Tag Archives: 18 usc 922(g)

Government Tries to Cabin 5th Circuit on Felon-In-Possession Ruling – Update for December 3, 2024

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

5TH CIRCUIT REVERSES DISTRICT COURT ON 922(g) DISMISSAL

mustread241203Just last week, I had someone send me a forgettable decision by a backwater Federal district court in a circuit a thousand miles away from where the prisoner had been convicted. Suggesting that the case made his pending motion a dead-bang winner, he demanded, “You have to read this case!”

No, I don’t. The only court whose opinions are binding everywhere is the Supreme Court. A court of appeals decision is binding only in its own circuit and then only when the court publishes the decision. A district court’s opinion binds no one outside of the case it was issued in (called the law of the case doctrine, something we’ll take up at another time).

That doesn’t keep people from touting the latest LEXIS case from the Jerkwater, Kansas, federal district court as though Moses had carried it down the slopes of Mt. Sinai. Judges themselves don’t help: a district court especially is all too glad to cite some nonbinding case in support of its own conclusion without taking care to note that the other opinion is what lawyers call “persuasive authority.”

peppermintmocha24120A good “persuasive authority” decision and $6.25 will get you a Peppermint Mocha at Starbucks for a limited time. In fact, a Court of Appeals decision – if it is not “published” – is nonbinding on other panels of the same court. A “published” decision, on the other hand, cannot be reversed unless the court does it on an en banc rehearing (or it’s nullified by a Supreme Court case).

So what? The 5th Circuit, which has become notorious at the Dept of Justice for anti-922(g) decisions, last week reversed a decision by US District Court Judge Carlton Reeves – whose opinions on federal criminal law are especially important because his side gig is serving as chairman of the U.S. Sentencing Commission – that defendant Jesse Bullock’s 18 USC § 922(g) felon-in-possession indictment should be dismissed because of the Supreme Court’s 2022 New York State Rifle & Piston Association v. Bruen decision. Judge Reeves found that in the wake of Bruen, prohibiting felons from having guns violated the 2nd Amendment.

guns200304The 5th held that Jesse’s many prior felony convictions, which included aggravated assault and manslaughter (for shooting an unarmed bar bouncer and “firing a ‘barrage of bullets’ into a nearby crowd,” killing a 19-year-old passerby) meant that he could be banned from possessing guns in light of last summer’s SCOTUS opinion in United States v. Rahimi (an appeal from this Circuit’s holding that the defendant could have a gun despite a domestic protection order and a violent history). The 5th found that “a ban on Bullock’s ability to possess a firearm ‘fits neatly’ within our Nation’s historical tradition of firearm regulation.”

Last week’s decision was unpublished, meaning that it would not bind another Circuit panel considering the same issue (or even the same person if he possessed a gun on another occasion). However, the day after the unpublished opinion was issued, the Dept. of Justice filed a motion asking the 5th to publish the case, arguing that an opinion identifying “aggravated assault and manslaughter as among the predicate offenses that district courts may look to in assessing whether a defendant’s use of a firearm may be prohibited… has potential significance in other cases for which these previous offenses serve as § 922(g)(1) predicates.”

Jesse has opposed the motion, contending that the opinion is a ho-hum application of Rahimi, not worth the ink figuratively needed to publish. “This Court addressed the merits of the district court decision without requesting supplemental briefing” after Rahimi was decided. “No oral argument was held. If published, the panel’s decision would preclude other panels from considering the issue with the benefit of more robust briefing and argument.”

boxedin241203Jesse’s last argument is most to the point. The government fears the 5th, with the benefit of a lot of briefing and focus, might issue another Rahimi-type decision. Getting a summary holding that violent prior convictions disqualify someone from gun possession would box in the Circuit, requiring another Rahimi-type decision to be en banc.

United States v. Bullock, Case No. 23-60408, 2024 U.S. App. LEXIS 29938 (5th Cir., November 25, 2024)

– Thomas L. Root

6th Circuit Applies Williams to § 922 Cases – Update for October 18, 2024

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A CINCINNATI GUN SHOW

The 6th Circuit last week wasted no time finding practical applications for its August holding in United States v. Williams that while 922(g) may not categorically disqualify everyone within its prohibitions on firearms ownership, it does when dangerousness is involved.

gunshow241018Williams established that felons are among “the people” protected by the 2nd Amendment. Williams held that consistent with the 2nd Amendment, “our nation’s history and tradition demonstrate that Congress may disarm individuals they believe are dangerous,” and so “most applications of § 922(g)(1) are constitutional.” Applying that standard to defendant Williams, the panel concluded that the defendant’s § 922(g)(1) felon-in-possession conviction was constitutional in light of his extensive criminal record, which included aggravated robbery and attempted murder.

