The Second Amendment: A Federal Appellate Court Plays A Wolf In Sheep’s Clothing

In the Bruen case, the Supreme Court held that individuals have a Second Amendment right to carry a firearm outside of their home. While that holding was extremely important by itself, the test the Supreme Court adopted for Second Amendment claims was much more important for Second Amendment rights. In Bruen, the Supreme Court rejected the interest balancing tests that the lower courts had developed for Second Amendment claims. Those interest balancing tests generally relegated the Second Amendment to second class status. The Supreme Court replaced the interest balancing tests with a historically based analysis that looks at whether there existed at the time the Second Amendment was enacted laws that regulated the possession or carrying of firearms in a manner analogous to the current law being analyzed. The government has the burden of showing the existence of such a legislative tradition. The legislative tradition test does this by asking whether the challenged law regulates the possession or carrying of firearms (a) for a reason similar to the historical laws (the “why” test), and (b) regulates the right to keep and bear firearms in a manner similar to the historical laws (the “how” test). Without a meaningful nexus between the modern and historic laws using the “how” and “why” framework, the Second Amendment analysis simply becomes a device to rubber stamp whatever the policy preferences are entertained by the court.

The Harrison Case: Facts and Holding

In United States v. Harrison, the Federal Appellate Court for the Tenth Circuit approved such a tenuous connection between some historic laws and the modern law being challenged that the court nullified the Second Amendment as a serious constitutional right in the states covered by the Tenth Circuit.

The Harrison case was a criminal prosecution of Mr. Harrison under 18 U.S.C. Section 922(g)(3),which makes it unlawful for any person who is an “unlawful user” of, or “addicted” to, any controlled substance to possess a firearm. Section 922(g)(3) does not require that the defendant have possession of any controlled substance when he or she is arrested. Nor does Section 922(g)(3) require that the defendant was violent or engaged in any disruptive conduct. Further, an individual can violate Section 922(g)(3) even if he or she has never been arrested for possessing or using drugs, been committed to a drug rehabilitation program or have been found previously by a court to be an addict. Finally, Section 922(g)(3)’s plain language potentially covers a vast range of individuals who use drugs. At one extreme are the individuals who use one or more illegal drugs daily. At the other extreme are the casual users who may use an illegal drug once a week or once a month. The point on this spectrum that separates a violation of Section 922(g)(3) from a non-violation is not at all clear.

Section 922(g)(3) obviously creates an apparent infringement on the right to keep and bear arms. The difficult question is when can the government prosecute a “user” of illegal drugs or an “addict” and not violate the Second Amendment? Whether applying Section 922(g)(3) to Mr. Harrison violates his Second Amendment rights turns on whether there existed around the time the Second Amendment was enacted laws that disarmed individuals for a “similar” reason and in a “similar” manner (the how and why tests). If “similarity” is too narrowly construed, the Second Amendment may prohibit government action that the founders would not have considered inconsistent with the right to keep and bear arms. The Supreme Court explicitly stated that the “how” and “why” test does not demand a historical twin. If “similarity” is viewed too generally, however, the Second Amendment’s protections evaporate. The decision is Harrison used such a weak and abstract level of “similarity” between the historical laws and the Section 922(g)(3) to render the Second Amendment a nullity.

The facts in Harrison are straightforward. Mr. Harrison allegedly ran a red light and a local police officer pulled him over. When Mr. Harrison rolled down his window, the police officer smelled marijuana. Mr. Harrison told the officer that he worked in a medical marijuana dispensary, but “did not have a state-issued medical marijuana card.” The officer asked Mr. Harrison to exit the car and then searched the car. The search uncovered “partially smoked marijuana cigarettes,” a backpack that contained marijuana and “a prerolled marijuana cigarette and marijuana stems in a tray.” The police also found a loaded revolver in the car. Mr. Harrison was then arrested for “possession of marijuana, possession of paraphernalia, and failure to obey a traffic signal.”

How Mr. Harrison’s arrest came to the attention of federal prosecutors who presented the matter to a federal grand jury is not stated. The grand jury returned a federal felony indictment against Mr. Harrison for his alleged violation of Section 922(g)(3). Specifically, Mr. Harrison was charged with “knowledge that he was an unlawful user of marijuana, a controlled substance . . ., knowingly possessed a firearm . . .” The indictment did not allege that Mr. Harrison was an addict. Nor did the indictment allege that Mr. Harrison was under the influence of marijuana when he was arrested. Finally, the indictment did not allege that Mr. Harrison posed a danger to anyone.

