Prospective Dangerousness as a Constitutional Principle for Disarmament: Tenth Circuit Remands § 922(g)(3) Marijuana Case for Evidence in United States v. Harrison

Introduction

United States v. Harrison, a published decision of the U.S. Court of Appeals for the Tenth Circuit (Aug. 26, 2025), confronts one of the most consequential questions left in the wake of New York State Rifle & Pistol Ass'n v. Bruen (2022) and United States v. Rahimi (2024): when, if ever, may the government constitutionally disarm an entire category of people based on a legislative assessment of risk rather than a person’s past violent acts? The government appealed after the district court dismissed an indictment charging Jared Michael Harrison under 18 U.S.C. § 922(g)(3)—the federal ban on firearm possession by an “unlawful user of or addicted to” a controlled substance—on the ground that the statute violated the Second Amendment as applied to a non-intoxicated marijuana user.

Writing for the court, Judge Rossman reverses and remands. The court:

Confirms that “the people” protected by the Second Amendment includes all Americans (not merely the “law-abiding”), and that pretrial as-applied challenges are cognizable on an undisputed record.
Adopts Rahimi’s instruction that courts must look for the “principles that underpin our regulatory tradition,” not historical twins, when analogizing.
Rejects the government’s analogy to laws disarming the mentally ill but recognizes a historically grounded principle that legislatures may disarm those believed to pose a risk of future danger.
Holds that the absence of a “distinctly similar” founding-era law disarming non-intoxicated drug users is relevant but not dispositive.
Orders a remand because the government must substantiate, with evidence, that non-intoxicated marijuana users as a class pose a future risk sufficient to justify disarmament.

Judge Kelly concurs in part and dissents in part. He would affirm the dismissal, finding the historical record supports disarming people only while actively intoxicated and rejecting analogies to the disarmament of Catholics and Loyalists. He also warns that the remand permits the government to inject untimely arguments.

Case Background

During a traffic stop, officers smelled marijuana, searched Harrison’s car, and found a loaded revolver and marijuana products. An indictment followed for violating § 922(g)(3) as an “unlawful user” of marijuana. Harrison moved to dismiss, arguing the statute violated the Second Amendment as applied to a non-intoxicated marijuana user. The district court granted the motion under Bruen. While the appeal was pending, the Supreme Court decided Rahimi, refining the Second Amendment method and foregrounding principle-based analogical reasoning.

Key Issues

Is the challenge facial or as-applied, and can it be resolved pretrial?
Does the Second Amendment protect Harrison’s conduct—i.e., is he among “the people” and was he “keeping or bearing arms”?
At Bruen step two, what principles from history control: may legislatures disarm only those proven dangerous by past violent conduct, or may they also disarm those believed to pose a risk of future danger?
Are historical laws disarming the mentally ill, Catholics, and Loyalists valid analogues?
What is the consequence of there being no close historical analogue disarming non-intoxicated drug users?
What showing must the government make to justify § 922(g)(3) as applied to non-intoxicated marijuana users?

Summary of the Judgment

Scope and timing of the challenge: The case is an as-applied challenge to § 922(g)(3) as applied to non-intoxicated marijuana users. Pretrial resolution was proper because the operative facts were undisputed and the government did not timely object to relying on those facts. The government’s late arguments that Harrison might have been intoxicated were deemed waived.
Bruen Step One: Harrison is part of “the people.” The Second Amendment’s text covers his conduct. The “law-abiding” descriptor in Heller and Bruen does not limit who is “the people.”
Bruen Step Two—Method: Applying Rahimi, the court asks whether the challenged regulation is consistent with “principles that underpin our regulatory tradition,” using analogical reasoning that focuses on how and why regulations burden the right.
Persistent societal problem: The problem addressed by § 922(g)(3) is the dangerous combination of guns and intoxicants—a concern present since the founding.
No historical twin: There is no “distinctly similar” founding-era law disarming non-intoxicated drug users; that absence is relevant but not dispositive.
Analogies rejected/accepted: Laws disarming the mentally ill are not valid analogues for non-intoxicated marijuana users. However, English and colonial-era laws disarming Catholics and Loyalists, and the English Militia Act of 1662, support a principle that legislatures may disarm those believed to pose a risk of future danger. The district court erred in limiting “dangerousness” to past violent acts.
No blank check: Legislative judgments are not owed uncritical deference; the government must substantiate that the targeted group poses a sufficient risk, consistent with the historical principle.
Disposition: Reversed and remanded. The district court must decide whether the government can show that non-intoxicated marijuana users pose a future risk that justifies disarmament under the historical principle recognized.

