Tag Archives: 2nd amendment

Bryan Gets His Gun – Update for April 24, 2025

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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.

GOVERNMENT ENDS RANGE V. ATTY GENERAL NOT WITH A BANG BUT A WHIMPER

fudd250424Last December, the 3d Circuit held that the 18 USC 922(g)(1) felon-in-possession statute was unconstitutional as applied to Bryan Range. Bryan’s recent criminal history included nothing more than a few traffic tickets and fishing without a license, but a quarter century before, he was convicted of making a false statement to get food stamps for his hungry family. That was enough to trigger the F-I-P prohibition on his possessing a gun.

The en banc opinion held in essence that a prior nonviolent offense that qualified under 18 USC 922(g)(1) to prohibit someone from possessing a gun violated the 2nd Amendment. Applying New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, the Circuit held that Bryan

remains one of ‘the people’ protected by the 2nd Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms. More than two decades after he was convicted of food-stamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm. The record contains no evidence that Range poses a physical danger to others. Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.

This was not the case’s first rodeo. An en banc opinion held the same for Bryan in June 2023, but the Biden Dept of Justice sought Supreme Court review. While the petition was pending, the Supreme Court handed down Rahimi, a case that held that temporarily disarming someone subject to a domestic protection order complied with the 2nd Amendment. SCOTUS remanded all pending 2nd Amendment challenges on its docket – including Range – for reconsideration in light of Rahimi.

gun160711The 3d Circuit ruled that the end of 2024 that nothing in Rahimi changed its position on Bryan’s 2nd Amendment right to buy a hunting rifle. I was fairly sure that the government would head to the Supreme Court again in order to protect America from the dangerous likes of Bryan. Indeed, the DOJ sent signals that it was seriously considering doing just that.

In mid-March, President Trump’s Acting Solicitor General asked the Supreme Court for extra time to decide what to do with Range, reporting that she

has not yet determined whether to file a petition for a writ of certiorari in this case. The additional time sought in this application is needed to continue consultation within the government and to assess the legal and practical impact of the Court of Appeals’ ruling. Additional time is also needed, if a petition is authorized, to permit its preparation and printing.

SCOTUS obliged with an extension until last Tuesday (April 22).

With no fanfare, DOJ let the revised deadline pass without a petition for certiorari being filed. This means that the Range decision is final, and in the 3d Circuit at least, people who have been convicted of nonviolent felonies now have a path to restore their gun rights.

What the DOJ decision not to challenge Range at the Supreme Court might mean for the broader question of the as-applied constitutionality of 922(g)(1) is less clear. It could be that DOJ’s compliance with President Trump’s executive order to lessen the burden on 2nd Amendment rights has led it to permit jurisprudence to develop that ties F-I-P to dangerousness rather than the existence of a prior conviction. It could also be a strategic decision that Range was not the hill the government wanted to die on, and that there are better cases in the SCOTUS pipeline (Duarte, perhaps) for the government to use to draw a line in the F-I-P sand.

circuitsplit220516Ohio State University law professor Doug Berman, writing last December in his Sentencing Law and Policy blog, suggested that “[b]ecause this Range ruling creates a clear circuit split on the constitutionality of 18 USC 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the U.S. Dept of Justice. But maybe the new incoming [DOJ] officials might not want to test the application and reach of the 2nd Amendment in this particular ‘narrow’ case.”

Regardless of the DOJ’s reasons for taking a pass on Range, the en banc decision is now final, and Bryan can have his gun. What is more, the finality is an incremental but very clear step toward resolving the question of how Bruen and Rahimi limit the reach of F-I-P. Certainly, people in 3rd Circuit with F-I-P convictions may have a path open to them (albeit one with procedural hurdles to cross) to challenge their 18 USC § 922(g)(1) convictions.

Dept of Justice, Application for an Extension of Time Within Which to File a Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit, Case No. 24A-881 (March 12, 2025)

Range v. Attorney General, 124 F.4th 218 (3d Cir., December 23, 2024)

Sentencing Law and Policy, En banc 3rd Circuit again finds federal felon-in-possession ban unconstitutional as applied to Bryan Range (December 23, 2024)

– Thomas L. Root

A Change in DOJ Approch to 922(g)(1)? – Update for April 11, 2025

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CURIOUS DEVELOPMENT(?) ON § 922(g)(1)

You may remember that the leading case on whether the 18 USC § 922(g)(1) felon-in-possession (F-I-P) statute complies with the 2nd Amendment is the 3rd Circuit decision, Range v. Garland (now renamed in honor of new Attorney General Pam Bondi).

gunfreezone170330Bryan Range, disqualified from owning a gun because of a conviction 25 years ago, sued the government, arguing that F-I-P was unconstitutional as applied to his case, because his conviction was non-violent – a food-stamp false statement case – and it was 25 years in the past. The 3rd Circuit agreed in an en banc opinion in 2023, and the government took it to the Supreme Court.