After Williams, defendants may still argue that their facts make them an individualized exception to the application of § 922(g)(1). That’s what Christopher Goins argued. He was on probation for a state felony when he had a friend buy him two AR-15 frame pistols at a gun store. Chris took possession of the firearms in the gun store parking lot in full view of surveillance cameras.

At the time Chris took delivery of the gun, he had multiple convictions for crimes punishable by imprisonment for more than one year, including a DUI, driving under the influence on a suspended license, and possession of drugs. A state court had initially sentenced Chris to one year of jail time for each of the three offenses, but it then withheld the sentence and instead gave Chris to 120 days of imprisonment and four years of probation. One condition of probation was that Chris could not possess a weapon of any kind.

The 6th upheld Chris’s § 922(g)(1) conviction, finding that the nation’s “historical tradition demonstrates that Congress may lawfully disarm probationers like Goins, who (1) are under a firearm possession limitation as a condition of probation, (2) are under a relatively short probation sentence for a dangerous crime, and (3) whose repeated and recent actions show a likelihood of future dangerous conduct.”

nickdanger220426The same day, another 6th Circuit panel ruled that Jaylin Gore’s conviction for possessing a stolen gun (18 USC 922(j)) and receipt or transfer of a gun while under indictment (922(n)) was consistent with the 2nd Amendment.

The Circuit ruled that “there is ample historical support for prohibitions on the purchase or receipt of stolen goods and “there is no indication that firearms were exempt from such laws.”

As for prohibiting receipt or transfer of a gun while under indictment, the 6th ruled, “§ 922(n)’s prohibition is comparable to the founding-era history of pretrial detention ‘in both why and how it burdens the 2nd Amendment right… Like pretrial detention, § 922(n) restricts indicted persons’ rights during the fraught period between indictment and trial, for the purpose of furthering public safety and protecting the integrity of the criminal process. And just as bail was denied outright only for defendants facing serious charges, so § 922(n) is triggered only by indictment for a felony charge… So for those who already possess one or more firearms, § 922(n) represents only a slight burden on the 2nd Amendment right; and even for those who do not, § 922(n)’s prohibition is a lesser burden than detention or permanent disarmament.”

Finally, the 6th held last Thursday that Sylvester Gailes, a guy described as a “serial perpetrator of domestic violence,” could not use the 2nd Amendment to avoid his § 922(a) conviction. Sly had repeatedly beaten the mother of his children (occasionally doing so in the presence of the kids). He had been convicted of multiple domestic violence misdemeanors.

Under 18 USC § 922(g)(9), someone convicted of a misdemeanor crime of domestic violence is prohibited from possessing a gun.

The Circuit ruled that “domestic violence convictions generally involve some sort of physical force… When the presence of a gun accompanies the use of physical force, the likelihood that abuse turns to homicide greatly increases… It is no surprise then that Congress sought to deprive people with domestic violence convictions from possessing firearms.”

guns170111The 6th held that “[t]aken together, Rahimi [which held that someone subject to a domestic protection order] and Williams evince that our history and tradition of firearm regulation support § 922(g)(9). Although § 922(g)(9) is by no means identical to the historical sources above or a founding-era regime, it does not need to be. The historical sources cited in Rahimi and Williams establish the constitutionality of modern firearms regulations targeting those who pose a clear threat of physical violence to another.

United States v. Williams, 113 F.4th 637 (6th Cir., 2024)

United States v. Goins, Case No 23-5848, 2024 U.S.App. LEXIS 25355 (6th Cir., October 8, 2024)

United States v. Gore, Case No 23-3640, 2024 U.S.App. LEXIS 25361 (6th Cir., October 8, 2024)

United States v. Gailes, Case No 23-5928, 2024 U.S.App. LEXIS 25571 (6th Cir., October 10, 2024)

– Thomas L. Root

SCOTUS Starts October 2024 Term With A Docket That Leaves Plenty of Space for New Cases – Update for October 8, 2024

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

NEW SUPREME COURT TERM LEAVES PLENTY OF ROOM ON DOCKET FOR GUNS, ELECTIONS AND TRUMP

Yesterday was the first Monday in October, and everyone knows what that means. The Supreme Court’s new season, known as October Term 2024, began its nine-month run with a couple of dry-as-toast non-criminal oral arguments.

vacationSCOTUS180924At this point, there are not many cases of interest on this year’s Supreme Court docket for federal criminal law followers. But the ABA Journal last week reminded readers that “a year ago, the 2023-24 term looked like it might be relatively sleepy. But that was before the court added cases on guns, abortion medication and two matters involving former President Donald Trump and the Jan 6, 2021, riot…”

The SCOTUS news for readers of this blog was released last Friday, when the Justices announced 15 new cases they would hear this term, all coming out of last week’s annual “long conference,” the annual culling of certiorari petitions that marks the end of SCOTUS’s summer recess.

