U.S.A. –-(AmmoLand.com)-– On May 20, 2022, the defendant, Jared Michael Harrison, was pulled over by the Lawton Police department for an alleged traffic violation. The officer smelled marijuana. Officers searched the car and found some marijuana and a pistol. Harrison was on bond from Texas and was wearing an ankle monitor.
Harrison was arrested and is awaiting trial. There are pending state charges. On August 17, 2022, a federal grand jury returned an indictment for possessing a firearm with the knowledge he was an unlawful user of marijuana, in violation of Statute 18 U.S.C. § 922(g)(3).
Harrison argued, among other things, the charge violated the Second Amendment under the Supreme Court Bruen decision. The United States District Court for the Western District of Oklahoma, Judge Patrick R. Wyrick presiding, heard the case. The court is in the jurisdiction of the Tenth Circuit Court of Appeals.
The Court found the prohibition on the possession of firearms as an unlawful user of marijuana was unconstitutional because there is no historical tradition of removing the right to keep and bear arms from people who use intoxicating substances. Here is a summation of the Court order. From the order, p. 1:
Before the Court is Defendant Jared Michael Harrison’s Motion to Dismiss the Indictment (Dkt. 17), which argues that the statute he is charged with violating, 18 U.S.C. § 922(g)(3), is unconstitutionally vague, in violation of the Due Process Clause, and unconstitutionally infringes upon his fundamental right to possess a firearm, in violation of the Second Amendment. For the reasons given below, the motion is GRANTED.
Here is the exact wording of the statute in question. From Law.cornell.edu, 18 U.S.C. § 922(g)(3):
(g) It shall be unlawful for any person—
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The court noted the ban on possession is fairly recent and was not enacted until 1981. From the opinion p. 5:
Section 922(g)(3) does not have deep roots; it wasn’t enacted by Congress until the Gun Control Act of 1968. The statute initially prohibited any individual who was “an unlawful user of or addicted to marihuana or any depressant or stimulant drug . . . or narcotic drug” from receiving a firearm, but it was amended in 1986 to broadly prohibit the receipt or possession of a firearm by any person who “is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).” In its modern form, § 922(g)(3) thus strips a person of their fundamental right to possess a firearm the instant the person becomes an “unlawful user” of marijuana. And in the United States’ view, all users of marijuana are “unlawful users.”
Without a historical tradition of infringing on rights protected by the Second Amendment of those who use intoxicating substances, the statute is unconstitutional. From the order, p. 7
The question here is thus whether stripping someone of their right to possess a firearm solely because they use marijuana is consistent with the Nation’s historical tradition of firearm regulation. If it is not, then § 922(g)(3) cannot be constitutionally applied to Harrison—no matter the reasonableness of the policy it embodies.
The court goes on to show while there were occasional laws prohibiting possession or use of firearms while intoxicated, there were no laws prohibiting possession of firearms merely because the possessor used intoxicating substances. The previous laws, which were not common, only prohibited carry or use in very narrow circumstances, sometimes only on very narrow dates, such as December 31 to January 3rd.
In short, there is no historical tradition of banning the right to keep and bear arms simply because a person uses intoxicating substances. The conclusion of the court is clear. From the order:
Because the Court concludes that 18 U.S.C. § 922(g)(3) violates Harrison’s Second Amendment right to possess a firearm, the Court declines to reach Harrison’s vagueness claim. The Motion to Dismiss the Indictment is GRANTED. Accordingly, the Indictment is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED this 3rd day of February 2023.
The court noted the late provenance of the ban, which did not occur until 1986. This shows how the slippery slope works in practice.
There was no such ban in 1938 when the first list of federally prohibited providers was created. The “users or addicted to” group was added in 1968. It only applied to receiving firearms, not to possessing them. Finally, the group was significantly enlarged in 1986, and the prohibition was enlarged to include mere possession.
