Case: 21-3031 Document: 68 Page: 1 Date Filed: 11/15/2023

U.S. Department of Justice

Criminal Division
950 Pennsylvania Avenue N.W., Room 1252
Washington, DC 20530-0001
Tel: (202) 307-1982

November 15, 2023

The Honorable Patricia S. Dodszuweit, Clerk of Court
United States Court of Appeals for the Third Circuit
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106
Re: United States v. Erik Matthew Harris, No. 21-3031
Second Supplemental Letter Brief for the United States
Dear Ms. Dodszuweit,
The government respectfully submits this letter brief in response to the questions
posed by the Court in its September 5, 2023 order.
INTRODUCTION
“[D]rugs and guns are a dangerous combination.” Smith v. United States, 508 U.S.
223, 240 (1993). Handling firearms safely requires care, caution, and self-control—
characteristics which are compromised by the psychological and physiological effects
of illegal drug use. Drug users also frequently use firearms to commit other crimes—
including to fund their drug habit, protect their stash, or prevent apprehension—and
may use firearms to commit acts of self-harm. In Section 922(g)(3), Congress sought
to address these problems by temporarily disarming regular drug users and drug addicts.
An individual can regain his ability to possess firearms by stopping his illegal drug abuse.
The government maintains that the Second Amendment allows Congress to
disarm persons who are not law-abiding, responsible citizens. See Gov’t Br. 11-13 (filed
June 10, 2022); Gov’t Supp’l Ltr. Br. 2 n.1 (filed Aug. 7, 2023); see generally U.S. Br. 10-
27, United States v. Rahimi, No. 22-915 (Aug. 14, 2023), cert. granted, June 30, 2023. But cf.
Range v. Attorney General, 69 F.4th 96, 101-03 (3d Cir. 2023) (en banc), petition for cert
pending, No. 23-374 (filed Oct. 5, 2023).1 That category includes persons whose
possession of firearms would endanger themselves or others. See U.S. Br. 27, Rahimi,
supra. Section 922(g)(3)’s restriction on firearm possession by regular unlawful drug

1
The government has filed a petition for certiorari in Range, requesting that the
Supreme Court hold the petition pending the Court’s decision in Rahimi, and then
dispose of the petition as appropriate. See Pet. 7, 25-28, Range, supra. The plaintiff-
respondent has agreed that the petition should be granted.
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users and drug addicts falls comfortably within that principle. As the government has
explained, Section 922(g)(3) is analogous to historical regulations that prohibited
firearm possession by individuals who were intoxicated by alcohol or deemed
dangerous. See Gov’t Supp’l Ltr. Br. 4-10. Historical laws restricting or expressly
disarming persons with mental illnesses further support Section 922(g)(3)’s
constitutionality. This Court should affirm.
ARGUMENT
I. Drug Use, Including Marijuana, Causes Significant Cognitive
Impairments
The Court requested the parties’ views concerning whether “habitual ingestion
of regulated substances, including[ ] marijuana, is analogous to or triggers conditions
analogous to schizophrenia or other mental illnesses or cognitive impairments.” The
answer is yes. And for that reason, habitual drug users may lawfully be disarmed for as
long as they continue to unlawfully use drugs.
Marijuana, the substance at issue in this case, “is a psychoactive drug” that
“derives its psychoactive properties from delta-9-tetrahydrocannabinol (THC), which
exists in varying concentrations in the [hemp] plant.” Nat’l Org. for the Reform of Marijuana
Laws v. Bell, 488 F. Supp. 123, 128 (D.D.C. 1980). When a user smokes or ingests
marijuana, an intoxicating effect may “develop[ ] within minutes” and last “about 3 to
4 hours.” Michael L. Alosco et al., Neuropsychology of Illicit Drug Use and Impulse Control
Disorders, in Clinical Neuropsychology: A Pocket Handbook for Assessment 605, 608 (Michael
W. Parsons et al., eds., 3d ed. 2014). Those effects include cognitive impairments like
altered “perception of time,” “decreased short-term memory,” and “impaired
perception and motor skills.” Nat’l Academies of Sciences, Engineering, and Medicine,
The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and
Recommendations for Research 53 (2017) (Health Effects); see generally Cannabis (Marijuana)
DrugFacts, Nat’l Institute on Drug Abuse, (last visited Nov. 15, 2023),
https://nida.nih.gov/publications/drugfacts/cannabis-marijuana. Marijuana intoxication
also causes mood fluctuations and feelings of euphoria, decreased inhibition, impaired
decision making, and inhibited attention and concentration. Alosco et al., supra, at 608.
When “very high blood levels” of THC are achieved, a person “may experience panic
attacks, paranoid thoughts, and hallucinations.” Health Effects, at 53. Following regular
high-dosage usage, withdrawal symptoms also may include irritability, anxiety,
aggressive behavior, and anger. Alosco et al., supra, at 608; see Ivan Urtis, et al., Cannabis
Use and its Association with Psychological Disorders, Psychopharmacology Bulletin, Vol. 50
No. 2, at 58-59 (May 15, 2020) (“Like schizophrenia, cannabis use is associated with
positive symptoms such as euphoria and paranoia and negative symptoms such as
memory loss.”).
More generally, there is a demonstrated correlation between marijuana use and
certain mental illnesses, although the association is not necessarily causal. Urtis, supra,
at 59-61 (explaining that “cannabis use and the development of psychosis” may be
2
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“linked by an underlying genetic vulnerability” but that, “[d]espite the association that
has been frequently observed between cannabis use and schizophrenia, less has been
done to prove a causal relationship”); see also Nora D. Volkow et al., Adverse Health Effects
of Marijuana Use, 370 New Eng. J. Med. 2219, 2221 (2014). “[C]annabis use disorder
(CUD) is much more prevalent in individuals with mental illnesses like schizophrenia,
anxiety disorder, post-traumatic-stress disorder, and personality disorders.” Urtis, supra,
at 58. Indeed, about “one in every four individuals with schizophrenia has a concurrent
diagnosis of CUD.” Id. at 58-59.
In addition, as the government has noted, despite limiting his claim to Section
922(g)(3)’s application to marijuana, accepting Harris’s arguments necessarily would
cast doubt on the statute’s constitutionality as applied to other controlled substances.
See Gov’t Supp’l Ltr. Br. 7. And although their respective effects differ, it cannot be
disputed that other controlled substances likewise cause serious cognitive and other
impairments that inhibit individuals’ ability to safely use firearms.
For example, cocaine intoxication can cause, in addition to serious physical
effects, feelings of euphoria, hypervigilance, interpersonal sensitivity, anxiety, and
grandiosity. Alosco et al., supra, at 610. When used regularly, cocaine “commonly
results in paranoid ideation, aggressive behavior, anxiety, [and] depression.” Id. And
chronic users “frequently exhibit impairments on neuropsychological tests assessing
attention and executive function, including problem solving, working memory, mental
flexibility, moral judgment, and information-processing speed.” Id. The use of
amphetamines causes similar symptoms, and chronic use “may cause aggressive and
violent behavior in addition to intense anxiety, paranoid ideation, and schizophrenia-
type traits.” Id. at 611. Long-term abuse of heroin has also been found to result in
deficits in “aspects of executive function, learning and memory, attention, and
psychomotor speed.” Id. at 613. Studies note the significant co-occurrence of mental
illness among individuals who regularly use illicit drugs. Substance Abuse & Mental
Health Servs. Admin., Key Substance Use and Mental Health Indicators in the United States:
Results from the 2016 National Survey on Drug Use and Health 45 (Sept. 2017) (finding that
43.4% of adults with a substance abuse disorder also had a co-occurring mental illness).
II. History Justifies Disarming Individuals At Risk Of Such Impairment
Given the impairments caused by marijuana and other illegal drugs, the
temporary disarmament of individuals who regularly use or are addicted to such drugs
fits comfortably within “this Nation’s historical tradition of firearm regulation.” New
York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022).
Section 922(g) “is no minor provision”; indeed, it “probably does more to
combat gun violence than any other federal law.” Rehaif v. United States, 139 S. Ct. 2191,
2201 (2019) (Alito, J., dissenting). And Section 922(g)(3) is one of the most frequently
applied of the law’s disqualifications. Since the federal background-check system was
created in 1998, Section 922(g)(3) has resulted in more than 218,000 denials of firearms
transactions. See Crim. Justice Info. Servs. Div., Fed. Bureau of Investigation, U.S.
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Dep’t of Justice, Federal Denials: Reasons Why the NICS Section Denies, November 30, 1998
– October 31, 2023 (last visited Nov. 15, 2023).2 Indeed, in 2020 and 2021 (the most
recent years for which data is available), the provision resulted in nearly 35,000
denials—more than any other provision apart from Section 922(g)(1)’s disarmament of
convicted felons. See Crim. Justice Info. Servs. Div., Fed. Bureau of Investigation, U.S.
Dep’t of Justice, National Instant Criminal Background Check System Operational Report 2020-
2021, at 19 (Apr. 2022). 3
The Court asked the parties to address “whether historical precedents . . . support
disarming those with” habitual drug “habits, addictions, impairments or mental
illnesses.” Historical practices which authorized legislatures to disarm categories of
persons whose possession of firearms would endanger themselves or others—including
precedents permitting the disarmament of those intoxicated by alcohol or those deemed
dangerous, as well as those with mental illnesses—provide ample support for Section
922(g)(3)’s constitutionality.
A. Historical Laws Disarming The Intoxicated And Other Dangerous
Individuals Justify Section 922(g)(3)
As the government has explained, legislatures historically restricted gun
possession by those intoxicated by alcohol and those deemed dangerous. See Gov’t
Supp’l Ltr. Br. 4-10. Those historical practices justify disarming individuals, described
in the Court’s order, whose drug use impairs their cognition and otherwise renders them
a potential danger to themselves or others if armed.
Drug users may mishandle firearms—or use firearms to commit crimes—
because of “drug-induced changes in physiological functions, cognitive ability, and
mood.” Harmelin v. Michigan, 501 U.S. 957, 1002 (1991) (Kennedy, J., concurring in part
and concurring in the judgment); see Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 332
(2012) (“The use of drugs can embolden [individuals] in aggression.”). Indeed, illegal
drug users often “commit crime in order to obtain money to buy drugs,” and thus pose
a danger of using firearms to facilitate such crime.4 Harmelin, 501 U.S. at 1002
(Kennedy, J.). In the years before Section 922(g)(3)’s enactment, President Lyndon B.

