By: Nimesh Wijewardane
Published: June 1, 2025
Jared Harrison was driving to work when he was pulled over for a traffic violation.[1] When Harrison rolled down his window to speak with the police officer, the officer smelled marijuana.[2] Police searched the vehicle and found a loaded revolver and marijuana products.[3] Harrison was arrested and indicted for possessing a firearm in violation of 18 U.S.C. § 922(g)(3)—which carries a possible penalty of up to fifteen years of imprisonment and prohibits a person from possessing a firearm who is “an unlawful user or addicted to any controlled substance.”[4] The term “controlled substance” is defined by the Controlled Substances Act,[5] which labels marijuana as a Schedule I drug.[6] Despite the federal prohibition on marijuana use, recreational marijuana is legal in twenty-four states and D.C., and medical marijuana is legal in thirty-nine states.[7] While enforcing this criminal provision is not a high priority for the Department of Justice (“DOJ”), federal prosecutors have brought several § 922(g)(3) cases in recent years—most notably against Hunter Biden.[8] While defendants have brought Second Amendment challenges to § 922(g)(3), the DOJ has continued to defend the constitutionality of the provision. The Fifth and Eighth Circuits have rejected facial challenges to § 922(g)(3) but have found § 922(g)(3) unconstitutional in certain as-applied cases.[9] The enforcement of § 922(g)(3) against nonviolent, habitual marijuana users violates the Second Amendment.
The Supreme Court has established a two-step process for determining whether a gun regulation violates the Second Amendment.[10] First, courts ask whether the Amendment’s plain text covers an individual’s conduct.[11] Next, courts inquire into whether the challenged regulation is consistent with the principles that underpin our country’s regulatory tradition,[12] which puts the burden on the government to offer historical analogues.[13] Historically analogous laws are relevantly similar to the challenged regulation if they address a comparable problem and impose a comparable burden on the individual,[14] but the analogue need not be a “dead ringer” or “historical twin”.[15] Courts have found that the Second Amendment’s plain text covers conduct in a § 922(g)(3) habitual marijuana user case because these cases involve an individual’s possession of a commonly used firearm—often a handgun—and marijuana users are presumptively protected by the Second Amendment since they are among “the people” who possess the right to bear arms.[16] Proceeding to the second step, there are four potential historical analogues to § 922(g)(3), but none are relevantly similar enough to satisfy the history and tradition test articulated in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi.
First, the government has argued that laws regulating intoxication are sufficiently similar to those banning marijuana.[17] A 1655 Virginia law banned shooting while drinking and a 1771 law in New York banned firing guns during New Year’s Eve celebrations,[18] but both of these examples are significantly different from § 922(g)(3). The 1655 Virginia law only restricted gun use during intoxication,[19] while § 922(g)(3) sweeps far more broadly—categorically prohibiting gun possession even when a marijuana user is not high.[20] The 1771 New York law only applied during three days out of the year, from December 31 to January 2, and moreover only prohibited firing guns.[21] No colonial-era law restricted the right to bear arms based on the mere fact that a person was a user of alcohol.[22] Thus, colonial-era intoxication laws did not impose a comparable burden to § 922(g)(3). Notably, governments at the country’s founding did not categorically disarm alcoholics—the group most analogous to regular marijuana users.[23]
Second, the government has argued that laws disarming “dangerous” individuals are a proper analogue.[24] During the founding era, those who were loyal to Britain were disarmed.[25] Marijuana users, in contrast, are not a class of political traitors and do not pose a comparable national security risk. Assessing dangerousness more generally, the use of marijuana alone is not a violent or threatening act,[26] and nonviolent habitual marijuana users are not violent by definition, and therefore, do not pose a danger to public safety that justifies a deprivation of the right to bear arms. Unlike the gun law upheld in Rahimi, § 922(g)(3) does not require a judicial finding of violent behavior.[27] Vague invocations of dangerousness cannot justify applying § 922(g)(3) to nonviolent habitual marijuana users.
Third, the government has argued that laws disarming the mentally ill are a proper analogue.[28] In the eighteenth century, mentally ill people who were dangerous to themselves or others were confined.[29] Yet, this severe restriction on personal liberty required the mentally ill person to be considered dangerous. As articulated above, nonviolent habitual marijuana users generally do not rise to that level of dangerousness.
Finally, the government has argued that the founding era prohibition on taking up arms to terrify people is a proper analogue.[30] These laws prohibited the offensive use of a firearm in a way that terrorized others but did not prohibit mere possession or open carrying of firearms.[31] While some controlled substances, such as methamphetamine, can induce terrifying and violent conduct, habitual marijuana use in moderate doses is unlikely to have that effect.[32] A marijuana user like Jared Harrison, who keeps a gun in his home or car for the purpose of self-defense, is not using a firearm in an offensive way that terrorizes other people.