Mr. Harrison filed a motion to dismiss his indictment on the ground that Section 922(g)(3) was unconstitutional under the Second Amendment. The district court granted Mr. Harrison’s motion and dismissed the indictment. The Tenth Circuit reversed the district court’s dismissal order on the ground that there was insufficient evidence to conclude that Section 922(g)(3) violated Mr. Harrison’s Second Amendment rights. The Tenth Circuit sent the case back to the district court so the court could determine if Mr. Harrison was in some way “dangerous.” What dangerous means and how dangerous Mr. Harrison had to be was not explained by the Tenth Circuit.

The Tenth Circuit’s Analysis

The Second Amendment issue before the Tenth Circuit was whether the application of Section 922(g)(3) to a person like Mr. Harrison violated his Second Amendment rights. While possession is not the same as use, the government could certainly claim that Mr. Harrison’s possession of marijuana, partially smoked marijuana cigarettes and smoking paraphernalia was sufficient circumstantial evidence that Mr. Harrison was a “user” of marijuana. Whether the government had any additional evidence concerning Mr. Harrison’s use of marijuana is irrelevant, because none of that evidence was presented to the Tenth Circuit. The Tenth Circuit’s analysis was based on nothing more than Mr. Harrison’s possessing marijuana, smoking paraphernalia and a firearm.

The Tenth Circuit thought it important to frame the issue as whether a non-intoxicated user of marijuana who has a firearm can be prosecuted under Section 922(g)(3) consistently with the Second Amendment. But framing the issue this way is incorrect. There is no requirement under Section 922(g)(3) that the defendant “used” illegal drugs consistently or even frequently. In Harrison, the government apparently built its case on the fact that Mr. Harrison possessed marijuana and smoking paraphernalia and also had a handgun. In other words, possessing marijuana and smoking paraphernalia is circumstantial evidence of “use” that prohibits the individual from possessing any firearms under Section 922(g)(3). But possessing marijuana does not disclose how frequently someone uses marijuana. In Harrison, the government took an extremely broad view of Section 922(g)(3)’s reach, which raises profound issues under the Second Amendment.

The Tenth Circuit first addressed the government’s argument that Mr. Harrison was not a member of the “people” as that word is used in the Second Amendment. The government argued that only “law abiding” citizens are part of the “people” for purposes of the Second Amendment, and that people who use drugs are not “law abiding.” The first problem with the government’s argument is that the word “people” is used throughout the Constitution. For example, the First and Fourth Amendments also use the word “people.” The suggestion that Fourth Amendment rights against illegal searches and seizures only apply to “law abiding” citizens is absurd. Nor could the government credibly argue that only “law abiding” citizens have free speech rights or the right to petition the government under the First Amendment. The word “people” should not have different meanings throughout the Constitution.

Second, the phrase “law abiding” has no obvious content or limiting principle. For example, does having one or more misdemeanor arrests mean that someone is not a “law abiding” citizen. What about an individual who has a number of speeding tickets. Could the government take the position that an individual arrested for demonstrating against government policies is not a “law abiding” citizen and seize his or her firearms. The problem with an open-ended phrase like “law abiding” is that its meaning would turn on the good or ill will of a government official. The lack of any meaning behind the phrase “law abiding,” also means that a court could simply use its own policy beliefs in the place of constitutional analysis.

Finally, there are no other constitutional rights that turn on whether an individual is “law abiding.” Engrafting such a requirement on the Second Amendment would turn the Second Amendment into a hollow constitutional right. While some might applaud this, it is no small thing to render a constitutional right meaningless. If one of the rights in the Bill of Rights can be neutered, why cannot other rights face the same fate when they are viewed as contrary to public safety. Public safety arguments can be made against the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments.

The court then turned to the historical test, where its analysis went off the rails. The Tenth Circuit framed the relevant issue as whether a “non-intoxicated” user of drugs can violate Section 922(g)(3) consistently with the Second Amendment. Framing the issue in this manner makes no sense. If Mr. Harrison was a “user” of marijuana, he would certainly be intoxicated at various times. Whether Mr. Harrison is intoxicated when he is at home, walking down the street or getting arrested does not have any obvious connection to the Second Amendment analysis. If Mr. Harrison was intoxicated 90% of the time, the happenstance that he was not intoxicated when he was arrested does not shed any light on whether a person like Mr. Harrison is protected by the Second Amendment. For that matter, whether Mr. Harrison was intoxicated when he was arrested does not have any bearing on whether Mr. Harrison violated Section 922(g)(3). The court, however, does explain why its framing the issue the way it did is meaningful for its constitutional analysis.

