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7TH REMANDS 2ND AMENDMENT GUN POSSESSION CASE IN WAKE OF BRUEN

Patrick Atkinson was convicted 25 years ago of federal mail fraud. After maintaining an otherwise clean record for a generation, he wanted a gun. But because 18 USC § 922(g)(1) bars gun possession for anyone convicted of “a crime punishable by imprisonment for a term exceeding one year,” he could not buy one. He sued seeking to have § 922(g)(1) declared unconstitutional as applied to him.

Relying on 7th Circuit precedent from prior to last summer’s New York State Rifle & Pistol Ass’n v. Bruen decision, the district court dismissed Pat’s case. He appealed.

Last week, the 7th Circuit sent it back for consideration in light of Bruen’s holding.

“Bruen announced a new framework for analyzing restrictions on the possession of firearms,” the Circuit ruled. “The new approach anchors itself exclusively in the 2nd Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively proving that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms… The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen. In these circumstances, we think the best course is to remand to allow the district court to undertake the Bruen analysis in the first instance.”

Two recent decisions have considered the constitutionality of the felon-in-possession statute. On June 8, the 3rd Circuit held the statute unconstitutional in Range v. Attorney General. Six days before that, the 8th Circuit ruled the opposite way in United States v. Jackson.

Atkinson v. Garland, Case No. 22-1557, 2023 U.S. App, LEXIS 15357 (7th Cir., June 20, 2023)

– Thomas L. Root