Analysis

1) Precedents Cited and Their Influence

District of Columbia v. Heller (2008): Recognized an individual right to keep and bear arms; referred to “law-abiding, responsible citizens” but described the right as belonging to “all Americans.” The majority here uses Heller’s text to read “the people” broadly across the Bill of Rights.
New York State Rifle & Pistol Ass’n v. Bruen (2022): Established a two-step, history-driven test and emphasized “how” and “why” analogues burden the right. Bruen’s language about “historical analogue, not a historical twin” and scrutiny of persistent societal problems frames the court’s method.
United States v. Rahimi (2024): Clarified that courts should look for “principles that underpin our regulatory tradition,” not insist on precise historical matches. Upheld § 922(g)(8) by analogizing to “going armed” laws and other historical restrictions aimed at threats to others. Critical in pushing the Tenth Circuit to recognize a principle of prospective dangerousness.
Rocky Mountain Gun Owners v. Polis (10th Cir. 2024): Applied Bruen; suggests “the people” does not vary across the Constitution; informed step-one analysis and the general approach to burdens.
United States v. Jackson (10th Cir. 2025): Treated individuals with prior misdemeanors as part of “the people,” reinforcing a broad step-one reading.
United States v. Gordon (10th Cir. 2025): Upheld a firearm restriction that requires a judicial dangerousness finding (§ 922(g)(8)(C)(ii)), illustrating circumstances where individualized findings fit history.
Connelly (5th Cir. 2024) and Cooper (8th Cir. 2025): Connelly held § 922(g)(3) unconstitutional as applied to non-intoxicated marijuana users; Cooper also found as-applied unconstitutionality in certain non-intoxicated marijuana scenarios. The Tenth Circuit respectfully disagrees with Connelly’s narrow analogical approach and level of generality.
Harris (3d Cir. 2025): Remanded a § 922(g)(3) challenge for fact-finding on whether use of a given drug affects judgment and control—closely mirroring this remand.
Williams (6th Cir. 2024), Duarte (9th Cir. 2025) (en banc), Perez-Garcia (9th Cir. 2024), Zherka (2d Cir. 2025), Hunt (4th Cir. 2024), Jackson (8th Cir. 2024), Pitsilides (3d Cir. 2025): These decisions provide the broader judicial chorus recognizing that Anglo-American history includes categorical disarmament of perceived dangerous groups; many emphasize that legislatures historically made ex ante judgments of group dangerousness.
Procedural authorities (Pope, Hall, Brown, Lyons, Mhoon): Support pretrial as-applied adjudication on an undisputed record and bar the government’s late-shot intoxication arguments.

2) The Court’s Legal Reasoning

Bruen Step One: “The People” Means All Americans

The court holds that the Second Amendment’s “people” encompasses, at minimum, all Americans, aligning the term across the First, Second, and Fourth Amendments. Repeated references in Heller and Bruen to “law-abiding” citizens do not contract “the people.” Rahimi’s reasoning undermines a test that would exclude entire classes from step one simply because they are not “responsible.”

Bruen Step Two: Principle-Based Analogical Reasoning Under Rahimi

Defining the problem: The court frames § 922(g)(3) as addressing the enduring problem of guns mixed with intoxicants. It rejects an overly narrow characterization (e.g., only “unlawful” use of modern “controlled substances”), which would make it too easy to evade historical comparison.
No historical twin is not dispositive: Although history shows prohibitions on carrying while intoxicated, the lack of a founding-era ban on non-intoxicated users is relevant but not controlling. Originalism does not adopt a “use it or lose it” theory of legislative power.
Mentally ill analogy rejected: The court refuses to equate non-intoxicated marijuana users with the mentally ill, warning against vague, capacious labels like “not responsible” or having poor “self-control.” Rahimi rejects such subjective rationales for categorical disarmament.
Prospective dangerousness principle accepted: By contrast, a principle allowing legislatures to disarm groups believed to pose a risk of future danger is historically grounded. The court draws from:

England’s Militia Act of 1662 (authorizing seizure of arms from those “judged dangerous”).
English and colonial laws disarming Catholics and Loyalists, often on oaths or allegiance grounds, reflecting ex ante risk assessments about public safety and potential insurrection.
Founding-era proposals (e.g., “peaceable citizens” in Massachusetts; Pennsylvania Minority’s “real danger of public injury” language) that contemplated disarmament tied to “danger,” sometimes independent of crimes already committed.