The slippery slope facilitating many infringements on rights protected by the Second Amendment has moved court jurisprudence a long way since 1942. The Supreme Court has an originalist and textualist majority for the first time in 80 years. They are beginning to uphold the Second Amendment as written.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
Bye bye NFA, GCA, background checks, etc. as all are UNCONSTITUTIONAL infringements, and besides, they do NOTHING to prevent murder or armed crime.
Your lips to God’s ears.
My Bubby used to say that.
She also said “Don’t talk with your mouth half full. Wait til you fill it up.”
God rest her soul.
The federal ban on marijuana is unconstitutional. These powers are reserved to the many states. Once we dislodge the Commerce Clause from the posterior of wanna-be justice John Roberts we can once again set this all right.
Obviously the Fed Gov was using an ex post facto approach on this ban. A lot of the laws in the 1930’s (eg:NFA) are flagrantly unconstitutional.
“All
lotof the laws in the 1930’s (eg:NFA) are flagrantly unconstitutional.”FIFY
I’m cautiosly optimistic about all the court challenges to the “brace ban”. I’m not holding my breath, but it’s a hell of a can of worms we have finally managed to pry open, and it could result in a massive upheaval to some or all of the NFA.
Dean, THIS is a most alarming and fantastic piece you provided society in what is the true depth of the rights freedom and liberty here in America. The Second Amendment, nor anywhere else in the Bill Of Rights does it state ANYTHING about intoxicants and firearms, transporting, carrying, uses or possession of either. Which, in it’s tenderness as we now see it, totally dissolves the abrogation of rights caused by the GCA and the NFA as well as their babysitters, the BATFE. HOWEVER and lest we ever forget, “With freedom goes responsibility, a responsibility that can only be met by the… Read more »
How many old movies have we seen where the bad guy was let out of prison after serving his time, and the guards give him back his gun on his way out the door? I think that was a common practice at one time.
That was in a time when our judicial system punished, but then you could choose to learn from your mistakes and get on with your life. For too many decades now, you make a mistake and they ensure you can never fully recover from it.
Or they just return you to the streets to repeat those same crimes over and over again, assuring you permanent housing within our jail system.
That too! That is the choice a convict has to make when they get out, for sure. I believe on those who genuinely want to change having the means to defend themselves from whatever.
Yeah Grunt, and they don’t bother to even put them in jail or make them pay bond unless the crime is steep enough. That way they can continue to rob and steal until someone shoots their sorry asses.
Those become antifa/new black panther leaders.
with better skills for having been in prison
A sin can be forgiven from what I read in my Bible. I am so glad that if I repent an turn away from the sin or crime it should be forgiven
No victim, no crime. Working on the “Sabbath” is not a crime because no damaged party can come into court to claim the damage. Same with “have no other God’s besides me” and a couple other of the 10 commandments. The last FIVE have victims.
This is TRUE and can’t you just see it on Facebook. 0H facebook !!!! WOW !!!! If you read it about on facebook it must be true. The biggest GOSSIP on earth! One story here, another there and bang you are a criminal. Gossip gossip gossip. Facebook sucks. I give it nothing and take nothing from it.
Properly called “Fakebook” or “Fascist book”
I joined reluctantly about ten years ago at the nagging of some friends. About 2-3 months later, the invasiveness of Fecebook got to be a bit much and I dropped it. I haven’t looked back.
I’ve never been there.
We will make it so again. Only while in prison may the gov withhold your arms.
That would be fine by me. I think most of us are painfully aware that the name of the game anymore, is to make as many citizens as possible into “prohibited persons” or otherwise deny them their gun rights. So many “crimes” these days are felonies or have a “felony” aspect such as “felony jaywalking”, something I expect to see any day now, where some poor soul has been charged with it.
There’s no way to rule innocent men. The only power government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. ~Ayn Rand
Well put!
A most basic Truth.
This is why the founders entered the issue about laws v=becoming repugnant in the Constitution and the 10th amendment limiting powers of congress and leaving all else to either the states or the people.
Felony Mopery With Intent to Gawk.
…and your crack pipe and heroin kit.
Yes, it was his property and the state has no right to keep it without just compensation.
