We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

4TH CIRCUIT SAYS NO FELON IS ON SANTA’S GOOD LIST FOR 2ND AMENDMENT PROTECTION

Ever since the Supreme Court decision in New York State Rifle & Pistol Assn. v. Bruen, courts of appeal have been struggling with whether the 2nd Amendment permits some people with prior felonies to possess a gun despite 18 USC § 922(g)(1)’s blanket prohibition against anyone with a felony conviction from having a gun or ammo. The 3rd and 9th Circuits have said some may (although both holdings are being further reviewed in light of United States v. Rahimi), and the 6th has suggested that some felonies are not so dangerous that § 922(g) can apply consistent with the 2nd Amendment.

In Rahimi, the Supreme Court warned against courts holding that some groups categorically are excluded from 2nd Amendment protection. That caution did not deter the 4th Circuit, however. Last week, the 4th ruled that unless “a felony conviction is pardoned or the law defining the crime of conviction is found unconstitutional or otherwise unlawful,” anyone with a felony conviction is excluded from the sweeping definition of “law-abiding” citizen protected by the 2nd Amendment.

“[T]here is no need for felony-by-felony litigation regarding the constitutionality of Section 922(g)(1),” the Circuit ruled last week. “[B]ecause felons, by definition, have ‘demonstrated disrespect for legal norms of society,’ the legislature has determined that ‘the category as a whole present[s] an unacceptable risk of danger if armed.’ That legislative judgment accords with historical tradition regulating non-law-abiding persons and is consistent with the Supreme Court’s repeated instruction that longstanding prohibitions ‘on the possession of firearms by felons and the mentally ill, are presumptively lawful.”

The question this decision and the others raise is not whether – but rather when – the constitutionality of § 922(g)(1) will be settled by the Supreme Court.

United States v. Hunt, Case No. 22-4525, 2024 U.S. App. LEXIS 32089 (4th Cir., December 18, 2024)

– Thomas L. Root