The majority emphasizes the level of generality required by Rahimi: courts should extract principles, not molds. Just as Rahimi analogized domestic violence restraining-order disarmament to going-armed and similar public-order threats (without a domestic-abuse twin), Harrison generalizes from war-related disarmament to a broader principle: legislatures historically disarmed groups they deemed especially risky with firearms. That principle was implemented both retrospectively (based on past conduct) and prospectively (based on perceived risk).

Important Limits: No Uncritical Deference; Evidence Required

The court rejects rubber-stamping legislative labels. To be “consistent with” the historical principle, the government must demonstrate that the category at issue is indeed one “believed to pose a risk of future danger.” That means the state’s categorical determination must be substantiated, not merely asserted. The court cites Worth v. Jacobson (8th Cir. 2024) to underscore that delegating the right’s scope to bare legislative “belief” would “subjugate the right to bear arms.”

Remand: What the District Court Must Decide

The remand directs the district court to determine whether non-intoxicated marijuana users as a class pose a future danger sufficient to justify disarmament under the recognized historical principle. This includes:

Assessing social science or other evidence about whether unlawful marijuana use (while not intoxicated at the time of possession) correlates with violent crime, impaired impulse control, or other risks relevant to firearm misuse.
Deciding how that evidence aligns with the historical “how” and “why” of disarmament.
Determining whether the tradition contemplates categorical disarmament or requires some mechanism for individualized relief or rebuttal (an issue the court leaves open but notes was often present historically, such as oath-taking exceptions).

The government cannot, on remand, rewrite the factual premise: intoxication at the time of possession remains off the table due to waiver.

3) The Dissent (Kelly, J.)

Judge Kelly agrees that Harrison is part of “the people” and that mentally ill analogies fail. But he parts ways on two fronts:

History supports only intoxication-based restrictions: Founding laws restricted carrying while intoxicated; § 922(g)(3), which disarms users even when sober, “goes much further” than historical practice and thus fails Bruen/Rahimi.
No valid analogy to Catholics/Loyalists: Those disarmament measures were wartime, insurrection-focused policies “seen as potential insurrectionists,” unlike modern marijuana users. He criticizes the majority’s level of generality and fears a “blank check” to disarm swaths of Americans, especially given evolving state marijuana regimes.
Procedural fairness: The remand invites untimely arguments and burdens the defendant in an as-applied challenge when the government did not build a record on danger; he would affirm the dismissal.

Impact and Likely Consequences

A. Immediate Effects in the Tenth Circuit

New governing principle: Legislatures may disarm groups they reasonably and demonstrably assess as posing a future risk with firearms. That principle must be anchored in history and supported by evidence in application.
As-applied remands: District courts should expect evidentiary development on whether a class (here, non-intoxicated marijuana users) fits the historical principle of dangerousness. Courts must resist mere legislative say-so.
Limit on analogies: Government cannot justify disarmament of non-intoxicated users by invoking the mentally ill category or amorphous notions like “irresponsible” or “lacking self-control.”
Procedural guardrails: Pretrial as-applied challenges are available where facts are undisputed; late-raised factual theories (e.g., intoxication) are waived.

B. Interaction with Other Circuits and the Emerging Split

Fifth Circuit’s Connelly: Disagrees with Harrison’s broader principle, requiring tighter analogues; views Catholics/Loyalists disarmaments as inapposite. Harrison deliberately parts company on level of generality.
Third Circuit’s Harris: Aligns with Harrison’s remand model—fact-finding about drug effects relevant to danger and firearm misuse.
Ninth, Sixth, Eighth, Fourth, and Second Circuits: Several decisions recognize categorical disarmament of perceived dangerous groups as part of the tradition, strengthening the majority’s approach to principle extraction post-Rahimi.

This division—especially between the Fifth Circuit and courts like the Tenth, Third, Sixth, Ninth, and Second—portends eventual Supreme Court review of § 922(g)(3) as applied to marijuana users and, more broadly, the proper level of generality for Second Amendment analogies.

C. Beyond Marijuana: Ramifications for Other Disarmament Regimes

Other § 922(g) categories: Felon-in-possession, domestic-violence misdemeanants, those subject to restraining orders, and mental-health prohibitions may all be litigated under the “principles” framework with heightened attention to evidence of category-specific risk.
Alcohol vs. drugs: Founding-era intoxication laws focused on alcohol and intoxication at the time of carrying. Future cases may test whether legislatures can justify broader categorical disarmament of sober users of particular substances and what evidentiary threshold applies.
Individualized relief: Because historical regimes sometimes allowed persons to rebut presumptions (e.g., oaths restoring arms), courts may consider due-process-like off-ramps or exceptions when assessing categorical bans.