2
Available at: https://www.fbi.gov/file-repository/federal_denials.pdf/view.
3
Available at: https://www.fbi.gov/file-repository/nics-2020-2021-operations-
report.pdf/view.
4
See also, e.g., Ramirez v. Collier, 595 U.S. 411, 458 (2022) (Thomas, J., dissenting)
(“the brutal slaying of a working father during a robbery spree to supply a drug habit”);
Wong v. Belmontes, 558 U.S. 15, 15-16 (2009) (per curiam) (“bludgeoned [the victim] to
death, . . . stole [her] stereo, sold it for $100, and used the money to buy beer and
drugs”); Smith v. Texas, 543 U.S. 37, 41 (2004) (per curiam) (“regularly stole money from
family members to support a drug addiction”); Buford v. United States, 532 U.S. 59, 62
(2001) (“robberies had been motivated by her drug addiction”).
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Johnson and both Houses of Congress recognized that drug use often motivates crime.5
Violent crime “may occur as part of the drug business or culture,” id., and involve drug
dealers and customers alike. Drug users and addicts are more likely “to have hostile
run-ins” with law enforcement and frequently threaten officer safety, particularly “when
guns are involved.” United States v. Carter, 750 F.3d 462, 469 (4th Cir. 2014) (quotation
omitted). And armed drug users may also endanger themselves. See Health Effects, at
311 (noting that drug users, including marijuana users, pose a higher risk of suicide than
ordinary citizens). In each of these circumstances, guns increase the likelihood and
lethality of such violence.
In his Supplemental Reply Letter Brief, Harris relies significantly on the Fifth
Circuit’s recent decision in United States v. Daniels, which found Section 922(g)(3)
unconstitutional as applied to a marijuana user. 77 F.4th 337, 343-55 (5th Cir. 2023),
petition for cert pending, No. 23-376 (filed Oct. 5, 2023);6 Reply Ltr. Br. 4-8 (filed Aug. 21,
2023). The Daniels panel correctly observed that, despite the Founding era’s familiarity
with intoxication by alcohol, the Founders “were not familiar with widespread use of
marihuana as a narcotic, nor the modern drug trade” and thus “had no occasion to
consider the relationship between firearms and intoxication via cannabis.” 77 F.4th at
343-44. But the panel was mistaken in finding that history and tradition do not, by
analogy, support Section 922(g)(3)’s validity.
The Fifth Circuit suggested that the historical tradition of prohibiting gun
possession by persons intoxicated with alcohol and by persons with mental illnesses
would support modern laws disarming drug users who are “currently under an
impairing influence.” Daniels, 77 F.4th at 349. But the Daniels panel and Harris both
err in arguing that the lack of Founding-era laws disarming intoxicated individuals
generally, even during intermittent periods of sobriety, undermines the constitutionality
of Section 922(g)(3). Id. at 347-48; Reply Ltr. Br. 5-6. The danger to society posed by
an armed drug user extends beyond the risk that he will mishandle firearms while under
the influence of drugs; as explained, drug users are also more likely to use firearms to
commit crimes to fund their drug habit, engage in violence as part of the drug business
or culture, attack police officers who are investigating their drug crimes, and commit
suicide. Those risks justify disarming habitual drug users even “between periods” of
drug intoxication. Daniels, 77 F.4th at 349. Indeed, even if a court were to consider

