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United States v. Harrison and the Future of Second Amendment Law:
A Conversation with Andrew Willinger

Mr. Willinger is the Executive Director of the Duke Center for Firearms Law.

All errors are my own. Edited and condensed for clarity.

Mr. Willinger holds degrees from Dartmouth College and Duke Law School, where he served as a staff editor for the Duke Law Journal. Afterwards,
he clerked for Judge Osteen of the Middle District of North Carolina and served as a litigation associate at Patterson Belknap Webb & Tyler in New York. Since then, he has emerged as a national expert on Second Amendment jurisprudence and has been cited or interviewed by CNN, the Wall Street Journal, and the
New York Times. In 2022, he became the Executive Director of Duke University’s Center for Firearms Law, where he publishes numerous articles and papers every week to keep practitioners up-to-date on the latest developments in firearms law, including the topic we will be discussing today, which is Judge
Wyrick’s recent holding in United States v. Harrison, and its potential impact. Mr. Willinger, thank you for being here, and for offering your time.


Maclain Conlin: Thank you, and before we get started, I would like to just say two brief things. First of all, many members of the legal profession today, both judges and lawyers, seem unable to disentangle their political opinions from the legal issues before them and they often disregard evidence if it doesn’t fit their preconceived vision of how the world should work. But I’ve read many of your articles and many of your papers, and I have always admired your ability to recognize opposing arguments and I have always admired your commitment to following the law wherever it might lead. That is very difficult in today’s world. For example, I remember reading your article earlier this year on whether North Carolina’s concealed carry laws are racially motivated, and you acknowledged that there was historical evidence for the other side but you also offered your own opinion. That kind of impartiality, and that ability to value correctness over politics, is so rare these days that I just wanted to put it on the record for our readers so that they know that.


AW: Thank you very much. That’s very kind.


OA: Thank you. My second point is why you chose to specialize in Second Amendment law. Are you a marksman yourself, or did you enjoy the caselaw or the history? What made you choose this area of law?


AW: Great question. I don’t have any background personally in firearms. I really got into this field because the faculty co-directors at the Center for Firearms Law, Joseph Blocher and Darrell Miller, are two professors that I admired when I was here as a student. I knew a lot about them and their work, and there was always a desire in the back of my mind to enter academia. I was in private practice for a while in New York at a couple of different firms, and suddenly the opportunity opened up to come down here and possibly break into that world. I actually started at this position on the day Bruen was decided, interestingly enough. It’s a fascinating topic overall, and I have really enjoyed researching it and writing on it for the past year.


OA: Wonderful. It’s certainly a fast-moving area of law, so I can imagine that’s very enjoyable. I suppose that we can go ahead and jump right into the topic then, since you brought up part of it. In February, a federal trial judge in Oklahoma struck down Section 922(g)(3) (I hope I got that right!) of the U.S. Code, saying that it violates the Second Amendment. Let’s start there. First of all, before we get into the caselaw, what is Section 922(g)(3)? Why was it passed, and what exactly does it prohibit?


AW: Sure thing. This is a subsection of 922(g), which is a piece of federal criminal law that sets forth certain groups of individuals whose ownership of firearms is restricted in some way. Some of those provisions apply to possession and ownership, while others apply to receipt of firearms. For example, if you are under felony indictment, you can’t receive firearms. You can possess firearms but you can’t obtain a new gun. The most well-known provision in this statute is probably the ban on felon possession of firearms. That’s 922(g)(1). But (g)(3) is a portion of the statute that bars those who are unlawfully users of or addicted to controlled substances from possessing firearms. It’s a relatively recent addition to federal criminal law. I believe it dates back to the GCA in 1968 and then the actual language was changed a little bit and expanded. But it doesn’t go further back than that.


OA: Interesting. So it’s a comparatively recent form of firearm regulation. Before we get into the caselaw, I would also like to ask about the facts of this particular case. Why was Jared Michael Harrison in federal court, and why did this judge have the opportunity to rule on this issue?


AW: Good question. My understanding is that 922(g)(3) is used relatively infrequently by federal prosecutors. It's usually an additional charge that’s brought when somebody is charged with other gun or drug crimes under federal law. It’s interesting that we’re talking about this now, because there has been a
lot of press surrounding the Hunter Biden plea deal and diversionary agreement. That involved Hunter Biden pleading to a violation of 922(g)(3) in addition to an income tax-related crime as well. But in general, it is used pretty infrequently. Here, I believe an individual was pulled over in a traffic stop. The officer smelled marijuana, and they performed a search of the car. Ultimately, they found a firearm and also various drug paraphernalia in the car. The record also says that he was out on bond pending a charge of aggravated assault.


