742 (2025)).
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 § 922(g)(3) is
“relevantly similar” to historical “analogue[s],” which
are Founding-era laws that “impose[d] a comparable
burden” with a “comparabl[e] justifi[cation].” Bruen,
597 U.S. at 29–30. “[I]f laws at the [F]ounding
regulated firearm use to address particular problems,
that will be a strong indicator that contemporary laws
imposing similar restrictions for similar reasons” are
permissible. Rahimi, 602 U.S. at 692. But “[e]ven
when a law regulates arms-bearing for a permissible
reason, … it may not be compatible with the right if it
App. 36a
does so to an extent beyond what was done at the
[F]ounding.” Id.
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 that 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 §
922(g)(8)); see also Range, 124 F.4th at 230 (explaining
that Range could not lose his Second Amendment
rights without “evidence that he pose[d] a physical
danger to others”). Other circuits to have addressed
the question here agree. See United States v. Cooper,
127 F.4th 1092, 1095 (8th Cir. 2025) (“[F]or
disarmament of drug users and addicts to be
comparably justified [with Founding-era laws], it
must be limited to those who pose a danger to others.”
(brackets and internal quotation marks omitted));
United States v. Connelly, 117 F.4th 269, 277 (5th Cir.
2024) (requiring a factfinder to determine whether the
defendant “presents a danger to [himself] and
others”).
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
App. 37a
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 sense: 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 § 922(g)(3) to Erik Harris?
My colleagues agree that it has no historical twin. Maj.
Op. 6. Instead, they cite Founding-era “regulations on
the dangerously drunk and dangerously mentally ill.”
Id. But Founding-era lawmakers did not have free
rein to disarm people who drank alcohol. The key to
this “permissible reason,” Rahimi, 602 U.S. at 692,
was dangerousness caused by intoxication. See Maj.
Op. 7 (explaining the Founding generation
App. 38a
“understood that drinking could provoke people to act
dangerously”).
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 “abused” 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 of th[e]
State,” An Act Against Breaking the Peace, reprinted
in Acts and Laws of the State of Connecticut, in
America 189 (Hartford, Elisha Babcock (1786)). The
throughline connecting these laws is that they
disarmed drunkards who “pose[d] a danger to others.”
United States v. Veasley, 98 F.4th 906, 916 (8th Cir.
2024), cert. denied, 145 S. Ct. 304 (2024).
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
App. 39a
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[]
the ‘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 §
922(g)(3)’s regulation of marijuana users. See
Connelly, 117 F.4th at 276 (“The government
highlights nothing demonstrating that laws designed
to confine (and consequently, disarm) those so
severely mentally ill that they presented a danger to
themselves and others map onto § 922(g)(3)’s
rationale.”); United States v. Harrison, 654 F. Supp. 3d
1191, 1214 (W.D. Okla. 2023) (“There are likely nearly
400,000 Oklahomans who use marijuana under statelaw authorization. Lumping all those persons into a
category with ‘dangerous lunatics[]’ … is a bridge too
far.”).
App. 40a
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 threat,” 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 physical danger”); id. at 20
(“increased … risk”). It is the “increased risk”
formulation that is both off-point and concerning. To
the majority, someone who uses marijuana can be
disarmed even if he plainly is not dangerous, so long
as his use increases the chance he could act
dangerously. No Founding-era analogue justifies
restricting gun possession in that circumstance.
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.
App. 41a
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 teams
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
App. 42a
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 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.”) (Krause, J.,
concurring in the judgment).
My colleagues respond by arguing that Rahimi,
Range, and Pitsilides do not control the outcome here
because they invoke different historical traditions—
App. 43a
those justifying §§ 922(g)(1) (regulating gun
possession of felons) and (g)(8) (regulating gun
possession of those subject to restraining orders). Maj.
Op. 18–19. But then they reach the conclusion I
espouse. They concede their cited history “operated
like the surety and going-armed laws that the
Supreme Court blessed in Rahimi.” Id. at 16. And they
purport to adopt—though not consistently—principles
articulated in those cases. E.g., id. at 3 (adopting the
“pose a special danger of misusing firearms” principle
from Pitsilides); 14 (adopting the “credible threat”
standard in Rahimi and Range). How do those
standards fit holding here a lower standard that
requires only an increased risk of danger?
The 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.
App. 44a
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 nonrecord 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 National Cancer
Institute that does not mention marijuana. Id.)
