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STRIDENT 8TH CIRCUIT DISSENT CALLS 18 USC § 922(g) UNCONSTITUTIONAL

Since the Supreme Court’s New York State Rifle & Pistol Ass’n, Inc. v. Bruen decision over a year ago, the constitutionality of just about every federal limitation on gun possession (short of machine guns and howitzers) has been thrown into question. The most important limitation to most of us is 18 USC § 922(g)(1), the messy statute prohibiting some convicted felons (but not all of them, see 18 USC § 921(a)(20) for the confusing details) from possessing some guns or all ammo.

Some appeals courts have ruled that prohibiting the users of controlled substances from possessing guns is unconstitutional. One District Court has held that denying gun possession to someone under indictment is unconstitutional, a case the government has appealed to the 4th Circuit. The 5th Circuit has held that denying a gun to someone subject to a domestic protection order is unconstitutional, a case now before the Supreme Court in United States v. Rahimi.

The most-watched case currently is the 3rd Circuit’s Range v. Attorney General. After a three-judge panel summarily upheld the constitutionality of § 922(g)(1)’s limitation that prevented a guy convicted of a minor fraud three decades ago from having a gun, the Circuit issued an en banc decision last June resoundingly reversing that position. The rehearing decision held that § 922(g)(1) was unconstitutional as applied to a nonviolent guy like Bryan Range.

Two weeks ago, the government got the Supreme Court to extend the time to seek certiorari on Range until October 5.

You may recall that a week before Range was handed down in June, a three-judge panel in the 8th Circuit rejected defendant Joe Jackson’s claim that “he had a constitutional right under the 2nd Amendment to possess a firearm as a convicted felon.” Joe argued that the only test consistent with the 2nd Amendment was whether the defendant was dangerous to the public, not whether he or she was a felon. The panel disagreed, ruling that status as a felon was enough: “Legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” the Jackson panel wrote. “Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1)and the prohibition on possession of firearms by felons.”

Last week, the 8th Circuit denied Joe’s petition for en banc rehearing but did so with a strong dissent by four of the appellate judges. The dissenters complained that the panel decision gives “second-class” treatment to the 2nd Amendment and “creates a group of second-class citizens: felons who, for the rest of their lives, cannot touch a firearm, no matter the crime they committed or how long ago it happened.” They argued that the nation’s historical tradition of firearms control was consistent with a focus on dangerousness, not on felon status:

Disarmament is about dangerousness, not virtue. We know that because colonial and post-ratification gun laws targeted rebellion and insurrection, not criminality. There have always been criminals, but there is no suggestion in any “historical analogue” that criminality alone, unaccompanied by dangerousness, was reason enough to disarm someone. And history certainly does not support Jackson’s unbending rule that felons can never win an as-applied challenge, no matter how non-violent their crimes may be or how long ago they happened.

Given that the government will seek Supreme Court review of Range (and the government usually gets certiorari when it asks for it) and the 8th Circuit’s Jackson case and Range are diametrically opposed, a Supreme Court ruling on whether § 922(g)(1) is constitutional as applied to nonviolent felons within the next year seems more certain than ever.

United States v. Jackson, Case No. 22-2870, 2023 USApp LEXIS 22991 (8th Cir. Aug. 30, 2023)

United States v. Jackson, 69 F.4th 495 (8th Cir. 2023)

Range v. Attorney General of the United States, 69 F.4th 96 (3d Cir. 2023)

Order, Attorney General v. Range, Case No. 23A140 (S.Ct., Aug 25, 2023)

Sentencing Law and Policy, Dissenting from denial of en banc review, Eighth Circuit judges make case that blanket felon disarmament violates the Second Amendment (August 31, 2023)

– Thomas L. Root