Complex Concepts Simplified

As-applied vs. facial challenge:
- Facial: the law is unconstitutional in all or virtually all its applications.
- As-applied: the law may be valid generally but unconstitutional as applied to the challenger’s specific circumstances.
Bruen’s two steps:
- Step one: Does the Second Amendment’s text cover the person, arm, and conduct? If yes, the right is presumptively protected.
- Step two: Government must show the regulation is consistent with the Nation’s historical tradition. Courts compare “how” and “why” historical and modern laws burden the right.
Rahimi’s “principles” approach: Courts should extract general principles that underlie historical regulations instead of demanding near-identical historical laws. A historical analogue need not be a twin.
Persistent societal problem: If a modern law addresses a problem that existed at the founding, the absence of a similar historical regulation is relevant (but not necessarily fatal).
Prospective dangerousness: A historically recognized principle allowing legislatures to disarm groups thought to pose a risk of future violence or misuse of firearms—even absent individual past violence.
“How” and “why” in analogies: “Why” addresses the law’s justification (e.g., preventing dangerous misuse). “How” addresses the mechanism and scope (e.g., categorical disarmament vs. targeted restrictions; presence of exceptions or relief).
Waiver and timeliness: Arguments not raised in a timely manner, especially new factual theories on appeal, are forfeited or waived and cannot be revived on remand.

What the District Court Must Do on Remand

The remand is not a blank slate; intoxication at the time of possession is off the table. The question is whether, consistent with the historical principle of disarming those believed to pose a risk of future danger, the government can show that non-intoxicated marijuana users as a class present such a risk. Practical considerations include:

What empirical evidence exists connecting unlawful marijuana use, while sober at the time of possession, to violent crime or risky firearm behavior?
Is the category definition precise enough (e.g., “regular and ongoing” unlawful users) to match the historical “how” of categorical disarmament?
Should an individualized “rebuttal” mechanism be recognized, mirroring historical oath or relief processes?
How should differences between modern drug scheduling and founding-era intoxicant concerns inform the analysis without narrowing the “general societal problem” beyond recognition?

Practical Takeaways for Litigants and Courts

For the government:
- Prepare a robust evidentiary record, including current social science, demonstrating that non-intoxicated unlawful marijuana use correlates with heightened risk of violent misuse of firearms.
- Define the regulated class precisely and justify the fit between that class and the historical principle of prospective dangerousness.
- Anticipate arguments for individualized relief and be prepared to address how such mechanisms align with historical practice.
For defendants:
- Challenge the strength, quality, and relevance of government evidence, emphasizing distinctions between intoxicated and non-intoxicated possession.
- Offer counterevidence and propose narrowing constructions or as-applied limits that better fit historical practice.
- Argue for individualized relief opportunities where appropriate, drawing on historical oath/exception models.
For district courts:
- Steer the parties toward focused evidentiary development that speaks to the historical principle’s “how” and “why.”
- Guard against untimely factual pivots but allow relevant modern evidence to “inform the modern side” of the historical analogy, consistent with Bruen and Rahimi.

Conclusion

Harrison establishes a significant doctrinal waypoint in Second Amendment jurisprudence. Embracing Rahimi’s directive, the Tenth Circuit recognizes that our regulatory tradition includes a principle of prospective dangerousness: legislatures historically disarmed entire categories of people believed to pose a risk of future violence or misuse of firearms. Yet, crucially, the opinion rejects “blank check” deference. To be constitutional as applied, a modern disarmament must be supported by evidence showing the targeted group actually presents the relevant risk, and the law’s scope and mechanisms must “fit” the historical principle’s “how” and “why.”

On this record, the court rejects analogies to the mentally ill and refuses to exclude marijuana users from “the people.” It treats the absence of a founding-era twin as meaningful but not decisive, and it remands for fact-finding on whether non-intoxicated marijuana users as a class are sufficiently dangerous to justify disarmament. The dissent would hold that founding-era intoxication laws foreclose sober-user disarmament and that Catholics/Loyalists analogies fail at the proper level of generality.

As courts nationwide grapple with Bruen and Rahimi, Harrison’s careful blend of historical principle and evidence-sensitive application will shape future litigation over § 922(g)(3) and other disarmament provisions. The decision both broadens and disciplines Second Amendment analysis: it acknowledges the tradition of categorical disarmament for dangerousness while insisting that the government prove, in modern terms, that the category it targets fits that historical principle.