How many were HUNG or shot and never made it to the point of getting their guns back? We have to look at where, “punishment”, responsibility and duty is headed in this nation as MANY that committed heinous crimes in the past NEVER returned to the streets! There wasn’t much liberal logic in the justice system back then. It was hard-core justice. Even for stealing a horse…
Good points, Grunt! Sadly, our current system is designed to warehouse some of the worst, indefinitely. Other bad ones get out to repeat offend. Hopefully, the repeat offenders enjoy a short life span on the outside.
Agreed
Wyatt Earp was one.
Wasn’t one of Wyatt Earp’s elections stolen when one of the Clanton clan stuffed the ballot box?
doc holiday was another, as per bill oreilly’s legends and lies, the real west. seems everybody was arrested at one time or another.
You had a lot of the reverse as well; think Tom Horn.
Up until the 1968 Gun control act firearms were returned to the now considered EX felon.
…and crime didn’t seem nearly as bad back then, pre-68!
Why wouldn’t you return the citizen’s property after he has paid his court appointed debt to society?
The ATF has set a precident with the illegal Hunter Biden handgun purchase and now they are about to reap what they have sewn .They will get thier asses sued off now for discrimination or for denying equal protection under the law for charging anyone who smokes weed and possesses a gun due to the fact they gave Hunter and his crack pipe gun purchase a free pass .
Tell THIS to the crackheads, heroin users and fentanyl freaks. WE have a deep learning curve in these matters to be ever so aware of those around us that are exercising their rights to not infringe on ours!
Freedom is dangerous, but worth it.
It would continue to be against the law to use a firearm in a criminal matter while in possession of a firearm. It is illegal to possess (drive) an automobile while under the influence of alcohol or drugs but it is not prohibited to own or possess an automobile. The commission of a crime is what is prohibited under the law, not the possession if no crime is being committed.
Btw I have arrested people who committed a criminal act while in possession of their vehicle but I could not confiscate their vehicle only have it held until their release.
It’s all according to the “criminal matter”. If the criminal matter is having some marijuana on your person, that would be bullshit. CRIMES need a victim. How many people have you arrested that had not harmed anyone for doing what they were doing? Did you know that more SOBER people have automobile accidents than intoxicated ones? The circumstances of ANY automobile “accident” should be considered.
But there victims when someone uses drugs: Immediate family are effected financially and emotionally; taxpayers are effected by the user’s medical costs; people that are robbed and injured by users that need money for their next fix; and society in general suffers by the conditions that result from each of these circumstances.
Does that apply to “possession” of a “Unregistered Silencer”? Or how about a short barreled rifle? Or a concealed handgun without a license? I do believe we need to throw out ALL those ridiculous bullschiff laws.
This is true, but you still have to realize that society as a whole would still face a huge learning curve in returning to a truly free society. Citizens have been sorely sensitized to many social issues. I can remember as far back as the mid 60’s when every car accident made the front page, all the gory reality. No bodies were covered-up and just plain reality for all to see, until one day a relative of an accident victim sued… Then the reality and gore was removed from the newspapers. One issue after another, lawsuit after lawsuit, mostly based… Read more »
Sound like Geraldo Rivera.
All feelings and no facts.
Amen!
Perhaps remove the vehicle from the equation and just focus on the junkie, his firearm, strolling freely amongst the citizenry in a downtown metropolitan area.