OA: So he wasn’t released with this decision. It was simply one indictment taken off the list.


AW: I think that’s correct.


OA: Thank you for that. Now we can get into some of the caselaw and the history, which is probably the most exciting part. You mentioned that the Supreme Court issued a new ruling last year called Bruen v. New York State Rifle and Pistol Association. There, the Court laid out some standards for when a firearm regulation violates the Second Amendment. What were some of those standards, and how did the parties in this case try to meet those standards?


AW: Sure thing. Bruen was a very consequential decision. It was the first Second Amendment case that the Court had taken up in twelve years. District of Columbia v. Heller in 2008 was a watershed for the Second Amendment. There, the Court considered the question of whether the Amendment only protects a
militia-related right or an individual right to gun ownership. Both Heller and a case from two years later, McDonald v. City of Chicago, dealt with firearm possession inside the home and laws in D.C. and Chicago that restricted the ability of individuals to have guns that were operational in their homes. The Court held that the Second Amendment does protect an individual right, but in both cases the Court didn’t give much guidance on what the actual legal test should be for when a court decides whether a law violates the Second Amendment or not.

 

The lower courts, without any clear guidance from the Supreme Court, had generally coalesced around what is called a two-step framework. They first performed a textual and historical analysis of whether the Second Amendment is even implicated. If they determined that the Second Amendment was implicated, they would then move on to perform what’s called means-end scrutiny. Generally speaking, they would weigh the government’s stated reasons for enacting the law, usually relating to public safety. The government might provide evidence demonstrating that the law reduced gun violence and the court would then weigh these arguments against the burden that the law imposed on Second Amendment rights. That was the approach, I believe, that every court of appeals to consider the question had adopted, and the Court had not weighed in for a long time.

 

Bruen was a very consequential decision because the Court decided to take another Second Amendment case, and the Court ultimately repudiated this two-step framework that had been adopted in the courts of appeals. In Bruen, the challenge was to New York’s concealed carry licensing law. New York had required “proper cause” to obtain a permit for concealed carry, and was one of six jurisdictions to impose this standard. It basically required that you show an exceptional reason for wanting to carry a gun in public. First, the Court acknowledged that it hadn’t addressed the issue before of whether the Second Amendment applied outside the home to concealed carry. This was a very brief portion of its opinion, and the Court said yes, there is a right to carry in public under the Second Amendment. Then, the Court said that the two-part test which lower courts had been using was not consistent with its prior decisions. Instead, if you get through that first part of finding that the Second Amendment is implicated, the government then has the burden of coming forward with evidence to show that its regulatory method is consistent with the American historical tradition of firearm regulation. What that means specifically is
that the government needs to come forward specifically with similar laws from history-it’s not exactly clear when in history, but probably some time close to the Founding era-that are similar to the law that’s being challenged.


OA: That’s interesting, and you mentioned in your article that in Judge Wyrick’s holding, he rejected some evidence of laws from the Founding era-for example, law preventing Catholics and loyalists from owning firearms. You disagreed with that conclusion, correct?


AW: Yes. To summarize a little bit, Judge Wyrick in this case first considered the threshold question of whether the Second Amendment is even implicated. The Amendment protects the right of “the people” to keep and bear arms, and Judge Wyrick said that the first question he needed to address was whether or not Harrison was part of “the people” who are protected by the Second Amendment. The government argued that because the Supreme Court has, in various places, referred to the right of “law-abiding, responsible citizens” to possess firearms, that that means only law-abiding persons are within “the people” protected by the Second Amendment. This is often an issue that arises, not just in 922(g)(3) cases, but also in the felon-possession cases, where someone who has committed a nonviolent felony alleges that the statute is
unconstitutional as applied to them. So Judge Wyrick said that Harrison is within “the people” protected by the Second Amendment, and moved on to the second step, considering a variety of different laws that the government had offered as analogues that restricted those who were actively intoxicated from
keeping, bearing, or discharging weapons. They also, as you mentioned, offered laws that restricted various groups from possessing firearms. The government argued that this showed a tradition of preventing those considered to be dangerous from possessing guns. He also considered an argument that
because Bruen had endorsed licensing laws in certain states that had analogous restrictions-some states will prevent those who are drug users from acquiring guns-the Court had implicitly signed off on this type of law.