Four of the certiorari grants involved criminal law issues. The only substantive federal criminal statute case is Thompson v. United States, which asks whether 18 USC § 1014 — making a “false statement” to influence certain financial institutions and federal agencies — also prohibits making a statement that is misleading but not false.

In Barnes v. Felix, the court will consider (in the context of a civil rights suit) whether the 4th Amendment, which prohibits police from using “unreasonable” force, depends on “the totality of the circumstances” or just under the “moment of the threat.” The reasonableness of an officer’s actions for 4th Amendment purposes is a fact-intensive inquiry. The question is whether the entire encounter with the person who is later contesting the seizure is examined in gauging whether the officer’s force is appropriate or whether only what happened in the narrow window when the officer’s safety was threatened is at issue.

In Perttu v. Richards, the issue is the technical but consequential question of whether under the Prison Litigation Reform Act, prisoners have a right to a jury trial concerning their exhaustion of administrative remedies where disputed facts regarding exhaustion are intertwined with the underlying merits of their claim.

Finally, Gutierrez v. Sanz, a capital case, deals with standing issues in conjunction with efforts by a state defendant to secure post-conviction DNA testing.

gunknot181009One issue sure to make it onto the Supreme Court docket is the constitutionality of 18 USC § 922(g). The leading case on the question of the constitutionality of the felon-in-possession statute, § 922(g)(1) – the 3rd Circuit Range v. Garland en banc decision – was remanded by SCOTUS in light of United States v. Rahimi last spring. The 3rd Circuit will hold oral argument on Range tomorrow.

So far this past summer, three circuits have grappled with Rahimi, resulting in three different approaches. Last August, the 8th Circuit held in United States v. Jackson that § 922(g)(1) was constitutional. A few weeks later, the 6th Circuit ruled in United States v. Williams that § 922(g)(1) is constitutional on its face and as applied to “dangerous people,” but not necessarily to all felons. On Sept 18, the 5th Circuit held in United States v. Diaz that § 922(g)(1) was constitutional as applied to a defendant once convicted of stealing a car based on the fact that 18th-century laws “authoriz[ed] severe punishments for thievery and permanent disarmament in other cases.”

mario170628Meanwhile, in Greene v. Garland, a case brought against the Dept of Justice by a Pennsylvania district attorney who is a registered medical marijuana user but wants to possess a gun, DOJ attorneys argue that the nationwide ban on marijuana users owning guns is constitutional, saying it aligns with other restrictions on gun ownership by dangerous, mentally ill or intoxicated people.

The DOJ’s position makes some sense here. Everyone knows how dangerous a district attorney can be…

SCOTUSBlog.com, Justices take up “false statement” dispute and rare capital case (October 4, 2024)

Thompson v. United States, Case No. 23-1095 (certiorari granted October 4, 2024)

Barnes v. Felix, Case No. 23-1239 (certiorari granted October 4, 2024)

Perttu v. Richards, Case No. 22-1298 (certiorari granted October 4, 2024)

Gutierrez v. Sanz, Case No. 23-7808 (certiorari granted October 4, 2024)

ABA Journal, Supreme Court’s sleepy-looking docket leaves room for potentially bigger cases to come (October 3, 2024)

Marijuana Moment, DOJ Says Allowing A Pennsylvania Prosecutor Who Uses Medical Marijuana To Possess A Gun Would Be ‘Dangerous’ (October 3, 2024)

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

United States v. Diaz, Case No. 23-50452, 2024 U.S. App. LEXIS 23725 (5th Cir. Sep. 18, 2024)

Greene v. Garland, ECF 32, Case No 1:24-cv-21 (W.D. Pa., filed October 1, 2024)

– Thomas L. Root

5th Circuit Suggests Felon-In-Possession May Sometimes Violate 2nd Amendment – Update for September 23, 2024

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NO GUNS FOR HORSE THIEVES… BUT MAYBE FOR OTHERS

While upholding a felon-in-possession conviction against Ronnie Diaz, the 5th Circuit ruled last week that 18 USC § 922(g)(1) nevertheless may violate the 2nd Amendment in some cases.

grandtheftauth240923

Ron’s conviction was not his first felon-in-possession rodeo. In 2014, he did three years in state prison in 2014 for stealing a car and evading arrest. Four years later, he was caught breaking into a car while carrying a gun and a baggie of meth. He did two years in state for a Texas charge of possessing a firearm as a felon. (Yeah, it’s illegal there, too).

After a November 2020 traffic stop that got kicked up to the Feds, Ron was convicted of 21 USC § 841(a)(1) drug trafficking, an 18 USC 18 USC § 924(c) count for possessing a gun during a drug crime, and a § 922(g)(1) felon-in-possession. Ron moved to dismiss the § 922(g)(1) as unconstitutional under New York State Rifle & Pistol Association v. Bruen. The district court denied him.