Survey data on drug use and gun ownership indicates that around twenty million Americans are violating § 922(g)(3).[33] Under § 922(g)(3), tens of millions of Americans are deprived of their right to bear arms simply because they use marijuana, even in states where marijuana use is perfectly legal. This deprivation of rights is not justified under the history and tradition of firearm regulation in America, and there is no historical analogue for § 922(g)(3)’s deprivation of Second Amendment rights for habitual marijuana users. The law’s broad sweep is particularly absurd when polling in 2023 demonstrated that seventy percent of Americans support marijuana legalization.[34] The application of § 922(g)(3) to nonviolent habitual marijuana users flagrantly violates the Second Amendment and must be found to be unconstitutional.
[1] See United States v. Harrison, 654 F. Supp. 3d 1191, 1194 (W.D. Okla. 2023).
[2] Id.
[3] Id.
[4] 18 U.S.C. § 922(g)(3).
[5] Id.
[6] See Drug Scheduling, U.S. Drug Enf’t Admin, https://www.dea.gov/drug-information/drug-scheduling (defining a Schedule I drug as having no accepted medical use and high potential for abuse).
[7] See Medical Marijuana Laws, NORML, https://norml.org/laws/medical-laws/ (last visited Apr. 17, 2025); Legalization, NORML, https://norml.org/laws/legalization/ (last visited Apr. 17, 2025).
[8] See Jacqueline Thomsen, Hunter Biden Gun Conviction Law Has Divided US Appeals Courts, Bloomberg L. (June 13, 2024, 3:29 PM), https://news.bloomberglaw.com/us-law-week/hunter-biden-gun-conviction-law-has-divided-us-appeals-courts.
[9] See United States v. Veasley, 98 F.4th 906, 908 (8th Cir. 2024) (rejecting facial challenge to the statute); United States v. Connelly, 117 F.4th 269, 272 (5th Cir. 2024) (finding law unconstitutional in as-applied challenge); United States v. Daniels, 124 F.4th 967, 970 (5th Cir. 2025) (same); United States v. Cooper, 127 F.4th 1092, 1094 (8th Cir. 2025) (same).
[10] See N.Y. State Rifle & Pistol Assoc. v. Bruen, 597 U.S. 1, 17 (2022).
[11] Id.
[12] See id. at 26-31.
[13] See id. at 29.
[14] See id. at 27-30.
[15] United States v. Rahimi, 602 U.S. 680, 692 (2024).
[16] See United States v. Veasley, 98 F.4th 906, 910 (8th Cir. 2024) (finding that drug users are part of the people whom the Second Amendment protects).
[17] See United States v. Connelly, 117 F.4th 269, 279 (5th Cir. 2024).
[18] See Veasley, 98 F.4th at 911.
[19] See Connelly, 117 F.4th at 280.
[20] See § 922(g)(3) (prohibiting a “user of controlled substances” from possessing firearms and not including a temporal limitation to when the user is high).
[21] See Connelly, 117 F.4th at 280.
[22] See United States v. Harrison, 654 F. Supp. 3d 1191, 1201 (W.D. Okla. 2023).
[23] See Connelly, 117 F.4th at 279.
[24] See id. at 277 (describing that the government’s assertion that Congress has long disarmed anyone considered dangerous).
[25] Id. (noting several states disarmed those who refused to swear an oath of allegiance to the colonies during the Revolutionary War)
[26] See Harrison, 654 F. Supp. 3d at 1213.
[27] See Connelly, 117 F.4th at 278-79.
[28] See id. at 275.
[29] See United States v. Veasley, 98 F.4th 906, 913 (8th Cir. 2024).
[30] See id. at 916.
[31] See id. at 917 (emphasizing that terrorizing behavior had to accompany possession under these laws).
[32] See Marijuana, Cleveland Clinic, https://my.clevelandclinic.org/health/articles/4392-marijuana-cannabis, (last visited Mar. 21, 2025).
[33] See Jacob Sullum, Hunter Biden’s Trial Highlights a Widely Flouted, Haphazardly Enforced, and Constitutionally Dubious Gun Law, Reason (June 4, 2024, 3:40 PM), https://reason.com/2024/06/04/hunter-bidens-trial-highlights-a-widely-flouted-haphazardly-enforced-and-constitutionally-dubious-gun-law/.
[34] See Lydia Saad, Grassroots Support for Legalizing Marijuana Hits Record 70%, Gallup (Nov. 8, 2023), https://news.gallup.com/poll/514007/grassroots-support-legalizing-marijuana-hits-record.aspx.