F. Lee Francis is an assistant professor of law at Mississippi College School of Law. This post is adapted from my forthcoming article Defining Dangerousness: When Disarmament is Appropriate.

In 1964, the United State Supreme Court, in Jacobellis v. Ohio, undertook to determine whether the state of Ohio’s ban on obscene materials violated the First Amendment. In a heavily fractured decision, the Court held that the ban did violate the protections granted under the First Amendment.

Yet, the most notable opinion from the decision was not the plurality authored by Justice Brennan, it was the concurrence by Justice Potter Stewart. Justice Stewart determined that all obscene materials, save for those deemed “hardcore”, were protected by the Constitution. However, rather than providing a clear definition or even a single example, Justice Stewart confidently concluded saying, “I know it when I see it.”

Similarly, in the context of the Second Amendment, many courts have employed the same “I’ll know it when I see it” logic to determine when an individual is so dangerous that his right to bear arms should be restricted. I argue that more is needed.

Consider the facts of United States v. Harrison. In this case, defendant Jared Harrison was stopped for running a red light. Upon approach of the vehicle an officer detected the odor of marijuana.  Officers did not find any contraband on Harrison’s person; however, officers did find marijuana-derived products inside the vehicle—including THC gummies and vaping cartridges. Harrison was subsequently arrested and charged under 18 U.S.C. § 922(g)(3).

Interestingly, the officers never conducted a field sobriety test, nor did they request a sample of blood to determine if Harrison was even under the influence of marijuana or any other unlawful substance.

Nevertheless, the government justified its prosecution of Harrison arguing that drug users, like the mentally ill, “have difficulty exercising self-control, making it dangerous for them to possess deadly firearms.” To follow the government’s reasoning here would effectively render the individuals in the 37 states that have legalized medical marijuana not only tantamount to individuals who are mentally ill, but would suggest their right to bear arms ought to be restricted because they were diagnosed with cancer or have some other medical condition. Surely, this is a bridge too far.

Ruling in Harrison’s favor, the district court explained that “mere use of marijuana does not indicate that someone is in fact dangerous.” However, in spite of this favorable ruling, the question remains: how does one define “dangerousness”?

I argue, in a forthcoming paper, Defining Dangerousness: When Disarmament is Appropriate, that the relevant inquiry centers on illicit use and imminent danger.  That is, do the facts and circumstances prove that an individual is in fact a danger. To put it another way, disarmament is appropriate when there exist demonstratable evidence that a person poses a significant and imminent risk of causing public injury.

I suggest that some additional factors to consider in assessing dangerousness are whether the individual possesses the specific intent to use a firearm illicitly, and manifests the actual ability to harm. Consider this example. Husband and wife are actively involved in a domestic dispute. Both parties are intoxicated. While her husband is in a separate room calling the police, wife runs to the bedroom, locates a firearm in the nightstand to hide it from her husband who has become quite enraged. Subsequently, wife is charged and arrested with possession of a firearm while intoxicated. Based on these facts, wife merely possessed the firearm to keep her enraged husband from finding it. She did not have the specific intent to use the firearm illicitly. Thus, her case should be dismissed.

I contend that a general showing of dangerousness—a mere allegation that an individual committed some unlawful offense absent a conviction for violent conduct or drug addiction, involving drugs such as methamphetamine—without more is an impermissible burden on an individual’s right to bear arms as protected under the Second Amendment. If a general showing of dangerousness were the standard, then any individual who ran a stop sign would be prohibited from possessing a firearm.