In each case, he rejected those arguments. Judge Wyrick found that each of these laws had been enacted for different reasons and also that they burdened the right to self-defense in separate ways, so they were not examples of a similar historical tradition.  

 

To your question, what I was commenting on in my post was this section of the opinion where Judge Wyrick discusses laws from the Revolutionary War era, right before the War and then during the Articles of Confederation time period, where, due to the exigencies of war, there were laws that restricted loyalists from having weapons. Basically, he argued that some of the laws which were passed during this time shouldn’t be part of the American historical tradition because they were passed during an extraordinary era. To some extent, I think that’s true, but I do question how that fits within an originalist theory of the
Second Amendment, because that’s really just a modern jurist saying, “I can’t imagine that these laws were actually what the men who wrote the Second Amendment intended to allow. Clearly, they wouldn’t have signed off on this. Clearly, they wouldn’t have been okay with this.” But it’s tricky to pick and
choose in history, especially when you are dealing with laws that are very close in time to when the Second Amendment was actually written.


OA: That’s certainly true. Out of curiosity, did the government put forward any examples of firearm regulations from around 1868, when the Amendment was incorporated against the states, or had these laws largely died out by then?


AW: I think this opinion in Harrison is pretty interesting because, out of all the post-Bruen decisions that I’ve read, and I’ve read a fair number of them, this one is very focused on the Founding era. Usually, judges have hedged a little bit. As I mentioned, the Supreme Court in Bruen left open how far into the
present you can go. We know that 1900 is too late, and anything after that is maybe too late, but it’s not really clear how a court should weigh laws enacted during the 19th-century. Is it sort’ve a sliding scale, where the further away you get from the Second Amendment the law is worth less in the analysis, or not?
This is a federal law, so there are strong reasons to focus on 1791 here, but when you’re dealing with a challenge to a state law, there are similar state provisions regarding drug users.


In this opinion, there really isn’t any discussion of later laws, from the post-Civil War era. My understanding is that there are a number of laws from that period that similarly were aimed at individuals who were intoxicated. I don’t know that they defined intoxication as broadly as 922(g)(3) defines drug use, or that they would have disarmed someone because of a handful of occasions of drug use. I do think that we would see a greater number of laws if we looked at that time period.

 

OA: Do you think-and this is certainly a controversial issue-that laws which would be held unconstitutional today should be considered? For example, some gun control restrictions, as you discussed in your prior articles, were probably enacted with racial motivations. If that might be struck down as unconstitutional today under the Equal Protection Clause but probably would have been considered constitutional back then, should those laws be considered?


AW: It’s a great question. It’s one that a lot of courts have struggled with when confronting this issue. It’s important because a lot of the laws that the government is relying on in these post-Bruen cases-by necessity, because that’s what’s out there from the Founding era-are laws that we recognize today are
clearly unconstitutional. Facially discriminatory laws based on race or religion. Do I think those should play any role in the constitutional analysis? First, I would draw a line between laws that are facially discriminatory and laws that may have been motivated by race. I personally see some of the arguments bleeding over. You see this assumption that following the post-Civil War period and into the Jim Crow period, all laws that were passed in Southern states at that time were purely motivated by race. I don’t think that’s true. I think the historical reality is actually quite complicated. There are Reconstruction governments that were actually quite integrated, some states for a longer period of time than you might think. There are some laws that were passed for one reason and then harnessed for an improper purpose later on. It’s difficult for me to say that we should just disregard those laws, and in many cases, it’s difficult to find out what the actual motivations are. To be honest, a lot of laws may have improper motivation to some degree. We don’t repudiate them simply for that reason.

 

When you’re dealing with the laws that Judge Wyrick considers here, laws that prohibited enslaved persons, Native Americans, and so on from owning firearms, I think that’s trickier. I tend to favor an approach that abstracts principle from that and doesn’t wholly disregard those laws as Judge Wyrick does. I do tend to think that there was some reason why governments at the time wanted to prevent these groups from owning guns and that same principle could apply today, but now we have empirical evidence that can be used to determine if somebody is dangerous. Obviously, you couldn’t ban Native Americans from
owning guns today but if the relevant consideration is “dangerousness,” those laws might be support for modern regulation that is targeted towards the same objective but supported by empirical evidence.


OA: You also mentioned that there are a variety of other laws that are being challenged after Bruen which restrict firearm possession by various groups. Would you mind discussing a couple of those cases and how they might relate to this decision?