Tell them what, Boss? Most of those individuals can’t be told anything. Especially here in the west coast LaLa land. I heard the mayor of Federal Way, Washington tell a radio announcer about his day testifying before the legislature concerning fixing a Washington Supreme Court decision called The Blake Decision, that effectively legalizes ALL DRUG possession. https://snohomishcountywa.gov/6065/State-v-Blake-Refunds The Honorable Mayor testified how this decision is ruining this state’s cities and towns. He mentioned one incident in his city where a couple of homeless, unhoused or whatever the lib’s want to call the criminal drug vagrants, stole a sofa, graffitied it… Read more »
I lived in Seattle part time for a long time, because of the beauty of the area, but finally relinquished my connection a few years ago to live full time in Texas. The contrast between the supreme dignity of the trees and waters, and the dislocated consciousness of the culture, I could not resolve. It may be one of the last to come around but I do believe it will be redeemed as it were. Clif High offers an awesomely, intelligent sensible voice from Western Washington, writing constantly to the government with his Vox Populist series…
I live about an hour north of seattle. As much as I’d love to see the city council replaced with reasonable people, I don’t think that’s what’s happening. I can’t see kshama and friends giving up their little hold on “power” unless they’re getting something better in return. I think we’re going to see them rewarded by their overloads, for a job well done, with higher office positions in 2 years. They have to leave city council now because of how rough around the edges they all are. They need some serious grooming before entering the national stage. Once they’re… Read more »
Let it go – that city is long overdue for a 7.0+ Magnitude Quake anyway..combined with a good Mt Ranier eruption, problem solved. And yes, I lived in that bizarre-o-world state for almost 13 years. Eastern Washington used to be pretty nice. Now? With all the freaks and geeks moving from California into Western Idaho, NE Oregon and Eastern Washington – Not So Much. But good luck to ya. I’ll stay right here in the Blue Ridge Mtns of NC…
I Don’t care what people do in the privacy of their own home. If you use drugs on the street or in front of children you should be removed from society. Dead is best case scenario.
Also if you are not a productive member of society then see above resolution.
Also to you idiots that give these fucktards money on the street. See above resolution.
Does that go for smokers and drinkers?
Watch for another post to you Gruntman, the moderators decided I chose a bad word in my reply to you, and they now must give me a mother May I approval. Grrrrr.
Which bad word was that?
Shame on you! What bad word did you use? Was it something like, “Oh poop!”? I also lived in the Snohomish County area when I got out of the service. I recall sleeping in the back of my van when Mt St Helens popped her cork. I was there until I decided I had enough of the grey skies and gloomy weather, always reading about the high suicide rates. About the biggest things going on back then were the annual rush for the Magic Mushrooms that occurred in Eby Slough, right over the fence in my back yard. That and… Read more »
You made a point about why I think liberals like living here, when in fact this is a sportsman’s paradise, or once was, and we all know libs are not sportsmen, unless you count soccer, which I don’t. They come for the dark, gloomy rainy days that generate depression or the invented term, (probably discovered/invented here), S.A.D. Seasonal Affective Disorder. It’s a perfect environment for a basement dwelling dweebs. We have quack doctors who specialize in treating SAD, the treatment consists of having a portable lantern you turn on, on the dark days! Can you give me a big SNOWFLAKE… Read more »
THIS is the typical Washingtonian attitude that was prevalent when I was there back in the early to mid 80’s when I decided I had enough of the children running to infrastructure and relocated to the DFW area of Texas. Wasn’t much different, only larger and more spread-out area with pockets of reality here and there. It’s truly sad to see such a beautiful state turn into a moronic wasteland run by people that destroy their brain cells for sport.
As long as the “crackheads, heroin users and fentanyl freaks” harm no one but themselves, who should give a rats behind?
We must not ignore the fact that addicts not only ruin their own lives but also ruin their families, create medical costs, engage in crime, support socialism because they can not support their habit or themselves, and they … vote.
I think that we will be at war with China in a couple of years and will not be able to, as a society, support addiction.
That’s fine as long as I can out draw them when they come for my wallet to feed their need.
Awesome!
Says the jacked-up Gang-Banger Union and Street Thugs Association.
“With freedom goes responsibility, a responsibility that can only be met by the individual himself. Ronald Reagan Favorite “The quotable Ronald Reagan: the common sense and straight talk of former California Governor, Ronald Reagan”.
Thanks for the citation, much appreciated!
If the person is not safe to be among the community he should not be let loose. It he is safe enough then he gets ALL of his rights,
Exactly, but remember, “intoxication” can also be heroin, crack, PCP, etc.
“Exactly, but remember, “intoxication” can also be heroin, crack, PCP, etc.”