Framing the issue as whether a non-intoxicated person who has possession of marijuana can be disarmed under Section 922(g)(3) misses or ignores the more far reaching problem with the government’s position. Even if the government had evidence that Mr. Harrison was a gun owner who frequently or regularly used marijuana, that is not the case the government presented to the Tenth Circuit in Harrison. The case the government presented to the Tenth Circuit was that Mr. Harrison had marijuana in his car. Whether Mr. Harrison was intoxicated when he was driving his car did not control the government’s invoking Section 922(g)(3), because Section 922(g)(3) is neither a public intoxication law nor a DUI law. Section 922(g)(3) does not turn on whether an individual is high at the time of his or her arrest.

As the court started the historical analysis, it could not turn to laws that addressed people who were publicly intoxicated. Nor did the Tenth Circuit identify any laws in place around the time the Second Amendment was enacted that prohibited the possession of firearms by individuals who possessed alcohol or drugs. While we think of drugs as modern inventions, drugs like opium and other plant-based drugs were available to people living in colonial America. Without such laws, the government and the Tenth Circuit had to look somewhere else for a relevant historical tradition.

Indeed, the court acknowledged the lack of any clearly analogous historical tradition. Undeterred, the Tenth Circuit stated that the Supreme Court “never said the lack of a distinctly similar historical regulation is dispositive on the constitutional issue.” The problem with the court’s statement is that while the Supreme Court did not require a historical twin for the statute under consideration, it certainly did require a relevantly analogous historical legislative tradition. The Tenth Circuit went further and stated that the lack of an analogous historical tradition was not really significant because earlier legislators may not have “maximally exercised their power to regulate.” To the Tenth Circuit, the absence of any analogous historical tradition is not significant because the earlier legislators might have thought they had the power to disarm individuals for a number of reasons but chose not to do so. This type of judicial speculation is not consistent with the Supreme Court’s “how” and “why” test, because the “how” and “why” test actually requires a historical tradition to work. Further, basing an analysis on the absence of a historical tradition invites courts to speculate what legislators, in the mid to late 1700s, thought they could regulate with respect to the possessing and carrying of firearms. The fallacy with the court’s analysis is that the legislative tradition shows how the legislators chose to address societal problems. Inferring that legislators believed they could restrict the right to keep and bear arms from their silence on an issue is an invitation to engage in rank speculation. Rank speculation is not an appropriate way to define constitutional rights.

Even this lax test did not get the Tenth Circuit very far, because it did not have any evidence that legislators in the mid to late 1700s believed they had the power to limit the right to keep and bear arms in ways analogous to Section 922(g)(3). The court ignored these obvious problems and chose to once again reframe the Second Amendment issue as to whether legislators could enact forward looking legislation to bar certain groups from having firearms, even if members of the targeted group had not done anything unlawful or demonstrated a history of violence.

The court then finally asked whether laws existed around the time the Second Amendment was enacted that disarmed broad groups of people whom the legislatures deem could be “dangerous” in the future. The court turned to three sets of laws: (a) the English Milita Act of 1662, (b) the Loyalty Oath laws that some of the colonies enacted during the revolutionary war, and (c) laws that barred Catholics from possessing firearms. None of these laws support Section 922(g)(3).

A. The Milita Act

The English Milita Act of 1662 allowed a government official in England to disarm any individual whom that official “shall judge dangerous to the peace of the kingdom.” The first obvious question is why a law enacted in England more than 100 years before the Second Amendment was adopted is in any way relevant to the Second Amendment’s scope. The colonists rebelled against England and fought for their independence because they did not like the English constitutional order and the infringement of the colonists’ fundamental rights.

Further, the court’s reliance on the Milita Act was misplaced given the Milita Act’s history. From 1642 to 1651, England was convulsed by a bloody civil war that ended with the execution of King Charles I. After King Charles I was executed, Oliver Cromwell who was a key leader of the republican forces in the civil war became “Lord Protector” of England and ruled England from 1653 to 1658 (when he died). After Cromwell died, the Stuart monarchy was restored to power in 1660 with the crowning of King Charles II. About two years later, the Milita Act was enacted so that the restored monarchy could disarm its political opponents. After the Stuart monarchy was overthrown in 1688, the Milita Act was replaced by the English Bill of Rights.