5
See H.R. Doc. No. 89-407, at 7 (1966) (presidential message) (“Drug addiction
. . . drives its victims to commit untold crimes to secure the means to support their
addiction.”); H.R. Rep. No. 89-1486, at 8 (1966) (“Narcotic addicts in their desperation
to obtain drugs often turn to crime in order to obtain money to feed their addiction.”);
S. Rep. No. 89-1667, at 13 (1966) (observing that drug users can be driven “to commit
criminal acts in order to obtain money with which to purchase illegal drugs”).
6
The government has filed a petition for certiorari in Daniels, requesting that the
Supreme Court hold the petition pending the Court’s decision in Rahimi, and then
dispose of the petition as appropriate. See Pet. 5, 19-21, Daniels, supra.
5
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only the risk that a person will misuse firearms while under the influence of drugs,
Section 922(g)(3) complies with the Second Amendment because drug users who
possess firearms are apt to retain possession while under the influence. This case is an
example: Harris claimed to lose one of his firearms (potentially at a bar) on the same
evening that he smoked marijuana and was drunk. See Gov’t Br. 5-6. Users are unlikely
to put their guns away before using drugs and retrieve them only after regaining lucidity.
And it is unclear how the government could reasonably administer a regime that
permitted confiscation only during the several-hour period a person is intoxicated.
The Daniels panel also contended that historical limitations on the militia were of
limited relevance in assessing “the limits acceptable for the general public.” 77 F.4th at
346; see also Reply Ltr. Br. 5. But as the government has explained, early laws
understandably focused on the militia because social norms at the time restrained
intemperance, there was little public outcry against alcoholism, and the cumbersome
nature of firearms mitigated risks posed by intoxicated individuals who were not
members of the militia. See Gov’t Supp’l Ltr. Br. 6. As those conditions changed,
limitations on the general public, understandably, emerged. Id. at 6-7. 7
Finally, Harris seeks to cabin historical analogues disarming those deemed
dangerous to “political or religious dissidents.” Reply Ltr. Br. 7-8. But as Heller’s
express reference to “longstanding prohibitions” on possession “by felons and the
mentally ill” suggests, legislatures’ authority to disarm individuals was not historically
limited to disarming political dissidents. District of Columbia v. Heller, 554 U.S. 570, 626
(2008). Instead, historical practice supports a broader authority to disarm not only
politically disaffected persons, but also those considered dangerous, more generally. See,
e.g., 13 & 14 Car. 2, c.3, § 13 (1662) (those judged “dangerous to the Peace of the
Kingdom”); Calendar of State Papers, Domestic Series, 1670, at 237 (May 26, 1670) (Mary
Anne Everett Green ed., 1895) (instructions to disarm “dangerous and disaffected
persons”); 1692-1694 Mass. Acts 11-12 (addressing “affrayers, rioters, disturbers, or
breakers of the peace, and such as shall ride or go armed offensively” (capitalization
altered)); 1696-1701 N.H. Laws 15 (same).
B. Historical Limitations On The Mentally Ill Also Support Section
922(g)(3)’s Constitutionality
Independently, because regular illegal drug use poses a risk of impairment,
historical restrictions placed on persons with mental illnesses also establish “a well-
established and representative historical analogue” to justify Section 922(g)(3). Bruen,
142 S. Ct. at 2132-33 (emphasis omitted).
1. Harris rightfully concedes (Opening Br. 14 (filed Apr. 6, 2022)) that

7
The Daniels panel also hypothesized that such militia laws may not have been
strictly enforced. 77 F.4th at 346 n.16. But however rigorously local officials ultimately
enforced those laws, their widespread adoption supports the Founding-era view that
such restrictions did not trench upon the right to keep and bear arms.
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prohibitions on firearm possession by “the mentally ill date back to the founding.” The
Supreme Court has approved of such restrictions, Heller, 554 U.S. at 626; see Bruen, 142
S. Ct. at 2162 (Kavanaugh, J., concurring), and restrictions on those deemed a threat to
public safety because of mental illness—including firearm restrictions—have a
venerable history.
In England, the Vagrancy Act of 1744 allowed justices of the peace to lock up
and seize the property of those “who by lunacy, . . . are furiously mad, or are so far
disordered in their senses that they may be dangerous.”8 See 17 Geo. 2, c.5
(capitalization altered); Richard Moran, The Origin of Insanity as a Special Verdict: The Trial
for Treason of James Hadfield (1800), 19 Law & Soc’y Rev. 487, 509-10 (1985). And in
colonial and Founding-era America, those afflicted with mental illnesses “were generally
treated as if they had been . . . stripped of all . . . their rights and privileges.” Albert
Deutsch, The Mentally Ill in America: A History of their Care and Treatment from Colonial Times
41 (1949).
Colonial America was more rural and dispersed than England, and “lacked large
urban areas and complex institutional arrangements characteristic of” England. Gerald
N. Grob, The Mad Among Us: A History of the Care of America’s Mentally Ill 5, 13-14 (1994).
Some areas even lacked “the luxury of a jail in the early days.” Deutsch, supra, at 41.
Because the “proportionately small number of ‘distracted’ persons did not warrant the
creation of special facilities,” persons with mental illnesses initially “were cared for on
an ad hoc and informal basis either by the family or community.”9 Grob, supra, at 6.
Given these societal conditions, early “legislation usually concerned itself more with
[the mentally ill’s] property than their persons.” Deutsch, supra, at 53; see also Mary Ann
Jimenez, Changing Faces of Madness: Early American Attitudes and Treatment of the Insane 51
(1987) (describing 1694 Massachusetts law which “empowered justices of the peace to
dispose of the estates of distracted persons and use the proceeds to support their
families”). By the end of the 18th century, multiple jurisdictions had enacted laws that
charged those appointed as guardians for mentally ill persons to “take care” of the
person and his “estates, both real and personal”—thus including any firearms the
person possessed—and provided that such property “shall be delivered[ ] and
returned” to the person if he is “restored to [his] right mind.” 1776-1789 N.H. Laws
235-237 (1776 law); see also 1737 Mass. Laws. 9-10; 1780-1788 Mass. Laws 135-136
(1784 law); 1788 N.Y. Laws 617; 1700-1797 Del. Laws 1055-1056 (1793 law); William
Paterson, Laws of the State of New-Jersey 125 (1800) (1794 law); 1799 Miss. Laws 35-38