So? He could have been in jail for armed robbery. Either way when he has served his sentence all rights should be restored.
Yes, however, when you are dealing with narcotics and other intoxicants you are also dealing with each individuals’ metabolism and how each person’s system and brain deal with these intoxicants. The judicial system would be releasing a body into society without having any way of knowing what is going on in that individual’s brain due to the level of use of the intoxicants. We also had insaneasylums wherre the state would hold people. Up until the days that it was decided to save money the states shut them down and turned the patients lose. Hell, about 20 of them made… Read more »
And so go the ones that were in prison for years and they were determined to be safe enough by a board of psychologist and Dr’s that set them free and then the next thing you know they killed the whole damn family next door. Who was it that determined he was legally safe to let out of prison and who is held responsible then. Freedom does indeed come at a cost.
That “whole damned family next door” should have had guns. Or used them better.
Been saying it, and catching flak, for years.
Yes, with freedom goes responsibility. Prohibition of anything not only infringes on freedom but also makes said thing much more dangerous. Any law that creates a “prohibited person” is not only an infringement but a dangerous precedent that tends to lend legitimacy to creating more laws that prohibit more people from exercising their rights. I don’t know that I would be quoting Reagan when it comes to freedom or arms considering he was one of the biggest proponents of not only dictating what adults can choose to possess and ingest but also arms laws and he enacted two of the… Read more »
If I remember correctly congress and then the senate put those acts on Reagans desk to sign and Reagan was pretty much a “will of the people” kind of guy so he would often times abide by the will of the people rather than try to dictate to us.
Yes, as with any act, Congress sends it to the president. Does that mean it was the “will of the people” to violate the constitution? Does your claim of Reagan being a “will of the people kind of guy” absolve him of his oath to the constitution?
Ron and Nancy Reagan coined the phrase ‘just say no!’ for their anti drug program.
This is true, for drugs, not guns.
Judges should simply rule that anything that violates SHALL NOT BE INFRINGED is unconstitutional. It would make everything a lot simpler.
One exception..seriously. A REAL HONEST TO GOODNESS FELON in a cage can’t possess a firearm.
Yes, I have been asking myself why judges don’t do that for years. The fact is that they have. It is just the judges that do not see “the people” as equal that rule against the Second Amendment.
But… what does this mean? Really? Will the ATF remove it from the 4473? Will it change how I do business as an FFL? What happens now, if anything?
I think it will be ignored by the feds/ATF, and remain the status quo.
Very little enforcement or sanction attached to government malfeasance.
How about people that cuss? Have liberals thought to restrict their gun rights yet???
I doubt that will happen. The liberals may be the worst offenders.
When you pry them from my cold, dead hands, damn’it!
So it is essentially ex post facto by the feds on the Cannabis prohibition for firearms, it just gets better and better. I wonder if Jefferson would have been banned because he was a hemp grower? The Ferals have no constitutional authority to ban any substance.
This is about pot, not about the drugs you’re talking about. It would still be a crime to use a firearm while impaired.
No if you read the story it is about being “intoxicated” while in possession of firearm.
Ah, the taste of warm mescal, with a hot wind blowing grit in your face, on a cracked Nuevo Laredo sidewalk.
Holy shades of Louis Lamore!
Great Article Dean! Amazing what issues some courts are actually right these days. Now, ob top of all the 2A issues we need to sort out and correct, you can add that abominable Interdtate Commeece Clause, which is so grossly abused.
The cool thing about most crack/meth addicts by my observation; if they ever had a gun, they didn’t have it long as they necessarily sold or traded it to buy more stuff. Their need for the next fix is that strong. As with all criminals, if they really want a gun, whether the law allows it or not. Therefore worrying about legalizing possession of a weapon by users or released felons is really a moot point.
THIEF not THEIF
jus’ sayin’
Have a good day!
Doc Holiday:
I know…….Let’s have a spelling contest.
Lol. Best movie ever. Almost.
If you were to try and explain that to parents of dead relatives that were just murdered by a crackhead I am sure you would hear the opposing points of view.