The district court denied Ron’s Bruen motion. Ron appealed, and last week, the 5th Circuit agreed.

Bruen addressed whether a state law severely limiting the right to carry a gun in public violated the 2nd Amendment right to bear arms. When a law limits 2nd Amendment rights, Bruen held, the burden falls on the government to show that the law is “consistent with this Nation’s historical tradition of firearm regulation.” This involves addressing “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” In Bruen, the Court held that the plain text of the 2nd Amendment protects the right to bear arms in public for self-defense and that the government had failed to “identify an American tradition” justifying limiting such behavior.

Then in United States v. Rahimi, the Supreme Court last June ruled that 18 USC § 922(g)(8) – that prohibits people under domestic protection orders from having guns – passed the Bruen test. Comparing § 922(g)(8) to colonial “surety and going armed” laws that prohibited people from “riding or going armed, with dangerous or unusual weapons to terrify the good people of the land,” the Supreme Court held that § 922(g)(8) was analogous to such laws,  only applied once a court has found that the defendant “represents a credible threat to the physical safety” and only applied only while a restraining order is in place.

Violating the “surety and going armed” laws could result in imprisonment. The 5th said that “if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that § 922(g)(8) imposes is also permissible.”

horsethief240923The 5th noted that “felony” is much too malleable a term to serve as a basis for deciding § 922(g)(1)’s constitutionality. Instead, it compared each of Ron’s prior convictions to colonial laws. Stealing a car, the Circuit decided, was analogous to colonial laws against horse thievery, and horse thieves in colonial America “were often subject to the death penalty.” Such laws “establish that our country has a historical tradition of severely punishing people like Diaz who have been convicted of theft,” meaning that a permanent prohibition on possessing guns passes 2nd Amendment muster.

“Taken together,” the Circuit said, “laws authorizing severe punishments for thievery and permanent disarmament in other cases establish that our tradition of firearm regulation supports the application of § 922(g)(1) to Diaz.”

Considering the obverse, the Diaz opinion suggests that other offenses unknown in colonial times – like selling drugs, downloading child porn, securities fraud, or conspiracy to do anything illegal – could not trigger the felon-in-possession statute consistent with the 2nd Amendment. Requiring a court to parse a defendant’s priors in order to convict him of a § 922(g)(1) would make a confusing hash of any felon-in-possession case.

Writing in his Sentencing Policy and Law blog, Ohio State University law professor Doug Berman observed that “the 8th Circuit has categorically rejected 2nd Amendment challenges to § 922(g)(1)… whereas the 6th Circuit has upheld this law “as applied to dangerous people.” The 5th Circuit has now upheld the law… based on the fact that there were Founding era laws ‘authorizing severe punishments for thievery and permanent disarmament in other cases’… [T]he fact that three circuits have taken three different approaches to this (frequently litigated) issue is yet another signal that this matter will likely have to be taken up by SCOTUS sooner rather than later.”

United States v. Diaz, Case No. 23-50452, 2024 U.S. App. LEXIS 23725 (5th Cir., September 18, 2024)

New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022)

United States v. Rahimi, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024)

Sentencing Policy and the Law, Fifth Circuit panel rejects Second Amendment challenge to federal felon in possession for defendant with prior car theft offense (September 20, 2024)

– Thomas L. Root

Felon-In-Possession 2nd Amendment Challenges Are Trending – Update for September 20, 2024

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922(g) FELON IN POSSESSION CHALLENGES EXPLODE AFTER BRUEN

The Trace reported last week that 55% of over 2,000 federal court decisions citing New York State Rifle & Pistol Association v. Bruen over the past two years have challenged the constitutionality of 18 USC § 922(g)’s ban on felons possessing guns and ammo, “making it the single most frequently contested statute by far.”

guns200304The latest example was handed down two days ago in United States v. Diaz. In that case, the 5th Circuit ruled that just being a felon was insufficient to make the application of 18 USC § 922(g)(1) consistent with the Second Amendment. But where the defendant had been convicted of a felony of theft, that “would have led to capital punishment or estate forfeiture” at the time the Second Amendment was ratified, “disarming [the defendant] fits within this tradition of serious and permanent punishment” and is thus constitutionally applied.

I will write more about Diaz on Monday. For now, back to the trendline:

The Trace reported that “at least 30 of the challenges to the felon gun ban have succeeded. While that ratio may seem small, it marks a stark departure from the past, when effectively none succeeded, and it shows that Bruen has cracked the longstanding consensus that people convicted of serious crimes may constitutionally be barred from gun ownership.”