App. 45a
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
2 The majority identifies several factors for the District Court
to consider on remand, like marijuana’s “half-life” and “[w]hether
the drug may induce psychosis.” Maj. Op. 21. These may be
relevant to the ultimate dangerousness inquiry, but almost none
App. 46a
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 the
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
of the considerations they outline sheds light on whether Harris
himself was dangerous.
App. 47a
searched Scott’s house, another friend’s house, and his
car once more, but the gun was still missing. Harris
then returned to the bar to look for it. Coming up
empty, he called the police and reported the gun
stolen. The police ultimately found it with Scott, a
convicted felon. Suspecting Harris had purchased the
gun for Scott, they interviewed Harris. During the
interview, he denied doing so but admitted being a
frequent user of marijuana.
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
App. 48a
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).
3 My colleagues say that a “buzzed brain with a loaded gun
sounds like a misfire waiting to happen.” Maj. Op. 20. But their
folksy retort gives the game away. If we accept that simply being
intoxicated is enough to be disarmed, without some
individualized determination that the user would be dangerous
because of his intoxication, then we are endorsing a disarmament
regime based on categorical dangerousness judgments. In the
majority’s view, if you drink, then you can be disarmed. That was
certainly not the historical tradition at the Founding.
App. 49a
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, but those times are scattered in a mountain of
mismatches. I concur in the judgment only to the
extent that it affirms Harris’s convictions under 18
U.S.C. § 922(a)(6) and the District Court’s denial of his
constitutional vagueness challenge to § 922(g)(3).
Because the majority instructs the District Court to
consider Harris’s increased risk of dangerousness
rather than his actual threat of danger to others
caused by his marijuana use, the tipping point is too
low. Thus I respectfully dissent.
App. 50a
Appendix B
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 21-3031
________________
UNITED STATES OF AMERICA,
Appellee,
v.
ERIK MATTHEW HARRIS,
Appellant.
________________
Filed: July 14, 2025
________________
JUDGMENT
________________
This cause came to be considered on the record
from the U.S. District Court for the Western District
of Pennsylvania and was argued on December 9, 2024.
On consideration whereof, it is now ORDERED
and ADJUDGED that the District Court’s judgment
entered on October 27, 2021, is hereby AFFIRMED
IN PART AND VACATED AND REMANDED IN
PART. Costs will not be taxed. All of the above in
accordance with the Opinion of this Court.
ATTEST:
s/ Patricia S. Dodszuweit
Clerk
Dated: July 14, 2025
App. 51a
Appendix C
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
________________
No. 19-cr-00313
________________
UNITED STATES OF AMERICA,
v.
ERIK MATTHEW HARRIS,
Defendant.
________________
Proceedings Held: May 4, 2021
________________
EXCERPT OF TRANSCRIPT OF PROCEEDINGS
ON MOTION TO DISMISS INDICTMENT
________________
…
distinguished from someone who is classified as
addicted to a controlled substance. So we stand by our
position as we classified his conduct as recreational
marijuana use.
And some of the facts that the Government brings
in about the gun ultimately going into the possession
of someone else doesn’t detract from the actual issue
at hand, and that’s whether recreational marijuana
users, a complete bar on those users, survive
intermediate scrutiny because it simply does not.
And that’s all I have, Your Honor. Thank you.
App. 52a
THE COURT: Well, counsel, I’ve carefully
reviewed the file in this case, the charges at issue,
your both well-written briefs, considered the
arguments you’ve submitted here today. And I’ve also
carefully reviewed the entire exhibit that was
submitted for the Court to look at in advance, which
was the interview session with Mr. Harris. I’ve
considered all of these factors, the laws at issue in this
case, the directives of the courts’ decisions in the past,
and having considered your arguments, it is my
position and decision that the motion to dismiss the
indictment is denied. And we will issue an order
forthwith scheduling this matter for a pretrial
conference.
Anything further for the record?
MR.
CZARNECKI:
Government.
Nothing
from
the
MS. LEE: No, Your Honor. Thank you.
THE COURT: Thank you very much. Have a good
day.
(Proceedings adjourned at 10:51 a.m.)
App. 53a
Appendix D
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
________________
No. 19-cr-00313
________________
UNITED STATES OF AMERICA,
v.
ERIK MATTHEW HARRIS,
Defendant.