AW: Absolutely. I think the big one is a challenge to another subsection of 922(g), and this is 922(g)(8). This is a federal law that prohibits those who are subject to certain domestic violence restraining orders from possessing firearms. This law was challenged in a district court in Texas, and a unanimous 5th Circuit panel held that the provision was unconstitutional earlier this year. It’s a relatively similar analysis to the one in Harrison. It’s almost more straightforward because domestic violence wasn’t a crime at the time of the Founding, and it’s more of a straightforward analysis if you are looking for a close analogue in the historical record. You’re not going to find a restriction on firearm ownership by those who have committed or are likely to commit domestic violence. It just won’t be there. For that reason, the panel
struck down the law, and the government petitioned for certiorari before the Supreme Court. [1] I think the Court is likely to take that case, just because the Court generally does want to weigh in when a federal statute is struck down. But we will see. That could be the next big Second Amendment case, and would be very important in this “prohibited persons” area.

 

The other big set of cases, which I alluded to earlier, relate to the felon-possession ban by individuals who have committed a variety of nonviolent felonies. These are people who have been convicted of things like lying on an application for food stamps or other federal aid. In some instances, that would be a felony, depending on what the amount of money at issue is. You would lose permanently your right to possess firearms under federal law. We have seen courts be somewhat receptive to those as-applied challenges to 922(g)(1). The 3rd Circuit en banc decision just a few weeks ago held that a nonviolent felon had a successful as-applied challenge. But it was an interesting decision, because the Court didn’t really decide what the principle was in terms of what types of criminals can be disarmed. I think generally it would have to be some kind of “dangerousness” test. The problem in those cases, and this was raised in the 3rd Circuit dissent, is that you basically have to go through felony by felony. There are some hard edge cases. For instance, what about possessing child pornography? That’s not violent conduct, but is that covered? Is it permissible to disarm someone who has been convicted of that crime? I think that’s another area where the Supreme Court will have to weigh in, and that’s an on-the-ground, consequential area, because 922(g)(1) is very frequently used.


OA: That’s interesting. Just out of curiosity, how do you read the political atmosphere on this issue? Conservatives tend to be very skeptical about restoring previous rights to ex-felons, but then on the other hand, they are also generally opposed to firearm restrictions. How do you see the politics of this issue playing out? I know that’s not a legal question, but I’m curious.


AW: I agree. I think it’s interesting to see that the party mounting a Second Amendment challenge is often a criminal defendant post-Bruen. I don’t think that is what the challengers in Bruen expected. I think that the expected impact was to target things like assault weapons bans, which I think are on more tenuous legal footing, and we may see those cases go up too. Things like age restrictions, sensitive places laws, etc. Not challenges by criminal defendants, but those are the ones that are receiving a lot of attention. They will be the first ones to go up to the Supreme Court. I think that’s a bit of a surprise.

 

As far as the political aspect, I don’t know. It is an intricate area, where you sometimes see interesting bedfellows. There, you had public defenders being strongly on the side of the petitioner in Bruen and urging the Court to have a more expansive view of the Second Amendment. Sometimes, you see those
types of surprising alliances.


OA: Thank you for that, sir. I also have two more questions before we run out of time. First of all, I would like to ask if you know about any Second Amendment cases here in North Carolina that our readers should be following?


AW: Good question. I don’t off the top of my head. The big development in North Carolina this year has been the repeal of the state requirement to obtain a permit in order to purchase a handgun. That was repealed over Governor Cooper’s veto earlier this spring. I think there was a permitless carry bill, but that they decided not to go forward with it at this time. I think it’s an area where we might still see some movement, but the Republicans in the legislature are trying to take things slow. But that is definitely something to keep an eye on. I’m not aware of any cases in this state, and that’s not that surprising. Most of the movement on the civil side has been in states, as you would expect, that have more stringent gun regulations. New York, New Jersey, and so on.


OA: Thank you, sir. And to my second question, while our readers can definitely follow the Duke Center for Firearms Law, do you know of any other publications or sources that they should be reading if they want to learn more about Second Amendment law?


AW: Yes. Obviously, I’m biased though. The Duke Center for Firearms Law, available online, and our blog, Second Thoughts, is a great source. Other than that, there isn’t a whole lot out there. One that I have found to be helpful is The Trace, which has a daily update, and The Reload, which you have to be a subscriber to view but also has a great podcast that you can listen to.

 

OA: Thank you very much, sir. This is a great deal of wonderful information, and I hope our readers take full advantage of it. Have a great day!


AW: Thanks for having me. I enjoyed it.

[1] The Court granted certiorari in United States v. Rahimi on June 30, 2023, after this interview was
conducted.

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