8
Solely for accuracy, when directly quoting historical and secondary source
material, the government retains the use of outdated and in some cases discriminatory
language used to describe the mentally ill.
9
The first general hospital in America did not open until the 1750s (in
Philadelphia) and the first asylum dedicated to care of the mentally ill did not open until
1773 (in Williamsburg, Virginia). Deutsch, supra, at 58-60, 66; see Grob, supra, at 18-20.
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(law of Mississippi territory); see also 1804 Ohio Laws 163-165; 1805-1821 Mich.
Territory Laws 376-378 (1818 law).
The English tradition of restricting a mentally ill person’s liberty also carried into
18th-century America, albeit in a more decentralized way. “Local officials” typically
dealt with the mentally ill “on an ad hoc basis,” and the issue was not “perceived as a
social problem requiring formal public policies.” Grob, supra, at 15; accord Deutsch, supra,
at 41 (explaining that “individual cases were considered and decided on as they arose”).
Frequently, jurisdictions enacted laws aimed at particular individuals, which specified
the care (including confinement) that their family or the community was charged with
undertaking. See, e.g., Deutsch, supra, at 42-43 (citing examples, including a 1676
Pennsylvania law directing that persons be hired “to build a little block-house at
Amesland” to confine a mentally-ill person and a 1689 Massachusetts law directing a
man to “build a little house . . . to secure his Sister good wife”); Grob, supra, at 15-16
(citing these and other examples).
Statutes of general applicability did eventually emerge. Some colonies authorized
justices of the peace to “lock[ ] up” “lunatics” considered “dangerous to be permitted
to go abroad.” Henry Care, English Liberties, or the Free-Born Subject’s Inheritance 329 (6th
ed. 1774). By around the time the Second Amendment was ratified, jurisdictions had
enacted laws—tracking the language of the English Vagrancy Act—permitting the
commitment of persons determined by justices of the peace, magistrates, or selectmen
to be “[l]unatics” or of “unsound mind.” See, e.g., 1769 Va. Acts 13; 2 William Littell,
The Statute Law of Kentucky 578 (1810) (1787 law); 1 Samuel Shepherd, Statutes at Large of
Virginia from October Session 1792, to December Session 1806, Inclusive 163 (1835) (1792 law);
1798 Mass. Acts 813; 1 The Public Statute Laws of the State of Connecticut 386 (1808) (1793
law). Such laws were used, among other things, to combat firearm-related threats: in
one instance, a man in Massachusetts whose “wealth and social standing in the town”
otherwise generally “protected him from disgrace” was confined after he “became
dangerous” by “firi[ing] a pistol at a curious onlooker.” Jimenez, supra, at 93.
Given these well-established practices, no historical evidence suggests that
anyone in the Founding-era believed the government lacked authority—consistent
either with the preexisting right to keep and bear arms or the Second Amendment—to
specifically disarm the mentally ill. And, as this Court has explained, greater restrictions
on the liberty and property of persons who were mentally ill made firearm-specific
restrictions unnecessary at the time. Beers v. Attorney General, 927 F.3d 150, 157 (3d Cir.
2019), vacated on other grounds, 140 S. Ct. 2758 (2020). The absence of any Founding-era
laws specifically disarming such persons thus is readily explained by social and
technological factors that have nothing to do with the Second Amendment. It was not
until the 19th century that a “dramatic growth in population was accompanied by a
proportionate increase in the number of [mentally ill] persons,” which caused such
persons to be “more visible, and public concern about security increased” particularly
in “densely populated areas.” Grob, supra, at 24. Nor would the specific combination
of mental illness and firearms have posed the same threat in the 18th century that it did
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during subsequent decades because 18th-century guns generally fired only one shot,
often misfired, took a long time to load, and could not be kept loaded for long periods.
See Randolph Roth, Why Guns Are and Are Not the Problem, in Jennifer Tucker et al., eds.,
A Right to Bear Arms?: The Contested Role of History in Contemporary Debates on the Second
Amendment 117 (2019). Accordingly, the absence of 18th-century regulations specifically
addressing mental illness and firearm use does not reflect any doubt about such
measures’ constitutionality. The Supreme Court has dismissed as “bordering on the
frivolous” the argument that the Second Amendment protects “only those arms in
existence in the 18th century,” Heller, 554 U.S. at 582, and the notion that the
Amendment permits only those specific regulations that existed in the 18th century has
no more merit. Cf. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 373 (1995) (Scalia, J.,
dissenting) (“Quite obviously, not every restriction upon expression that did not exist
in 1791 or 1868 is ipso facto unconstitutional.”).
Tellingly, as relevant societal conditions changed, so too did the nature and
specificity of mental-illness-related firearm regulations. As the 19th century wore on,
several states banned the sale of guns to the mentally ill. See 1881 Fla. Laws 87; 1883
Kan. Sess. Laws 159; 1899 N.C. Pub. Laws 20-21; see also Sam Kimble, Revised Ordinances
of the City of Manhattan and Rules of the Council 49 (1887). In the 20th century, new
regulations on the delivery or sale of firearms were similarly extended to the mentally
ill as well as drug addicts. See, e.g., 1927 N.J. Laws 745; 1931 Pa. Laws 499; 1935 Ind.
Acts 161; 1935 S.D. Sess. Laws 356; 1935 Wash. Sess. Laws 601; 1936 Ala. Acts 52; 47
Stat. 650, 652 (1932). 10
In short, although regulations addressing firearm possession by the mentally ill
have evolved with societal and technological conditions, history confirms that
“longstanding prohibitions on the possession of firearms” by “the mentally ill,” Heller,
554 U.S. at 626, have a “well-established” historical tradition, Bruen, 142 S. Ct. at 2133.
2. Section 922(g)(3)’s temporary prohibition on firearm possession while an
individual is an unlawful user of or addicted to a controlled substance imposes “a
comparable burden” that is “comparably justified” to historical restrictions on firearm
possession by the mentally ill, both in “how and why the regulations burden” the
Second Amendment right. Bruen, 142 S. Ct. at 2133.
In terms of why Section 922(g)(3) limits the right, the provision—like similar
restrictions on the mentally ill and intoxicated persons—limits firearm possession by

10
The government’s earlier supplemental letter brief cited the 1927 New Jersey
law and the 1932 federal statute (applicable to the District of Columbia) as among those
laws prohibiting the delivery and sale of firearms to both drug addicts and habitual
drunkards. See Gov’t Supp’l Ltr. Br. 7. Although those laws did encompass “drug
addict[s]”—as well as persons “not of sound mind”—they did not address intoxicated
individuals. 1927 N.J. Laws 745; 47 Stat. 650, 652 (1932). The government regrets the
inadvertent error.
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persons who would pose a danger to themselves or others if armed. In the Founding
era, drunkenness was equated with mental illness. See, e.g., Benjamin Rush, An Inquiry
into the Effects of Ardent Spirits Upon the Human Body and Mind 6 (1812) (describing
drunkenness as a “temporary fit of madness”); Carl Erik Fisher, The Urge: Our History of
Addiction 47 (2022) (noting that “eighteenth-century writers” understood “habitual
drinking” as a form of “insanity”). That view persisted into the 19th century, with many
states enacting statutes that allowed “habitual drunkards” to be committed to asylums
or placed under guardians in the same manner as “lunatics.” Kendall v. Ewert, 259 U.S.
139, 146 (1922) (quotation omitted).
Although many modern narcotics and psychoactive drugs were unknown at the
Founding, see Gov’t Supp’l Ltr. Br. 4-5, it is “beyond dispute that illegal drug users”—
like alcoholics or those with mental illnesses—“are likely . . . to experience altered or
impaired mental states that affect their judgment and that can lead to irrational or
unpredictable behavior.” Wilson v. Lynch, 835 F.3d 1083, 1094 (9th Cir. 2016). As the
Supreme Court has explained, suspicionless drug testing of federal employees who carry
firearms is justified by “the extraordinary safety . . . hazards that would attend the
promotion of drug users to positions that require the carrying of firearms,” including
concerns that employees “may suffer from impaired perception and judgment.” Nat’l
Treasury Emps. Union v. Von Raab, 489 U.S. 656, 671, 674 (1989). “[E]ven a momentary
lapse of attention [while carrying a firearm] can have disastrous consequences.” Id. at
670 (quotation omitted). Similar hazards justify Section 922(g)(3).
Moreover, it has long been understood that a person with a mental illness does
not necessarily exhibit symptoms all the time. Blackstone thus defined a “lunatic” as
“one that hath lucid intervals; sometimes enjoying his senses, and sometimes not.” 1
William Blackstone, Commentaries on the Laws of England 294 (1765); see Edward Coke,
The First Part of the Institutes of the Lawes of England, or, a Commentarie upon Littleton § 405,
at 247 (1628) (same). The Supreme Court has nonetheless approved “longstanding
prohibitions on the possession of firearms by . . . the mentally ill” and has never
suggested that the validity of such laws fluctuates with the remission and relapse of a
person’s symptoms. Heller, 554 U.S. at 626. Just as Congress may disarm persons with
mental illnesses even during their lucid intervals, it may disarm habitual drug users even
during their sober intervals.
In terms of how the law burdens the right to self-defense, Section 922(g)(3)’s
temporary restriction is no more restrictive than historical laws that dispossessed
mentally ill individuals of their property until they were deemed to have recovered. See
supra at 7-8. Section 922(g)(3)’s restriction extends no longer than necessary to
accomplish its purpose of preventing firearms from “fall[ing] into the hands of the
lawless or those who might misuse them.” S. Rep. No. 89-1866, at 1 (1966).
CONCLUSION
For the foregoing reasons, and those detailed in the government’s response brief
and previous supplemental letter brief, the judgment should be affirmed.
10
 Case: 21-3031 Document: 68 Page: 11 Date Filed: 11/15/2023

November 15, 2023 Respectfully submitted,

ERIC G. OLSHAN NICOLE M. ARGENTIERI

United States Attorney Acting Assistant Attorney General
Western District of Pennsylvania
LISA H. MILLER
LAURA S. IRWIN Deputy Assistant Attorney General
Chief, Appellate Section
Western District of Pennsylvania /s/ Andrew C. Noll
ANDREW C. NOLL
ADAM N. HALLOWELL Criminal Division, Appellate Section
Assistant United States Attorney U.S. Department of Justice
Western District of Pennsylvania 950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(202) 307-1982
Andrew.Noll@usdoj.gov
 Case: 21-3031 Document: 68 Page: 12 Date Filed: 11/15/2023

CERTIFICATE OF COMPLIANCE

1. This letter brief complies with the Court’s September 5, 2023 order

because it contains 10 single-spaced pages, excluding the parts of the brief exempted

under Federal Rule of Appellate Procedure 32(f).