________________
Filed: October 27, 2021
________________
JUDGMENT IN A CRIMINAL CASE
________________
THE DEFENDANT:
5 pleaded guilty to count(s) ONE through SIX of the
Indictment
…
The defendant is adjudicated guilty of these offenses:
App. 54a
Title & Nature of Offense
Section
Offense
Ended
Count
18
U.S.C.
922(g)(3)
Possession
of
a 3/14/2019 1-3
firearm
and/or
ammunition by an
unlawful user of a
controlled substance
18
U.S.C.
922(a)(6)
Falsification
of 3/14/2019 4-6
firearms purchase
form
The defendant is sentenced as provided in pages
2 through 7 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
…
It is ordered that the defendant must notify the
United States attorney for this district within 30 days
of any change of name, residence, or mailing address
until all fines, restitution, costs, and special
assessments imposed by this judgment are fully paid.
If ordered to pay restitution, the defendant must
notify the court and United States attorney of material
changes in economic circumstances.
10/26/2021
Date of Imposition of Judgment
[handwritten: signature]
Signature of Judge
Marilyn J. Horan, United
States District Judge
Name and Title of Judge
10/26/2021
Date
App. 55a
IMPRISONMENT
The defendant is hereby committed to the custody
of the Federal Bureau of Prisons to be imprisoned for
a total term of:
6 months.
5 The court makes the following recommendations to
the Bureau of Prisons:
1. That the defendant be placed at FCI Morgantown.
…
5 The defendant shall surrender for service of
sentence at the institution designated by the Bureau
of Prisons:
…
5 as notified by the United States Marshal.
SUPERVISED RELEASE
Upon release from imprisonment, you will be on
supervised release for a term of:
3 years with the first 6 months to be served on home
detention.
MANDATORY CONDITIONS
…
5. 5 You must cooperate in the collection of DNA as
directed by the probation officer. (check if applicable)
You must comply with the standard conditions that
have been adopted by this court as well as with any
other conditions on the attached page.
STANDARD CONDITIONS OF RELEASE
As part of your supervised release, you must comply
with the following standard conditions of supervision.
App. 56a
These conditions are imposed because they establish
the basic expectations for your behavior while on
supervision and identify the minimum tools needed by
probation officers to keep informed, report to the court
about, and bring about improvements in your conduct
and condition.
1. You must report to the probation office in the
federal judicial district where you are authorized to
reside within 72 hours of your release from
imprisonment, unless the probation officer instructs
you to report to a different probation office or within a
different time frame.
2. After initially reporting to the probation office,
you will receive instructions from the court or the
probation officer about how and when you must report
to the probation officer, and you must report to the
probation officer as instructed.
3. You must not knowingly leave the federal
judicial district where you are authorized to reside
without first getting permission from the court or the
probation officer.
4. You must answer truthfully the questions
asked by your probation officer.
5. You must live at a place approved by the
probation officer. If you plan to change where you live
or anything about your living arrangements (such as
the people you live with), you must notify the
probation officer at least 10 days before the change. If
notifying the probation officer in advance is not
possible due to unanticipated circumstances, you must
notify the probation officer within 72 hours of
becoming aware of a change or expected change.
App. 57a
6. You must allow the probation officer to visit you
at any time at your home or elsewhere, and you must
permit the probation officer to take any items
prohibited by the conditions of your supervision that
he or she observes in plain view.
7. You must work full time (at least 30 hours per
week) at a lawful type of employment, unless the
probation officer excuses you from doing so. If you do
not have full-time employment you must try to find
full-time employment, unless the probation officer
excuses you from doing so. If you plan to change where
you work or anything about your work (such as your
position or your job responsibilities), you must notify
the probation officer at least 10 days before the
change. If notifying the probation officer at least 10
days in advance is not possible due to unanticipated
circumstances, you must notify the probation officer
within 72 hours of becoming aware of a change or
expected change.
8. You must not communicate or interact with
someone you know is engaged in criminal activity. If
you know someone has been convicted of a felony, you
must not knowingly communicate or interact with
that person without first getting the permission of the
probation officer.
9. If you are arrested or questioned by a law
enforcement officer, you must notify the probation
officer within 72 hours.
10. You must not own, possess, or have access to
a firearm, ammunition, destructive device, or
dangerous weapon (i.e., anything that was designed,
or was modified for, the specific purpose of causing
App. 58a
bodily injury or death to another person such as
nunchakus or tasers).
11. You must not act or make any agreement with
a law enforcement agency to act as a confidential
human source or informant without first getting the
permission of the court.
