On a Friday in May 2022, Jared Harrison was on his way to work at an Oklahoma medical marijuana dispensary when a police officer stopped him for running a red light. When Harrison rolled down his window, the officer smelled marijuana. A search of the car discovered a loaded revolver, a pill bottle containing a few partially smoked joints, another joint in a console tray, and a backpack containing marijuana, THC gummies, and two THC vape cartridges.
Because Harrison did not have a state-issued medical marijuana card, he was charged with illegal possession of cannabis under state law, a misdemeanor. But he also faced a felony charge under 18 USC 922(g)(3), the federal law that bars illegal drug users from possessing firearms. That charge, he argued, violated the Second Amendment. A federal judge agreed, ruling in February 2023 that the government had failed to show Harrison’s prosecution was “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test that the U.S. Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.
This week the U.S. Court of Appeals for the 10th Circuit reversed that ruling and remanded the case for further consideration. The 10th Circuit’s decision in United States v. Harrison, because it endorsed U.S. District Judge Patrick Wyrick’s reasoning in nearly all respects, nevertheless represents another in a series of blows to a policy that affects millions of peaceful Americans, depriving them of the constitutional right to armed self-defense for no good reason.
As it has in other Section 922(g)(3) cases, the government argued that cannabis consumers are not part of “the people” whose “right to keep and bear arms” is guaranteed by the Second Amendment because they are not “law-abiding.” Wyrick made short work of that claim, noting that the Supreme Court has said “the people,” as used in the Bill of Rights, “unambiguously refers to all members of the political community, not an unspecified subset.”
The government’s argument amounted to “an outright declaration of the federal government’s belief that it can deprive practically anyone of their Second Amendment right,” Wyrick added. “Who among us, after all, isn’t a ‘lawbreaker’? For sure, there
may well exist some adult[s] who [have] never exceeded the speed limit, changed lanes without signaling, or failed to come to a complete stop at a stop sign, but they are few and far between.”
The three-judge 10th Circuit panel unanimously agreed with Wyrick on this point. “A contrary conclusion would defy law and logic,” Judge Veronica Rossman, a Joe Biden appointee, writes in the majority opinion, which was joined in full by Judge Michael R. Murphy, who was nominated by Bill Clinton, and in part by Judge Paul J. Kelly Jr., who was appointed by George H.W. Bush. “The First and Fourth Amendments also refer to the ‘people,’ and nobody contends only ‘law-abiding citizens’ enjoy the rights protected by these constitutional guarantees….Restricting the Second Amendment to ‘law-abiding’ citizens—as the government urges us to do—would make it harder to administer and would risk turning it into ‘a second-class right.'”
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