When weighing the felon gun ban, judges have distinguished between violent and nonviolent offenses. But a former prosecutor told The Trace (an unapologetically anti-gun publication), that drawing the line is tough. “Who’s dangerous? What is your definition of dangerous? It’s easier to have a bright line. But that bright line is gone.”

Andrew Willinger, the executive director of the Duke Center for Firearms Law – which disseminates and supports reliable, balanced, and insightful scholarship and programming on firearms law – said it remains unclear whether banning gun possession among entire categories of people, like felons, is constitutional, particularly when their convictions were for nonviolent offenses that posed no obvious danger to the public.

“You’re really talking about categorical group determinations, rather than any kind of individualized finding of a threat of danger,” Willinger said. “And [United States v.] Rahimi doesn’t endorse [categorical prohibitions], but it also doesn’t rule them out, right?”

gun160711No one can know how the Supreme Court will rule when the felon gun ban finally gets to the high court, although no one can doubt that it will. When Justice Amy Coney Barrett was a 7th Circuit judge, she wrote a dissent favoring restoration of gun rights to nonviolent felons. “That is probably the direction that the Supreme Court is headed if and when it takes up these cases,” Willinger said, “which I think it probably has to do at some point in the near future.”

The Trace, More Than a Thousand Felons Have Challenged Their Gun Bans Since the Supreme Court’s Bruen Decision (September 12, 2024)

United States v. Diaz, Case No. 23-50452, 2024 U.S. App. LEXIS 23725 (5th Cir., September 18, 2024)

– Thomas L. Root

A Spate of 2nd Amendment Decisions – Update for September 3, 2024

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GUNNING FOR THE 2ND AMENDMENT

iloveguns221018A Quick and Categorical Denial: While the 6th Circuit took a deep dive into post-Rahimi 2nd Amendment law last week – holding that an ex-felon convicted of a nonviolent offense may not be subject to 18 USC § 922(g)(1)’s limitation on possessing a gun or ammo – the 8th Circuit swatted away any argument that 18 USC § 922(g)(1) was unconstitutional as applied to Darris Mull, a defendant with prior nonviolent drug felony convictions.

“Mull’s argument is foreclosed by 8th Circuit precedent,” the appellate court said, citing United States v. Jackson, a decision holding that even after United States v. Rahimi, 18 USC 922(g)(1) does “not violate the 2nd Amendment as applied to defendant whose predicate offenses were non-violent drug offenses.”

The Circuit also noted its decision two weeks ago in United States v. Cunningham that Jackson forecloses any argument that there must be a “felony-by-felony determinations regarding the constitutionality of § 922(g)(1) as applied to a particular defendant”), the opposite of what the 6th Circuit held in its Williams holding.

United States v. Mull, Case No. 23-3424, 2024 U.S.App. LEXIS 21943 (8th Cir. Aug 29, 2024)

United States v. Jackson, Case No. 22-2870, 2024 U.S.App. LEXIS 19868 (8th Cir. Aug 8, 2024)

United States v. Cunningham, Case No. 22-1080, 2024 U.S.App. LEXIS 20715 (8th Cir. Aug 16, 2024)

5th Circuit Holds Alien-In-Possession is Constitutional But Sober Doper-in-Possession is Not: Last week, the 5th Circuit split on a pair of § 922(g) cases.

Jose Massina-Canto was convicted under 18 USC § 922(g)(5) of being an illegal alien in possession of a gun. He argued that § 922(g)(5) violates the 2nd Amendment under New York State Rifle & Pistol Assn v. Bruen and Rahimi.

The 5th held that because Bruen and Rahimi do not “unequivocally abrogate” Circuit precedent in United States v. Portillo-Munoz, “under this circuit’s rule of orderliness, we are bound to follow Portillo-Munoz.”

doggun240213The § 922(g)(3) prohibition on people who use illegal drugs possessing guns is a different matter. In United States v. Connelly, the Circuit held that while § 922(g)(3) is not unconstitutional in all situations (such as some on meth shooting up farmers’ mailboxes), it is unconstitutional as applied to a defendant who uses weed and coke occasionally but is a “sober citizen not presently under an impairing influence and… [not] was intoxicated when she was arrested.”

The 5th said that by regulating a defendant based on habitual or occasional drug use, § 922(g)(3) imposed a far greater burden on her 2nd Amendment rights than history and the tradition of firearms regulation can support.

United States v. Medina-Cantu, Case No. 23-40336, 2024 U.S.App. LEXIS 21730 (5th Cir. Aug 27, 2024)

United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011)

United States v. Connelly, Case No. 23-50312, 2024 U.S.App. LEXIS 21866 (5th Cir. Aug. 28, 2024)

carriefgun170807Kansas District Court Holds § 922(o) on Possessing Machine Gun is Unconstitutional ‘As Applied’: Complaining that the statutory definition of a machine gun is “extremely broad,” enough to encompass aircraft-mounted automatic cannon to a small stun gun to a BB gun that shoots multiple rounds of projectiles using compressed air,” a district court ruled that 18 USC § 922(o) – that outlaws possession of a “machinegun” (and only the U.S. Code calls a machine gun a “machinegun”) – is unconstitutional as applied to “bearable arms” such as defendant Tamori Morgan’s select-fire AR-15 and his Glock giggle switch (that makes a Glock pistol full auto).