The Milita Act’s purpose, or its “why,” was to give King Charles II the power to persecute his political opponents. To hold the Milita Act up as a model for what an American legislature can do consistent with the Second Amendment is constitutionally obscene. According to the Tenth Circuit’s logic, Congress could disarm any member of a rival political party on the specious claim that those individuals are “dangerous.”

In terms of just the “why” test, the Milita Act was not enacted to address the public or private consumption of alcohol or drugs. There is no connection between the Milita Act and Section 922(g)(3). The Tenth Circuit claimed the connection only exists if one looks at “dangerousness” as some metaphysical concept. Metaphysics, however, has no place in constitutional analysis. The “danger” addressed by the Milita Act was that people who fought against the monarch during the English Civil War might want to continue the fight or might resist new encroachments on their liberty by the restored monarchy. Section 922(g)(3) was designed to keep firearms away from drug users on the belief that they might misuse firearms as a result of their drug use.

B. The English Anti-Catholic Laws

The court also points to laws in England that were enacted in the wake of the Glorious Revolution of 1688 that disarmed Catholics (about 100 years before the Second Amendment was enacted). The Glorious Revolution of 1688 had a number of causes, but one was the belief that King James II had a child who was going to be raised Catholic. This was unacceptable to English Protestants given England’s break with the Catholic Church more than 100 years earlier under the reign of Henry VIII. The laws disarming Catholics in England were, like the Milita Act, enacted by English monarchs to persecute the Crown’s political enemies. This is not a law that should have any place in American constitutional law.

Further, the anti-Catholic laws do not satisfy the “why” analysis. At best, the anti-Catholic laws were based on the belief that Catholics in England had a proclivity to disloyalty given their allegiance to the Pope and the Stuart monarchy (which was overthrown in the Glorious Revolution). Section 922(g)(3) has nothing to do with the loyalty of drug users to our Constitutional republic.

C. Colonial Anti-Catholic Laws

The court then finally turns to laws enacted by Viginia (1756), Maryland (1756) and Pennsylvania (1759) that disarmed Catholics. When these laws were enacted Virginia, Maryland and Pennsylvania were English colonies and were fighting with England a worldwide war against France. France was a Catholic country and had extensive possessions west of the Allegany Mountains (that included Western Pennsylvania) and what we now call Canada. The British fought the French and their allies in western Pennsylvania with troops from Virginia and Maryland. It was during this war, as a wartime measure, that the anti-Catholic laws cited by the Tenth Circuit were enacted. How these laws have anything to do with disarming people who use illegal drugs is not explained.

The connection is nonexistent between the three anti-Catholic laws and Section 922(g)(3). The court claims that the anti-Catholic laws were designed to disarm “dangerous” people, just like Section 922(g)(3). Using this level of generality would render the Second Amendment meaningless. All a legislature has to say is that a law is trying to disarm “dangerous” individuals, which is then both the start and end of the analysis. This is not constitutional analysis but constitutional abdication.

D. The Loyalty Oath Laws

Finally, the court turns to a number of state laws that were enacted during the American Revolution. These laws disarmed “loyalists” who refused to take an oath of allegiance. Given that these colonies were actively at war with England and many loyalists in America fought with the English against their fellow Americans, disarming loyalists who refused to take the oath of allegiance was necessary wartime measure. These laws have nothing to do with Section 922(g)(3) that deals with people who in peacetime use drugs.

Conclusion

In Harrison, the Tenth Circuit played lip service to the Supreme Court’s Bruen decision. The Tenth Circuit deconstructed a few laws and concluded that because at a very high level of generality they disarmed people who were deemed “dangerous” in times of war, or were targets of political repression, the government possesses an open-ended ability to disarm anyone it decides is dangerous for any reason. The court ignored what made the targets of the Milita Act and English anti-Catholic laws “dangerous” in the eyes of the monarchy. As with the colonial laws, the court treats the concept of dangerousness as some type of metaphysical substance that has a universal meaning that can apply to any law at any time.

The Tenth Circuit’s reasoning renders the Second Amendment meaningless. The “how” and “why” test means nothing if some laws enacted by the English monarchy in the mid and late 1600s to allow the persecution of political opponents can justify a modern law that criminalizes the possession of firearms by individuals who use, in some manner, illegal drugs. Nor do a few colonial wartime laws that disarmed individuals who might actively fight for the enemy justify in any conceivably rational way a law that criminalizes the possession of firearms by an individual who uses illegal drugs. Under the court’s analysis, the government could disarm various religious, ethnic or racial groups on the ground that they are “dangerous.” The Tenth Circuit’s analysis is a full-throated effort to turn the Second Amendment into a meaningless right.