Hi Grunt. Not saying it doesn’t happen, but I don’t recall any murders by crackheads when I was on the job. As previously noted, any good weapons they might ever have possessed, they quickly sell or trade for more product. Hell, one state agency I worked for, we were the police force or security for that agency. Some of us carried our own firearms and liked it that way. A very few were issued take-home sidearms by the department. Still others, had to sign out a gun at the start of the shift and sign it back in at the… Read more »
It’s like a mass shooter. Let’s blame the guns. Not the moron that committed the crime.
I agree, MusicMan! I too hate liars, cheats, and thieves. Glad you got your bass back! One thing that chafes me about LE nowadays is the mission creep that sees them acting as medics, especially when an addict overdoses. Why prolong the misery for society, for the victims of the addict’s crimes, for the addict’s family, for the addict? Let them check out and move on to the next realm and be done with it. It is as though LE is trying to enhance its job security by keeping them alive artificially for a while longer.
Yes.
They can’t afford to buy one legally so it would most likely never happen.
The officer smelled marijuana. Don’t they always. The PIG just got lucky, this time.
I’v been retired a few years, so I’m not really in the loop; but my understanding is that, due to all the legal products on the market that smell like marijuana, such as hemp flower, vape stuff, incenses etc, “smelled marijuana” was no longer a basis for probable cause.
I guess that gets Biden’s crackhead son of the hook.
And in that context, just EXACTLY whom, or what, is the “person” being addressed there? Why doesn’t the law say “Any man or woman” instead? It is because the legal system is in reality a crime syndicate that uses fraud and deception as its normal course of business!! Without using fraud, the legal system would not be able to operate at all!! Looking up the definitions of the word of art Person in any law dictionary, will reveal much to you!!
First name Maxwell?
Hey Ope, will you please show me where you found this sentence you used. ( George Washington. Washington even said he preferred a good pipeful of the “leaves of hemp” to any alcoholic drink.) I’m not doubting your word. I just would like to read this for myself. I have never heard such in any history book or elsewhere in my lifetime. So if its true I would like to read it for myself. Thank you if you will show it to me. Good day to you.
He probably didn’t: https://www.celebstoner.com/news/celebstoner-news/2022/02/21/george-washington-grew-hemp-had-slaves/
Unlikely to gain benefit from hemp smoking as the active ingredient in marijuana is THC which isn’t found in hemp in any significant amount.
Hasn’t Brandon and the lefty governors in the legalized states kinda done the same thing? I know the WEF Stooge we have as governor, has destroyed all the arrest records for marijuana convictions in Washington after Brandon made the suggestion. I believe however, most of the records that were automatically expunged were the protected classes, you know the ones with alphabetic letters attached. While the rest of the nation, except our twins, Kalifornia & New York have gotten the message, our esteemed leaders are traveling down a different road wanting to be smacked down by the Supremes again. Our state… Read more »
Text as informed by History
All I have to say is Fuuuuccckkk Yes! It’s about time.
I have never tried any sort of drug other then a drink of alcohol once in awhile.
I have always felt that it was stupid to prevent people from possession or using drugs or weed. If they commit a crime. Make the punishment strong. Otherwise leave us the F alone!
LOL, Talk about slippery slopes, this decision might let Hunter Biden off the hook for his, possession of a gun while an addict, case that is brewing right now in DC. I have to wonder if there’s a connection. What do you all think?
They may try ti pull a “lied on a government form” rather than focus on the actual use of the drug.
Bruen decision…not the hockey team decision, or the large furry four legged decision. (Don’t be insulted, I’m only messing with ya a little).
Oh? We’re paying attention. We’re also just sitting back and waiting to see when you’re going to make the big move to Texas or Montana?
There ya go…Drunk, Stoned and packing a double stack mag…Now that’s ‘Murican’…LOL
Not nosey assed government. Nosey ass PEOPLE who work for the government. The Government of the US is the US Constitution.
These little nick picky lawsuits by known felons are going to dilute the significance of the Bruen decision.
Not a big fan if liberty I guess.