The court rejected the Government’s attempt to show that 18th-century law provides a basis for § 922(o). Those laws banned breaching the peace with unusual or dangerous weapons, but unlike those laws, the Court ruled, § 922(o) “says nothing about the manner in which machineguns are carried or displayed. Instead, § 922(o) criminalizes the mere possession of such weapons without regard to how the possessor uses them.”

The Court also rejected the Government’s argument that the 2nd Amendment “would allow weapons to be prohibited solely on the basis that they are ‘dangerous and unusual” or ‘highly unusual in society at large.’”

The Court noted that possessing a machine gun is not illegal, but rather only possessing a machine gun that is not registered:

There are over 740,000 legally registered machineguns in the United States today,” the Court said. “Machineguns have been in existence for well over a century. While the federal government has regulated transfer and possession of such weapons since passage of the National Firearms Act in 1934,” even now, “it is perfectly legal for a person who has not been divested of his firearm rights under some other provision of law to acquire and possess a machinegun… In that sense, machineguns are not unusual. The government fails to address these facts, and thus fails to meet its burden to demonstrate that possession of the types of weapons at issue in this case are lawfully prohibited under the 2nd Amendment.

On a Reload podcast, 2nd Amendment attorney Matt Larosiere predicted the case is quite likely to be appealed and unlikely to win at the next level, but nevertheless the Morgan decision “would help him and other gun-rights activists in future cases against the ban as well as other portions of the NFA.”

United States v. Morgan, Case No. 23-10047, 2024 U.S.Dist. LEXIS 149550 (D. Kan. Aug 21, 2024)

The Reload, Podcast: Gun-Rights Lawyer Matt Larosiere on a Federal Judge Ruling Against the Machinegun Ban (September 1, 2024)

– Thomas L. Root

Open Season on Gun Laws – Update for August 13, 2024

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FURBALL OVER SECOND AMENDMENT CONTINUES

lotsalaw240813As a young pup in law school a half-century ago, I had a contract law professor, Robert J, Nordstrom, who was as theatrical as he was brilliant. One day while discussing an obscure point of contract law, he dramatically waved his arm in the general direction of the law library and said, “Remember, people, there’s enough law in there for everybody.”

I got his point. A canny lawyer could find a decision somewhere in the law books that supported whatever position – however ridiculous – he or she wanted to take. Turns out that the same is true of history.

After New York State Rifle & Pistol Association v. Bruen, lawyers stampeded to the history books to find evidence that the many statutes regulating guns on the federal and state books had 18th and 19th-century precedents. Then, last June’s United States v. Rahimi decision relaxed the Bruen standard a bit, clarifying that the historical regulation didn’t have to be identical, just analogous.

In other words, the history doesn’t have to fit exactly. It just has to sort of fit. What’s more, in the fitting, the courts can draw such conclusions as they wish. The results are a pastiche of contradictions. For instance, AR-15s can be banned in Maryland but not in New Jersey.

In the last two weeks alone

• the 8th Circuit quickly upheld its decision that 18 USC § 922(g)(1) did not violate the 2nd Amendment when applied to a defendant previously convicted of a drug offense. The case had been appealed to the Supreme Court but was remanded for the Circuit to reconsider it in light of Rahimi. The Circuit ruled that the Supreme Court said in District of Columbia v. Heller that nothing has “cast doubt on longstanding prohibitions on the possession of firearms by felons,” and that neither Bruen nor Rahimi nor historical analysis changed that.

United States v. Jackson, Case No. 22-2870, 2024 U.S.App. LEXIS 19868 (8th Cir., Aug. 8, 2024)

• the 11th Circuit ruled that neither Bruen nor Rahimi “abrogate[d] our previous holding that § 922(g)(1) does not violate the 2nd Amendment because “felons are categorically ‘disqualified’ from representing their 2nd Amendment right under Heller.”

United States v. Lowe, Case No. 22-13251, 2024 U.S.App. LEXIS 19494 (11th Cir. Aug. 5, 2024)

minuteman240813• the 4th Circuit upheld Maryland’s ban on “assault weapons,” concluding that guns such as the popular AR-15 platform (perhaps 25 million copies in civilian hands in the United States) are outside 2nd Amendment protection because they are “military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.” The Circuit cited Blackstone’s Commentaries on the Laws of England (1769) that noted existing prohibitions on “riding or going armed, with dangerous or unusual weapons, which would terrify the good people of the land.”