2. This letter brief complies with the typeface requirements of Federal Rule

of Appellate Procedure 32(a)(5), the typestyle requirements of Rule 32(a)(6), and the

formatting requirements of Third Circuit Local Appellate Rule 32.1, and has been

prepared in a proportionally spaced, 14-point serif typeface using Microsoft Word.

/s/ Andrew C. Noll

Andrew C. Noll
 Case: 21-3031 Document: 68 Page: 13 Date Filed: 11/15/2023

CERTIFICATE OF SERVICE

I hereby certify that on November 15, 2023, I electronically filed the foregoing

with the Clerk of the Court of the U.S. Court of Appeals for the Third Circuit using the

appellate CM/ECF system. I certify that all participants in the case are registered

CM/ECF users, and that service will be accomplished by the appellate CM/ECF

system.

/s/ Andrew C. Noll

Andrew C. Noll
 Case: 21-3031 Document: 69 Page: 1 Date Filed: 11/15/2023

November 15, 2023

The Honorable Patricia S. Dodszuweit, Clerk of Court
United States Court of Appeals for the Third Circuit
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106
Re: United States v. Erik Matthew Harris, No. 21-3031; Erik Harris’ Supplemental
Letter Brief Responding to Order dated September 5, 2023
Dear Ms. Dodszuweit,
The Court has directed the parties to address the following questions:
whether habitual ingestion of regulated substances, including, marijuana, is
analogous to or triggers conditions analogous to schizophrenia or other
mental illnesses or cognitive impairments, as well as any medical or scientific
evidence that the parties may wish to present that bears on that question,
and whether historical precedents (or lack thereof) support disarming those
with such habits, addictions, impairments or mental illnesses.
Respectfully, the questions appear to invite arguments beyond the scope of the instant
appeal and to contemplate evidence gathering and factfinding functions that are
outside an appellate court’s role.
Mr. Harris has brought an as-applied challenge to 18 U.S.C. § 922(g)(3), which
disarms anyone “who is an unlawful user of or addicted to any controlled substance.”
He was charged as a user, not addict, and convicted based on his purchase of firearms
and his subsequent police-interview admissions to recreational marijuana use. See
Harris Opening Br. (Br.) 50; Appx Vol. III. The statute does not define “user,” does
not require that a person be using or intoxicated while possessing a firearm (a
conviction may be based on past use), and does not require a “user” be in actual (as
opposed to constructive) possession of a firearm.1 This Court need only decide the
narrow question whether § 922(g)(3) violates the Second Amendment as applied to
Erik Harris, an adult recreational user of marijuana who was not intoxicated at the
time of the charged possession. It does not.

1
Unlawful users include those using prescribed controlled substances in a non-
prescribed manner. 27 C.F.R. § 487.11. An inference of current use may be drawn
from “a conviction for use or possession … within the past year” even if the conduct
was more remote, a positive drug test within the past year, and arrests if one was
within the past year. Id.; https://www.justice.gov/file/1385186/download
1
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Tailored to the relevant Second Amendment inquiry required in this appeal, the
answer to both of the Court’s questions is no. There is no scientific consensus that
adult habitual or regular marijuana use is analogous to or triggers conditions
analogous to schizophrenia or other mental illnesses or cognitive impairments.2 And
there is no history and tradition that existed at the founding of disarming people
based on mental illness or cognitive impairments or a potential of forming an illness
due to their behaviors. To the extent any tradition of disarming the mentally ill can be
gleaned from historical sources, § 922(g)(3) does not impose a comparable burden on
the right of armed self-defense and is not comparably justified at least as applied to
recreational users of marijuana.
The Court’s question is beyond the scope of the instant appeal.
The Court’s question—whether “habitual ingestion” of “regulated substances”
including marijuana, “is analogous to or triggers conditions analogous to
schizophrenia or other mental illness or cognitive impairments”—invites arguments
and evidence beyond the scope of the instant appeal. “Habitual” ingestion is not
defined and could mean ingestion of a substance once a day, once a week, or once
every two months. “Regulated” substances include tobacco and alcohol. “Mental
illness” sweeps in a wide swath of conditions including eating disorders, agoraphobia
and selective mutism, none of which pose a danger to the community.3
At issue here is an as-applied challenge by an adult recreational marijuana user
(not addict) who was not intoxicated at the time of the charged possession. In
resolving this as-applied challenge, the Court should limit inquiry to whether there is
scientific consensus that regular use of marijuana triggers conditions analogous to
schizophrenia or other mental illnesses or cognitive impairment. There is not.
Further, Mr. Harris suggests that the Court’s question can be answered only by
resort to evidence outside the record. Appellate courts are not factfinders. See Anderson

2
Habitual marijuana use is not equivalent or analogous to mental illness. Habit
is not addiction. The statute defines addict as “any individual who habitually uses any
narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is
so far addicted…as to have lost the power of self-control….” 21 U.S.C. § 802(1).
Cannabis use disorder is listed as a mental health disorder, see DSM-5 (5th ed.);
cannabis use is not. As stated, Mr. Harris was charged as a user, not addict, and is not
alleged to have been diagnosed with cannabis use disorder.
3
An estimated more than one in five U.S. adults live with a mental illness (57.8
million in 2021). https://www.nimh.nih.gov/health/statistics/mental-illness. See also
Carlton F.W. Larson, Four Exceptions In Search of a Theory: District of Columbia v. Heller
and Judicial Ipse Dixit, 60 HSTLJ 1371, 1383 (2009) (acknowledging mental disorders
cover a wide range of non-dangerous conditions).