12. If the probation officer determines that you
pose a risk to another person (including an
organization), the probation officer may require you to
notify the person about the risk and you must comply
with that instruction. The probation officer may
contact the person and confirm that you have notified
the person about the risk.
13. You must follow the instructions of the
probation officer related to the conditions of
supervision.
…
ADDITIONAL SUPERVISED RELEASE TERMS
1. The defendant shall not illegally possess a
controlled substance.
2. The defendant shall not possess a firearm,
ammunition, destructive device, or any other
dangerous weapon.
3. The defendant shall be placed on home
detention for a period of 180 days, to commence as
soon as arrangements can be made by the Probation
Office. The defendant shall abide by all technology
requirements. The location monitoring technology
requirement, i.e., Radio Frequency (RF), Global
Positioning System (GPS), or Voice Recognition, or
Virtual Supervision Monitoring, is at the discretion of
the probation officer. During the period of home
App. 59a
detention, the defendant shall remain at their
residence except for employment; education; religious
services; medical, substance abuse, or mental health
treatment; attorney visits; court appearances; courtordered obligations; or other activities as preapproved by the probation officer. During this time,
the defendant shall comply with the rules of the
location monitoring program and may be required to
maintain a landline telephone, without special
features, at the defendant's place of residence. The
defendant shall pay all or part of the costs of
participation in the location monitoring program as
directed by the court and probation officer, but not to
exceed the daily contractual rate.
4. The defendant shall participate in a program of
testing and, if necessary, treatment for substance
abuse, said program to be approved by the probation
officer, until such time as the defendant is released
from the program by the Court. Further, the
defendant shall be required to contribute to the costs
of services for any such treatment in an amount
determined by the probation officer but not to exceed
the actual cost. The defendant shall submit to one
drug urinalysis within 15 days after being placed on
supervision and at least two periodic tests thereafter.
5. It is further ordered that the defendant shall
not intentionally purchase, possess and/or use any
substance(s) designed to simulate or alter in any way
the defendant’s own urine specimen. In addition, the
defendant shall not purchase, possess and/or use any
device(s) designed to be used for the submission of a
third-party urine specimen.
App. 60a
6. The defendant shall submit his person,
property, house, residence, vehicle, papers, business
or place of employment, to a search, conducted by a
United States Probation or Pretrial Services Officer at
a reasonable time and in a reasonable manner, based
upon reasonable suspicion of contraband or evidence
of a violation of a condition of supervision. Failure to
submit to a search may be grounds for revocation. The
defendant shall inform any other residents that the
premises may be subject to searches pursuant to this
condition.
7. The defendant shall participate in the United
States Probation Office’s Workforce Development
Program as directed by the probation officer.
8. The defendant shall cooperate in the collection
of DNA as directed by the probation officer, pursuant
to 28 C.F.R. § 28.12, the DNA Fingerprint Act of 2005,
and the Adam Walsh Child Protection and Safety Act
of 2006.
9. The defendant shall forfeit to the United States
the following property, which is identified in the
forfeiture allegation and the plea agreement: a Rock
Island .45 caliber pistol, model 1911-A 1, bearing
serial number RIA1982462; a Smith and Wesson .40
caliber pistol, model SD40VE, bearing serial number
FXY1361; and a Smith and Wesson .40 caliber pistol,
model SD40VE, bearing serial number FWX7043.
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal
monetary penalties under the schedule of payments on
Sheet 6.
App. 61a
Assessment
TOTALS
$600.00
…
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay,
payment, of the total criminal monetary penalties is
due as follows:
…
F 5 Special instructions regarding the payment of
criminal monetary penalties:
It is further ordered that the defendant shall pay
to the United States a special assessment of $600,
which shall be paid to the United States District Court
Clerk forthwith.
…
5 The defendant shall forfeit the defendant’s interest
in the following property to the United States:
Rock Island .45 caliber pistol, model 1911-A1, bearing
serial number RIA1982462; a Smith and Wesson .40
caliber pistol, model SD40VE, bearing serial number
FXY1361; and a Smith and Wesson .40 caliber pistol,
model SD40VE, bearing serial number FWX7043.
…
App. 62a
Appendix E
CONSTITUTIONAL AND STATUTORY
PROVISIONS
U.S. Const. amend. II
A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.
U.S. Const. amend. XIV, §1
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
18 U.S.C. § 922(g)(3)
…
(g) It shall be unlawful for any person—
…
(3) who is an unlawful user of or addicted to any
controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802));
…
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.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.