Bianchi v. Brown, Case No. 21-1255, 2024 U.S.App. LEXIS 19624 (4th Cir. Aug. 6, 2024)

• on July 30, the US District Court for New Jersey ruled that the state’s AR-15 platform ban violated the 2nd Amendment because the style of rifle is commonly owned throughout the United States and well-adapted for self-defense.

Association of New Jersey Rifle & Pistol Clubs, Inc., v. Platkin, Case No. 18-10507, 2024 U.S.Dist. LEXIS 134737, (D.N.J., July 30, 2024)

• In the same week, the 4th ruled that 18 USC § 922(k) – which outlaws possession of a gun with an obliterated serial number – did not violate the 2nd Amendment. The Circuit said that because “we cannot fathom any common-sense reason for a law-abiding citizen to want to use a firearm with an obliterated serial number for self-defense, and there is no evidence before us that they are nonetheless commonly lawfully used, we conclude that firearms with obliterated serial numbers are not in common use for a lawful purpose and they therefore fall outside the scope of the 2nd Amendment’s protection.”

United States v. Price, Case No. 22-4609, 2024 U.S.App. LEXIS 19623 (4th Cir. Aug. 6, 2024)

furball240813The more we see the Bruen standard applied, the confusing-er it gets. The Rahimi holding, at least this early in the game, does not seem to have helped a lot.

Professor Nordstrom might have said, “There’s enough history out there for everyone.”

Pick your facts and make your holdings.

– Thomas L. Root

Hallelujah! It’s Blog Post No. 1600 – Update for June 13, 2024

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1600240613For 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

thunderclap240613If 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.

nickdanger220426It 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.”

gun160711The 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

Ninth Circuit Says 922(g)(1) Unconstitutional for Nonviolent Felons – Update for May 13, 2024

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

9th CIRCUIT HOLDS NONVIOLENT FELONS MAY POSSESS GUNS

A 9th Circuit panel held 2-1 last week that a defendant with five prior nonviolent felony convictions was not subject to 18 USC § 922(g)(1)’s prohibition on possessing guns or ammo under the Second Amendment.

In what may be the biggest Second Amendment ruling since the 3rd Circuit’s Range v. Attorney General decision last June, the 9th found that the Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision of 2022 means that § 922(g)(1)’s application to people with nonviolent felony convictions violates the Constitution.

throwgun240513Steve Duarte had five prior felony convictions for fleeing and eluding, possession of a controlled substance, and California’s own  felon-in-possession law when the police pulled him over for erratic driving. Naturally, Steve fled (it had worked so well for him before), and just as naturally, the police caught him. But before he was finally pulled over, Steve tossed a handgun from the car window.

The police recovered both the gun and Steve. The Feds picked up the case, with Steve being charged federally with § 922(g)(1) felon-in-possession. 

Steve went to trial and lost. But after Bruen was decided while his appeal was pending, Steve argued that his conviction was unconstitutional. He maintained that under Bruen, § 922(g)(1) “violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.”

The 9th Circuit rejected its 2010 United States v. Vongxay holding that the Second Amendment doesn’t invalidate laws prohibiting convicted felons from possessing guns: “Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history….”

kidgun240125Applying Bruen, the 9th held that the handgun was an “arm” and Steve’s reason for carrying it–self-defense–“falls within the Second Amendment’s plain language.” The Circuit rejected the Government’s contention that the Second Amendment’s term “the people” excluded convicted felons “because they are not members of the ‘virtuous’ citizenry… Bruen and District of Columbia v. Heller foreclose that argument because both recognized the ‘strong presumption’ that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to ‘all Americans,’ not an ‘unspecified subset’.”

Once the right is established, Bruen holds, the Government must prove that § 922(g)(1)’s prohibition as applied to the defendant in question “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. The Government could not show that disarming nonviolent felons had a “well-established and representative historical analogue” that “imposed a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s “sweeping, no-exception, lifelong ban.”

“We do not base our decision on the notion that felons should not be prohibited from possessing firearms,” the decision noted. “As a matter of policy, 922(g)(1) may make a great deal of sense. But ‘the very enumeration of the Second Amendment right’ in our Constitution ‘takes out of our hands… the power to decide’ for which Americans ‘that right is really worth insisting upon.”

The impact of Duarte may be attenuated, however, because the Supreme Court is expected to issue its decision in United States v. Rahimi sometime in the next six weeks. Rahimi, which focuses on whether §922(g)(8)’s prohibition on people subject to a domestic relations protection order possessing guns is constitutional after Bruen, is widely expected to further define the Second Amendment limits of § 922(g).

gunfreezone170330Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman observed that “[t]he location and timing of this ruling is almost as interesting as its substance. Many hundreds of § 922(g)(1) cases are prosecuted in this big circuit each year, so the echo effects of this ruling could prove profound (though I would guess not that many involve persons with only nonviolent priors). And, we are likely only weeks away from the Supreme Court finally handing down an opinion in the Rahimi case to address the application of Bruen to a different section of § 922(g).