2
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v. City of Bessemer City, N.C., 470 U.S. 564 (1985). And scientific and medical journals
on these points were not submitted to the district court, are not part of the record on
appeal, and should not be considered. See Fed.R.App.P.10(a). If the government or
amici now seek to introduce such evidence, such evidence does not involve the sort of
facts “not subject to reasonable dispute” contemplated by the judicial notice
provision. See Fed.R.Evid. 201(b). More importantly, such “evidence” was not tested
for its relevance, reliability and acceptance within the medical or scientific community,
and it was not explained by experts.
There is no scientific consensus that adult recreational marijuana use causes
schizophrenia or analogous conditions.
There is little scientific consensus on anything regarding marijuana in part
because marijuana’s scheduling as Schedule I substance inhibits research.
There are no studies proving a causal relationship between cannabis use and
schizophrenia or psychosis.4 Studies report an observed association between a subset
of cannabis users and those with schizophrenia, but the nature of that association is
contested. Possible explanations for the association include shared environmental risk
and mutual genetic risk. Weiqiu Cheng, et al., The relationship between cannabis use,
schizophrenia, and bipolar disorder: a genetically informed study. Lancet Psychiatry 2023; 10:
441-51 (explaining schizophrenia, lifetime cannabis use, and cannabis use disorder are
partly heritable and that emerging evidence suggests a shared genetic component
increases risk of psychotic disorders and cannabis use).5 That the incidence of
cannabis use disorder increased while the incidence of schizophrenia between 2000
and 2018 remained steady6 undermines the conclusion that cannabis use causes
schizophrenia. See W. Hall, “Is Cannabis Use Psychotogenic?,” Lancet Psychiatry 367
(2006):193-5 (urging caution against concluding from observational studies not
amenable to informative meta-analysis that cannabis causes psychosis).
In a 2023 study of individuals at high risk for developing psychosis, researchers
hypothesized that increased incidence of psychosis would be linked with high
frequency and potency of cannabis use, use before the age of 16, and cannabis use
disorder. However, the study found no evidence that cannabis use in people at high

4
CBD, the primary non-intoxicating constituent in cannabis, has been shown
to have antipsychotic benefits. Ivan Urtis, et al., Cannabis Use and its Association with
Psychological Disorders, Psychopharmacology Bulletin, 50(2): 56-67 (May 2020).
5
Erik Harris is not alleged to have a family history of schizophrenia, nor is he
alleged to be at high risk of developing schizophrenia or psychosis. PSR ¶52.
See Ole Köhler-Forsberg, et al, Schizophrenia spectrum disorders in Denmark
6

between 2000 and 2018: Incidence and early diagnostic transition, 26 May 2023.

3
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risk for psychosis had a significant effect on the incidence of psychosis or other
adverse clinical outcomes. Chester, et al., Influence of cannabis use on incidence of psychosis in
people at clinical high risk, Psychiatry and Clinical Neurosciences 77: 469-77, 475 (2023).
These findings cast doubt on epidemiological data linking cannabis use to an
increased risk of developing psychosis and highlight the need for additional evidence-
based research. Id.
In sum, the association between cannabis use and risk of schizophrenia is
controversial. Chester; Ivan Urtis, et al., Cannabis Use and its Association with Psychological
Disorders, Psychopharmacology Bulletin, 50(2): 56-67 (May 2020). What is
uncontroversial is that evidence-based data is limited and of limited value: studies are
based on self-report; there is no standardization as to age of onset or dose frequency,
amount, and potency; and data may not account for important confounders like
genetic predisposition. Researchers stress the need for high-quality, well-controlled
scientific research leading to an evidence-based understanding of cannabis’s effects.
Importantly, “most individuals who use cannabis never develop a psychotic
disorder.” Urtis. Put simply, marijuana is one of the most widely used substances
globally, see Cheng; to the extent marijuana use increases the risk of developing
psychotic disorders or psychosis (a debated proposition), that risk applies only to a
miniscule subset of individuals who use marijuana.
There is no scientific consensus that regular cannabis use causes long term
cognitive deficits.
Cannabis intoxication has been shown to cause short term impairment of
cognitive functions like basic motor coordination and memory.7 Greenwood, L.,
Lorenzetti, V., & Solowij, N. (2023). Cannabis and Cognition: An Update on Short- and
Long-term Effects. In D. D’Souza, D. Castle, & S. Murray (Eds.), Marijuana and
Madness (pp. 76-90). Cambridge: Cambridge University Press; DSM-5 (5th ed.) at
516-17 (observing that cognitive impairment depends on dose and tolerance).
Notably, significant alcohol intoxication results in more severe cognitive dysfunction.
DSM-5 at 513.
There is no scientific consensus about the long-term effects of heavy cannabis
use, or the amelioration of such effects after abstinence, for most cognitive domains.8
Emese Kroon, et al., The short-term and long-term effects of cannabis on cognition: recent

7
The effects of acute intoxication are not relevant in resolving this as-applied
challenge by a user who was not intoxicated at the time of the charged possession.
8
Medical cannabis users may exhibit enhanced executive function. Sagar, K., et
al., (2021). An Observational, Longitudinal Study of Cognition in Medical Cannabis Patients over
the Course of 12 Months of Treatment: Preliminary Results. Journal of the International
Neuropsychological Society, 27(6), 648-660.

4
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advances in the field, Current Opinion in Psychology, Vol. 38: 49-55 (April 2021)
(detailing substantial barriers to research). Research on adolescent twins suggests that
cannabis does not cause long term cognitive deficits. Nicholas Jackson, et al., Impact of
adolescent marijuana use on intelligence: Results from two longitudinal twin studies, PNAS, Vol
113 No.2 (Feb. 2, 2016) (although marijuana users showed greater decline than
nonusers in areas of crystallized intelligence, the presence of baseline differences before
marijuana involvement, the lack of dose-response relationship, and an absence of
meaningful differences between discordant twins (user vs. nonuser) led researchers to
conclude that observed declines were attributable to confounding factors influencing
both substance initiation and IQ rather than a neurotoxic effect of marijuana).
In any event, cognitive impairment is not coextensive with or equivalent to
mental illness. https://my.clevelandclinic.org/health/diseases/17990-mild-cognitive-
impairment (describing cognitive impairment as trouble remembering, learning new
things, concentrating, or making decisions affecting daily life). Thus, even if there
were scientific consensus that long term marijuana use leads to enduring cognitive
deficits (there is not) and even if there were a historical tradition of disarming the
mentally ill (as will be seen there is not), that tradition would not support disarming
regular marijuana users.
There is no historical tradition of disarming the mentally ill. To the extent the
rights of the mentally ill were restricted, such restrictions were lifted upon
recovery.9
Not only are users of controlled substances not analogous to the mentally ill,
the government has not satisfied its burden of demonstrating a robust tradition of
founding-era regulations disarming people who are mentally ill, including in the
home.10 And it cannot satisfy its Second Amendment burden by claiming that

As already explained, there is also no sufficiently similar historical regulation

9

banning the potential combination of intoxicants and guns, i.e., the possession even in
the home of firearms by those who use intoxicants based on their status as users. See
Doc. 53 at 5-7; Harris’ Supp. Reply Ltr. Br. (Doc. 57) 4-8.
10
In a one-sentence footnote, the government asserted that § 922(g)(3) is
analogous to unidentified prohibitions on the mentally ill. Gov’t Supp. Ltr. Br. (Doc.
55) at 9 n.9. Previously it cited to presumed “longstanding prohibitions” disarming
felons and the mentally ill. G.Br. (Doc. 38) at 11-12, 18. Mr. Harris has argued this
was insufficient to satisfy the government’s burden and indeed to preserve the
argument. Doc. 57 at 5-6 n.4; Doc. 53 at 8 (citing Range, 69 F.4th at 101). This Court
would be better equipped to resolve whether there is a historical tradition of
disarming the mentally ill when presented with a challenge to a regulation actually
stripping a person of Second Amendment rights based on mental illness, see, e.g., 18

