In U.S. v. Harper, decided Sept. 30, 2022 by Chief Judge Leonard Strand (N.D. Iowa), but just posted on Westlaw, Harper is being prosecuted for being a felon in possession of a gun, as well as possessing a gun while an unlawful drug user. Harper raised, among other things, a RFRA defense, on the theory that "he is a Muslim who practices 'Sharia Law and its adherence to armed self-defense (including the possession of a firearm.).'" No, said the court:
Of course, the Government is not prosecuting Harper for practicing Sharia law. Rather, it is prosecuting him for possessing a firearm based on his status as a felon and unlawful user of a controlled substance and Harper is asserting his practice of Sharia law as a defense…. I must consider whether an accommodation should be made to prosecution under § 922(g)(1) and (3) based on Harper's religious belief that he is entitled to carry a firearm for self-defense that would still further the Government's compelling interest….
"Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment." RFRA provides that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the Government "demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that compelling governmental interest." "RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." …
I will assume without deciding that Harper's practice of possessing a firearm for self-defense was a sincerely held religious belief and that prosecution substantially burdened his exercise of religion. Therefore, it is the Government's burden to prove that prosecution of Harper is in furtherance of a compelling government interest and that it is the least restrictive means of furthering that interest. The Government argues "the gun control regime of the United States is a compelling governmental interest and can only be maintained by a systematic and uniform application."