Berman observes:

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amendment test is to be applied to broad federal criminal gun control laws. I would expect the coming Rahimi opinion will lead to the 9th Circuit reviewing this important Duarte ruling in some way, though whether that is in the form of en banc review or panel reconsideration might turn on what Rahimi actually says.

United States v. Duarte, Case No 22-50048, 2024 U.S. App. LEXIS 11323 (9th Cir, May 9, 2024)

New York State Rifle & Pistol Assn v. Bruen, 597 US 1 (2022)

District of Columbia v. Heller, 554 US 570 (2008)

Sentencing Law and Policy, Split 9th Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen (May 10, 2024)

– Thomas L. Root

Rahimi Could Be Watershed for § 922(g) Felon In Possession – Update for April 15, 2024

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

CHRISTMAS SEASON AT THE SUPREME COURT


scotusxmas240415We’re entering what I always think of as Christmas season at the Supreme Court, the final 10 weeks of what is anachronistically called “October Term 2023.”  With 75% of the Court’s term done, only about 24% of its opinions have been issued. That’s common: there’s always a flurry of decisions issued in late April, May and June, with the most controversial decisions saved for last.

The most consequential criminal case yet to be decided, I believe, is United States v. Rahimi. In 2022, the Supreme Court in N.Y. State Rifle & Pistol Assn. v. Bruen – relying on the Second Amendment – invalidated a New York law that forbade individuals to carry a gun in public unless they could persuade a government official that they faced some extraordinary threat to their personal safety. Applying “originalism,” the judicial philosophy that legal text should be interpreted based on the original understanding at the time of adoption, SCOTUS reasoned that a right reserved to a tiny subset of the population (the right to carry a gun) was an encroachment on a “right of the people” that the Constitution says “shall not be infringed.”

But Bruen reaches further, holding that when defending a law that deprives an individual of the freedom to keep or bear arms, the government must show that the law “is consistent with the nation’s historical tradition of firearm regulation.” The absence of a historical regulation “distinctly similar” to a modern gun-control law is evidence of the modern regulation’s unconstitutionality.

Laws banning all felons from gun possession were not adopted until the 1960s.

In Rahimi, the 5th Circuit applied the Supreme Court’s Bruen decision, holding that 18 USC § 922(g)(8) – which prohibited people subject to domestic violence protection orders from possessing guns – violated the Second Amendment because, at the time the Second Amendment was adopted, no law keeping people subject to a domestic violence protection order was on anyone’s books.

whataburger230703Writing last week in the New York Times, George Mason University law professor Nelson Lund said, “Under Bruen’s originalist test, Rahimi should be an easy case. The government has not informed the Supreme Court of a single pre-20th-century law that punished American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes. Not one.”

The problem is that the subject of the Rahimi case, Zackey Rahimi, is an awful defendant. His ex-girlfriend obtained a domestic violence protection order against him on the ground that he had assaulted her, and he has been charged with several crimes involving the misuse of firearms, including shooting up a What-a-Burger when his friend’s credit card was declined.

“If the court pretends that a historical tradition of such laws existed,” Lund wrote, “it will not be faithful either to Bruen’s holding or to the court’s repeated insistence that the right to keep and bear arms is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”

But following the Bruen precedent could be tough on the Justices, because the outcry of letting the Zack Rahimis of the nation keep their guns will be fierce. Still, Rahimi may have a silver lining for the § 922(g)(1) felon-in-possession statute. If Zack wins, that just about guarantees that Garland v. Range – in which the 3rd Circuit ruled that Bruen means that a guy convicted 25 years before of a minor food stamp fraud is allowed to possess a gun – will be upheld. If Zack loses, I suspect SCOTUS will write some “dangerousness” exception into the Bruen standard. Even if that happens, many  § 922(g)(1) defendants will easily jump that hurdle.

toomuchguns240416Writing in his Sentencing Law and Policy blog last week, Ohio State University law prof Doug Berman said, “In the votes and voices of a number of Justices (and others), I sometimes notice that affinity for originalism starts running out of steam when the outcomes start running in concerning directions. Rahimi may prove to be another data point on that front in the coming months.”

United States v. Rahimi, Case No. 22-915 (Supreme Ct, argued November 7, 2023)

New York Times, The Fidelity of ‘Originalist’ Justices Is About to Be Tested (April 9, 2023)

Sentencing Law & Policy, Is Rahimi an “easy case” for any true originalist to rule for the criminal defendant and against the prosecution? (April 10, 2024)

– Thomas L. Root