5
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individuals can constitutionally be disarmed so long as they are “dangerous”; that

standard has no basis in law or historical fact, and in any event it does not apply to
Mr. Harris, an adult recreational user of marijuana who was not intoxicated at the time
of the charged possession and who the district court determined did not pose a
danger to the community. See Harris’ Supp. Ltr. Brief (Doc. 53), 9.
This Court has acknowledged the lack of historical evidence disarming based
on mental illness. See Beers v. Att’y Gen’l, 927 F.3d 150, 157 n.43 (3d Cir. 2019), cert.
granted, judgment vacated, case remanded by Beers v. Barr, 140 S. Ct. 2758 (2020). “One
searches in vain through eighteenth-century records to find any laws specifically
excluding the mentally ill from firearms ownership.” Carlton F.W. Larson, Four
Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60
Hastings L.J. 1371, 1376 (2009). “Specific eighteenth-century laws disarming the
mentally ill [] simply do not exist.” Id., 1378. See, e.g., Adam Winkler, Heller’s Catch-22,
56 UCLA L.Rev. 1551, 1563, 1565 (June 2009) (“The Founding generation had no
laws limiting gun possession by the mentally ill”; such laws are “products of the
twentieth century”).
After noting the lack of historical evidence disarming the mentally ill, Professor
Larson posited that an Originalist nevertheless might argue that “in eighteenth-
century America, justices of the peace were authorized to ‘lock up’ ‘lunatics’”—those
who have lost the use of reason, see Anthony Highmore, A Treatise on the Law of Idiocy
and Lunacy 104 (1807)—“who were ‘dangerous to be permitted to go abroad.’” 60
Hastings L.J. at 1377 & n.29 (quoting Henry Care, English Liberties, or the Free-born
Subject’s Inheritance 329 (6th ed. 1774)). From there, one might argue that if this
infringement of liberty were permissible, “then the lesser step of mere disarmament
would likely be permissible.” Id.11
First, Range explicitly rejected argument that the greater punishment necessarily
includes the lesser. Range v. Att’y Gen., 69 F.4th 96, 105 (3d Cir. 2023) (en banc), ptn. for
cert. filed Oct. 10, 2023. Accord Folajtar v. Att’y Gen., 980 F.3d 897, 921 (3d Cir. 2020)
(Bibas, J., dissenting) (that the “dead enjoy no rights does not tell us what the
founding-era generation would have understood about the rights of felons who lived,

U.S.C. § 922(g)(4) (disarming anyone “who has been adjudicated as a mental defective
or who has been committed to a mental institution.”), following record development
in the district court and full appellate briefing.
11
In a pre-Bruen case, the Seventh Circuit followed this ahistorical logic. United
States v. Yancey, 621 F.3d 681, 685 (7th Cir. 2010) (citing Don B. Kates & Clayton E.
Cramer, Second Amendment Limitations and Criminological Considerations, 60 HASTINGS
L.J. 1339, 1361 n.136 (2009)). See Br. 30-33 (discussing Yancey). At the cited footnote,
the Kates article provides, “The Framers seem to have been remarkably unconcerned
about the mentally ill having access to firearms.”

6
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discharged their sentences, and returned to society.”); Kanter, 919 F.3d at 461-62
(Barrett J., dissenting) (characterizing argument that the severity of punishment at the
founding implicitly sanctions the lesser sanction of loss of Second Amendment rights
as “misguided”). In the same way that founding-era capital punishment does not
support the constitutionality of present-era felon disarmament, founding-era
confinement of “lunatics” does not support disarmament of those with mental illness,
let alone users of marijuana.
Second, the source cited as evincing a tradition of disarming the mentally ill
actually quotes a template “Warrant to Secure a Lunatic.” See United States v. Alston,
2023 WL 4758734, at *13 (E.D.N.C. 2023) (noting absence of proof that the English
template warrant was used in the Colonies). The template warrant provides that if it
were “proved” before two justices of the peace that a citizen is “by lunacy” so far
disordered that he is “dangerous to be permitted to go abroad” he could be
apprehended and housed in a secure place but only while such “lunacy or disorder
shall continue and no longer.” English Liberties, at 329. Some authorities suggest that
the warrant reflected English practice under the Vagrancy Act of 1744.12
Under that Act, once it was shown that a person was by lunacy “furiously mad”
or “so far disordered in [his] senses” that he was dangerous, officials were allowed to
deport the “Lunatick” to his place of legal residence. Vagrancy Act of 1744, 17 Geo.
2, ch. 5, § 21. The individual could be “safely locked up in some secure place” only for
as long “as such Lunacy or Madness shall continue.” Id. The Act did not mandate
prison and it provided that “any Friend or Relation of such Lunaticks” could “take
them under their own Care and Protection” if they so chose. Id. § 21. Authorities
could seize and sell assets to pay for treatment and care. Id. § 20. See generally 1788 NY
Laws Ch.12 (requiring that lunatic’s estate be safeguarded, that income derived from
the estate be used to care for him and his household, and that lands and goods be
restored when the lunatic comes to his right mind).13

12
The government elsewhere cites Richard Moran, The Origin of Insanity as a
Special Verdict: The Trial for Treason of James Hadfield, 19 L. & Soc’y Rev. 487, 488 (1985),
which itself cites the English Vagrancy Act of 1744. See Gov’t Br. 43-44, United States
v. Harrison, No. 23-6028 (10th Cir., filed June 26, 2023). Moran describes the Act as
requiring findings before two justices of the peace but qualifies, “the system was
mainly informal and irregular….” Id.
13 Elsewhere the government has relied on Thomas Cooley’s 1868 treatise for
the proposition that “[c]ertain classes have been almost universally excluded” from
“the people” including slaves, women, infants, and “the idiot, the lunatic, and the
felon” because they “lack either the intelligence, the virtue, or the freedom of action”
necessary for the exercise of certain civic rights like voting. Thomas M. Cooley, A
Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of

7
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Setting aside both the dearth of eighteenth-century laws barring the mentally ill
from possessing firearms and Range’s admonition that a greater punishment
(confinement) does not necessarily include the lesser (disarmament), regulations
confining the dangerously mentally ill are not sufficiently similar to § 922(g)(3)
because they do not impose a comparable burden on the right of armed self-defense
and are not comparably justified at least as applied to recreational users of marijuana.
The proffered historical precursors did not impose “a comparable burden on
the right of armed self-defense” to Section 922(g)(3)’s application to Mr. Harris here.
Bruen, 142 S. Ct. at 2133. English law required an individualized judicial determination
of present dangerousness, not predictive judgments about who might become
dangerous. Neither mental illness standing alone nor the potential of developing mental
illness were sufficient to confine someone. By contrast Section 922(g)(3) disarms
citizens without any individualized judicial determination of present dangerousness14
let alone an individualized determination that the citizen falls within the category of
people subject to the statute (users). Even if it is true that a person actively intoxicated
with certain controlled substances may have impaired judgment impacting his use of a
firearm, § 922(g)(3) is not so limited. Indeed, a person who uses controlled substances
and owns a gun—but never mixes the two—can be convicted under the statute. And
the punishment is much more severe: Section 922(g)(3) is currently punishable by
imprisonment up to 15 years incarceration. 18 U.S.C. § 924(a)(8) (2022).
Not only does § 922(g)(3) impose a distinct burden on individual’s Second
Amendment right as compared to laws restricting the rights of an individual with
mental illness, but also § 922(g)(3) is not comparably justified, especially not as applied
to a recreational user of marijuana. First, Section 922(g)(3) contemplates disarmament
without regard for danger; the statute does not require actual impairment at the time
of possession. Second, as discussed above, marijuana use and mental illness are not
analogous in any relevant way—there is no scientific consensus that adult recreational

the American Union, 28-29 (1868) (“the maxim that government rests upon the consent
of the governed is in practice subject to exceptions”). See Gov’t Br. 43-44, United States
v. Harrison, No. 23-6028 (10th Cir., filed June 26, 2023) (citing Robert Dowlut, The
Right to Arms: Does the Constitution or Predilection of Judges Reign, 36 Okla.L.Rev. 65, 96
(1983), which itself cites only the Cooley treatise for this principle). Civic rights like
the voting rights discussed in Cooley’s treatise involve collective rights; the Second
Amendment confers an individual right not limited to civic participation. Thus, any
historical restrictions on civic rights do not apply to the right to keep and bear arms
and do not reflect a tradition of disarming the mentally ill. See Kanter v. Barr, 919 F.3d
437, 451, 462-63 (7th Cir. 2019) (Barrett, dissenting).
Indeed, the district court determined that Mr. Harris did not pose a danger to
14

any person or the community. See Doc. 53 at 12.

