Recreational Substance Users May be Disqualified from Owning Firearms Under Unclear Guidelines
In United States v. Harris, 144 F.4th 154 (3d Cir. 2025), the Third Circuit Court of Appeals considered whether a Pennsylvania statute prohibiting possession of a firearm for a person unlawfully using or addicted to a controlled substance violated the Second Amendment. The court was asked to consider whether the statute required individualized judgements by the district court and whether the law was written in such a way that was impermissibly vague as it applied to Mr. Harris. The court found that the statute did not violate the Second Amendment, did require the district court to make individualized judgements, and that the statute was not impermissibly vague.
Facts of the Case
Erik Harris purchased three pistols in Pennsylvania over a short period of time. Despite being a frequent user of cannabis, he indicated “no” on federal forms asking whether he was addicted to or was an unlawful user of a controlled substance. Mr. Harris reportedly lost one of his guns while intoxicated by both alcohol and cannabis, then reported it was stolen and bought a replacement, filing the same federal form. The missing gun was later found with an individual convicted of a felony, which led to Mr. Harris being questioned. Mr. Harris then vaguely admitted to regular cannabis use. The U.S. District Court for the Western District of Pennsylvania charged Mr. Harris with several counts for possessing guns as an unlawful user of drugs. He appealed.
Ruling and Reasoning
The Third Circuit employed a two-step test focused on the Second Amendment’s “text and historical understanding” to assess whether Mr. Harris’ conduct is protected by the letter of the constitution and whether or not disarming him would be in line with historical tradition and similar precedent or “historical analog” (Harris, p 157). The first step of the test was satisfied, as the Second Amendment presumptively protects Mr. Harris’ right to own a gun, as “drug users who are adult citizens are among the ‘people’ who fall within [the] scope” of the amendment (Harris, p 157). Using the analogs of alcohol and mental illness, the court identified the vested interest of the government in disarming individuals who are (voluntarily or involuntarily) impaired in their judgment and behavior (or otherwise demonstrated an altered mental state) to the extent it may endanger others. In this context, the court asserted that history and tradition thus supported the constitutionality of disarming drug users who would pose a risk to others. The Pennsylvania statute specifically defined unlawful use vaguely, such that it temporarily bars a person from possessing a gun shortly before, during, or after using drugs. Given the statute’s burden is temporary and only imposed in regard to whether there is active regular drug use posing an increased risk of danger, the second step was satisfied.
The court remanded the district court ruling regarding the constitutionality of the statute as it applied to Mr. Harris, under the argument that the district court considered insufficient evidence regarding the nature and frequency of his use. The court delineated a (nonexhaustive) number of factors that the district court should consider in determining an individualized assessment of drug-related risk, including length and recency of use relative to the drug possession, the drug’s half-life, psychological impacts of the drug, likelihood of the drug to induce psychosis, the drug’s interference with a user’s perception of impairment, and long-term physical and mental effects. The court held that, in making an individualized probabilistic assessment of danger, there need not be a concrete threat or history of harm to justify disarmament, as there was a presumption that drug use could lead to irresponsible or risky behavior (because of its impairing nature) when considering the factors delineated above.
Regarding Mr. Harris’ claim that the Pennsylvania statute is impermissibly vague on its face, the court found this to be unfounded. First, as a rule, defendants are not allowed to challenge a statute on face value and are limited to challenging a statute’s application to their specific case. Secondly, applied to Mr. Harris, the court determined that the term “unlawful user” was not impermissibly vague because it fell squarely within the plain text. Specifically, federal and state law at the time prohibited cannabis use, making his conduct unlawful. Further, his admission to smoking cannabis at least “several times” per week, including the night before his third purchase, was frequent enough to determine him a “user.”
Dissenting Opinion
Justice Ambro provided a dissenting opinion, in part, concurring with the majority’s opinion to remand the question of whether the Pennsylvania statute was appropriately applied in Mr. Harris’ case. Justice Ambro’s dissent centered on whether the majority appropriately considered the assessment of dangerousness in determining whether an individual who uses drugs should be disarmed. Specifically, the dissent questioned whether the majority opinion set the bar for dangerousness too low and would encompass too broad of a category.
Discussion
Two important psycho-legal questions arise from Justice Ambro’s dissent. First, the opinion raises the question of how cannabis use affects a user’s dangerousness with respect to the user’s ability to safely bare arms. To understand this, we should obtain a clear understanding of the medical and psychiatric impact of cannabis (tetrahydrocannabinol (THC)), both in the context of intoxication and its long-term effects. Per the DSM-5-TR, cannabis intoxication is generally known to cause psychomotor slowing and impaired motor coordination, difficulty concentrating or brain fog, perceptual disturbances (i.e., hallucinatory experiences), delayed reaction time, impaired judgment, memory lapses, euphoria, paranoia, and others. In some cases, and particularly for individuals already vulnerable to a psychotic illness (e.g., bipolar disorder, schizophrenia), cannabis intoxication can result in the onset of more severe psychotic symptoms, including hallucinations, disorganized thoughts and behavior, paranoia, and mild delusional beliefs. These symptoms are typically transient but can persist through the withdrawal period and for short periods of time following sobriety. Long-term impacts of cannabis, particularly for chronic users, can vary but may include impaired attention span, psychomotor slowing, low-level paranoia, and brain fog. Given these psychophysiological effects, one could see how acute cannabis intoxication may impair a person’s ability to reasonably and safely handle a firearm. For example, as in the case with Mr. Harris, a person under the influence of cannabis may absent-mindedly leave the weapon out where it could be misplaced or stolen. In regard to other matters pertinent to Harris, how the legal system can determine “permanent” dangerousness in the context of acute cannabis intoxication is challenging, particularly when referring to a temporary state. As discussed in the majority opinion and dissent, it is unclear whether this would be different than how we treat alcohol intoxication or use. Particularly now that cannabis has been legalized in an increasing number of states (including Pennsylvania as of June 2025), future courts may determine whether use alone prequalifies a person as risky under the law.
Second, courts must also consider what standard should be used when determining a specific individual’s risk. As Justice Ambros notes, an unclear bar for chronicity and frequency of use may lend itself to judicial overreach and violation of a person’s Second Amendment rights. This is a question most commonly answered retrospectively, in response to an acute concern. A court may decide to make this type of risk determination, using similar standards set out in the Harris case.
Similar to violence risk assessment, a forensic evaluator could also theoretically make an individualized assessment of a person’s risk relative to a specific outcome (i.e., future physical violence), establishing a specific nexus between a given person’s use of cannabis with the person’s risk of dangerous use of a firearm. Given the unique expertise of forensic clinicians in assessing risk and diagnosing substance-related disorders, it may be beneficial for the courts to request a formal evaluation, although this poses further logistical concerns. A parallel process, which may be beneficial in this context, can be taken from a Massachusetts example, under Mass. Gen. Laws Ann. ch.140 §121F (2025), wherein a person is barred from owning a firearm if the person has previously been subject to Mass. Gen. Laws Ann. ch.121, §35 (2025), which authorizes commitment to a treatment facility based on risk determined by a mental health professional to be caused by substance use. Although not all states make use of statutes similar to §35, it may be most prudent for legislatures to consider some assessment of prior functional risks related to substance use. At the level of primary intervention (i.e., prior to purchasing a firearm), federal forms could potentially incorporate an indication of history of substance use treatment or other substance-related court sanctions.
- © American Academy of Psychiatry and the Law
