For those of you keeping score—and I’m probably the only one—today’s installment is the 1,600th since I began posting news and comment on federal criminal justice issues back in 2015.
It’s probably not significant. If we had a Base 16 number system, it would only be Post 640. But the subject of this blog doesn’t often give us a reason to celebrate, so we had better take our wins where we find them.
SOMETHING IN THE AIR
If you remember Thunderclap Newman’s single hit “Something in the Air” (1969)—like I do—you’re getting too old. The band was singing about the revolution, which, of course, never arrived, but a lot of us are thinking that something may be in the air about the constitutionality of the felon-in-possession statute before the month of June comes to a close.
United States v. Rahimi, the decision everyone’s waiting for, doesn’t deal with felon-in-possession at all, but rather subsection 8 of 18 USC § 922(g). That subsection prohibits someone subject to a court-imposed domestic protection order from possessing a gun or ammo. But in the wake of New York State Rifle & Pistol Association v. Bruen, a 2022 SCOTUS decision, it is likely that § 922(g)–which bans a whole list of people from felons to drug users to illegal aliens to people with DPOs from having guns–violates the 2nd Amendment.
That would be good news for Hunter Biden.
It might be good news for a lot of people. The belief is that the Court will modify Bruen to add some “dangerousness” exception so that people who are proven to be dangerous with a gun can be prohibited. Such a decision would suggest that convicted felons who don’t have a history of dangerousness would not be subject to § 922(g)(1).
Some statutes are unconstitutional on their face, such as one, for example, that made insulting the President a felony. But others are only unconstitutional when applied to certain situations. The § 922(g)(1) felon-in-possession was unconstitutional when applied to Bryan Range, who had a single pretty minor food stamp felony that was 25 years old. The same statute might not be unconstitutional if applied to the Unabomber.
Zavien Canada was convicted of a § 922(g)(1) felon-in-possession, On appeal, he argued that his “felon-in-possession” offense should be thrown out because § 922(g)(1) is facially unconstitutional. Last week, the 4th Circuit cautiously rejected the argument, noting that there is something in the air.
“The law of the Second Amendment is in flux,” the 4th held, “and courts (including this one) are grappling with many difficult questions in the wake of Bruen. But the facial constitutionality of Section 922(g)(1) is not one of them. Indeed, no federal appellate court has held that Section 922(g)(1) is facially unconstitutional, and we will not be the first.”
The Circuit went on to suggest that if Zavien had raised an “as applied” challenge—that the felon-in-possession statute is unconstitutional as applied to his situation—the outcome might have been different: “Our decision is narrow. Because Canada has expressly disclaimed any sort of as-applied challenge, we “may” simply “assume for the sake of argument that there is some room for as-applied challenges” to Section 922(g)(1)…”
Rahimi will not settle the felon-in-possession debate, however the decision goes. However, it is likely to be a nail in the coffin (and a fairly large nail at that) for the constitutionality of the felon-in-possession statute.
United States v. Canada, Case No. 22-4519, 2024 USApp LEXIS 13271 (4th Cir. June 3, 2024)
New York State Rifle & Pistol Assn, Inc v. Bruen, 597 US 1 (2022).
– Thomas L. Root