8
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marijuana use causes psychosis or long-term cognitive impairment—so the

justifications for regulating firearm possession by people with mental illness and users
of marijuana cannot be sufficiently similar.15 Indeed, as discussed further below,
studies show that marijuana users experience reduced levels of aggression and that
“violent behavior is either decreased or unaffected by marijuana use.”
In sum, the government has not proven a history and tradition of disarming
based on mental illness (or a history and tradition of disarming based on one’s status
as a user of intoxicants). Those founding era regulations that exist confining the
mentally ill upon a determination of dangerousness during the period of illness and no
longer (and those limiting the rights of certain actually intoxicated persons to
carry/discharge guns at various times and places for various reasons), are not
analogous to Section 922(g)(3)—they do not share the same “why” or “how” and thus
do not pass muster under Bruen.
Even if Section 922(g)(3) were somehow constitutional as applied to dangerous
people, the conviction must be vacated because, as the district court already
determined, Mr. Harris is not dangerous.16
Mr. Harris was disarmed and subject to imprisonment for up to 10 years based
on an unsupported legislative judgment that users of any controlled substance are
dangerous if armed. The government may not simply rely on the legislature’s apparent
predictive judgment that all users of any controlled substance are dangerous if armed.
New York Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2131 (2022) (judicial
deference to legislative interest balancing is not the deference the Constitution
demands); Folajtar, 980 F.3d at 923 (Bibas, dissenting) (“stripping a person’s
fundamental rights based on projected crimes untethered from past dangerous actions

15
Attempting to equate intoxication with mental illness, the government
frequently cites without context Dr. Benjamin Rush’s “Inquiry into the Effects of
Ardent Spirits Upon the Human Body and Mind.” Dr. Rush, who is now seen as an
early advocate of temperance, was describing in order the common and escalating
effects of a fit of drunkenness ranging from “unusual garrulity” to immodesty, to
certain acts like “singing, hallooing, [and] roaring” which “indicate a temporary fit of
madness.” By madness Dr. Rush plainly did not mean what we now understand as
mental illness.
16
As in Range, this Court need not decide whether dangerousness is the correct
touchstone because the government “did not carry its burden to provide a historical
analogue to permanently disarm someone like [Mr. Harris], whether grounded in
dangerousness or not.” Range, 69 F.4th at 104-05 & n.9.

9
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is a risky game indeed.”).17 As Mr. Harris has already shown, the legislature’s
predictive judgments are based on off-point studies and supposition that could not
even satisfy means-end scrutiny. See Br. 22-33. Harris Reply Br. (Doc. 43) 18-20; Doc.
53 at 9 & n.6. Judicial deference to legislative judgments is particularly inappropriate
when resolving an as-applied challenge by a marijuana user who was not intoxicated at
the time of the charged possession and who the district court has determined did not
pose a danger to any person or the community.
Not all controlled substances have intoxicating properties; thus, not all
unlawful users are dangerous if armed—e.g., the high schooler who unlawfully uses his
sibling’s prescription Adderall to cram for exams. And not all controlled substances
that do have intoxicating properties render the user incapable of safely possessing a
firearm when intoxicated. More particularly, researchers characterize the relationship
between frequent marijuana use and violence as “spurious” pointing to studies
showing that marijuana users experience reduced levels of aggression and that
“violent behavior is either decreased or unaffected by marijuana use.” See Br. 25-28.
See also Peter Hoaken, Drugs of Abuse and the Elicitation of Human Aggressive Behavior,
Addictive Behaviors 28, no. 9 (December 2003): 1533–54 (research indicates cannabis
intoxicated individuals are less likely to act aggressively). That marijuana may lawfully
be purchased in four of the six states touching Pennsylvania undermines legislative
assumptions about systemic violence in the drug trade. See Br. 28. Similarly,
marijuana’s low cost undermines speculation that users are motivated to commit other
crimes to feed their habit. Br. 28. See https://oxfordtreatment.com/substance-
abuse/marijuana/average-cost-of-marijuana/ (estimating cost of a single dose in
Pennsylvania and bordering states between $5.47 and $6.95).
In sum, Erik Harris is among “the people,” and his right to bear arms is
presumptively protected. Bruen, 142 S. Ct. at 2126; Range, 69 F.4th at 101-03. The
government has not rebutted that presumption by proving 18 U.S.C. § 922(g)(3) “is
consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 142 S.
Ct. at 2135. The convictions must be reversed.

17
It is difficult to envision a principled way to ascertain which supposedly
“dangerous” people can and cannot be disarmed that does not involve engaging in the
“judge-empowering interest balancing inquiry” that Bruen repudiated. 142 S. Ct. at
2129. Evaluating whether a particular group can be disarmed on “dangerousness”
grounds will involve appraising how important the government’s interest is and
whether a challenged statute is sufficiently tailored to further that interest. See Binderup
v. Att’y Gen., 836 F.3d 336 (2016). This is the bread and butter of pre-Bruen interest-
balancing.

10
Case: 21-3031 Document: 69 Page: 11 Date Filed: 11/15/2023

Respectfully submitted,

LISA B. FREELAND
Federal Public Defender

/s/ Renee Pietropaolo

Renee Pietropaolo
Assistant Federal Public Defender
Counsel for Appellant

Federal Public Defender’s Office for the

Western District of Pennsylvania
1001 Liberty Avenue, Suite 1500
Pittsburgh, PA 15222

(412) 644-6565

11
 Case: 21-3031 Document: 69 Page: 12 Date Filed: 11/15/2023

CERTIFICATE OF COMPLIANCE

This letter brief complies with the Court’s September 5, 2023 order because it

consists of 10 single-spaced pages, excluding those parts exempted under Federal Rule

of Appellate Procedure 32(f). This letter brief also complies with the typeface

requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R.

App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface

using Word 2016 for Windows 10 word count software in font size 14, type style

Garamond.

/s/ Renee Pietropaolo

Renee Pietropaolo
Assistant Federal Public Defender

November 15, 2023

 Case: 21-3031 Document: 69 Page: 13 Date Filed: 11/15/2023

CERTIFICATE OF SERVICE
I hereby certify that on November 15, 2023, I electronically filed the foregoing

Supplemental Letter Brief for Appellant Erik Harris pursuant to the Court’s Order

dated September 5, 2023, using the Third Circuit Court of Appeals’ Electronic Case

Filing (CM/ECF) system. I also certify that I served copies upon Filing User Andrew

C. Noll, through the appellate CM/ECF system.

/s/ Renee Pietropaolo

Renee Pietropaolo
Assistant Federal Public Defender

November 15, 2023