SCOTUS remanded it for further consideration in light of United States v. Rahimi. Last December, the 3rd Circuit again found F-I-P unconstitutional as applied to Bryan’s situation.

Late last month, Bondi filed for a 30-day extension to decide whether to ask the Supreme Court to accept the case for review. She said, “The Acting Solicitor General has not yet determined whether to file a petition for a writ of certiorari in this case. The additional time sought in this application is needed to continue consultation within the government and to assess the legal and practical impact of the court of appeals’ ruling…”

On February 7, President Trump gave Bondi 30 days to submit a policy plan for enacting pro-gun reforms. Nearly two months later, nothing has been done.

gun160711Trump directed that “[w]ithin 30 days of the date of this order, the Attorney General shall examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the 2nd Amendment rights of our citizens, and present a proposed plan of action to the President, through the Domestic Policy Advisor, to protect the Second Amendment rights of all Americans.”

The 30-day due date for that report would have been March 9th, but that day came and went without any movement from Bondi or the White House. When this omission got some attention, the Department of Justice told ABC News that the deadline was extended to March 16. That date passed, too, with no report. Since then, according to The Reload, DOJ has not produced the report or provided any updates as to when it will be released.

gibsongun250411However, the New York Times reported a week ago that the DOJ was about to restore gun rights to actor Mel Gibson and 9 other people. The Times said, “The decision, which also applies to nine others, was approved by Attorney General Pam Bondi, according to the people, who spoke on the condition of anonymity for fear of retaliation. The specifics are expected to be published in The Federal Register…”

Attorney General, Bondi v. Range, Case No. 24A881 (March 12, 2025)

White House, Executive Order – Protecting 2nd Amendment Rights (February 7, 2025)

The Reload, Where Is the DOJ’s Second Amendment Report? (April 6, 2025)

New York Times, Mel Gibson’s Gun Rights to Be Restored by Justice Dept. (April 3, 2025)

– Thomas L. Root

Another Incremental Victory for Felon-In-Possession – Update for March 31, 2025

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5TH CIRCUIT UPHOLDS FELON-IN-POSSESSION CONSTITUTIONALITY AS APPLIED TO DEFENDANT WITH VIOLENT PAST

The 5th Circuit last week upheld the constitutionality of 18 USC § 921(g)(1)’s felon-in-possession statute as applied to a defendant with a prior aggravated battery conviction.

Comparing the battery offense to Colonial era “armed and affray” laws, the Circuit ruled that the 2nd Amendment permits disarming people like the defendant, Jeremy Schnur.

violent160620The 5th said Jeremy’s “violent aggravated battery conviction is analogous to, and arguably more dangerous than, the ‘prototypical affray [which] involved fighting in public,’ the precursor to the ‘going armed’ laws punishable by arms forfeiture… These affray and going armed laws were intended to “mitigate demonstrated threats of physical violence similar to that displayed by Schnur when he perpetrated the aggravated battery offense [and] supports a tradition of disarming individuals like Schnur pursuant to § 922(g)(1), whose underlying conviction stemmed from the threat and commission of violence.”

The 5th’s approach continues to suggest that those with nonviolent felonies in their background cannot be held subject to the felon-in-possession statute consistent with the 2nd Amendment. This approach has been adopted by the 3rd Circuit in Range v. Atty General and suggested by the 6th Circuit in United States v. Williams. The same question is currently on en banc review in the 9th Circuit’s United States v. Duarte.

United States v. Schnur, Case No. 23-60621, 2025 U.S. App. LEXIS 7030 (5th Cir. March 26, 2025)

– Thomas L. Root

Trump Executive Order Hints At Felon-In-Possession About Face – Update for February 10, 2025

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PRESIDENT (AND FELON) TRUMP MAY CARE ABOUT § 922(g)(1)

OK, President Trump is a convicted felon. But millions of Americans know how easy it is to end up with that label.

Because Trump is now a guy surrounded by men and women with guns but not himself allowed to touch one due to 18 USC § 922(g)(1) – the felon-in-possession statute – I have been speculating for a few months about whether his personal stake in being able to again pack his personalized “Trump .45” Glock would cause him to do something about the issue of F-I-P constitutionality.

Trumpgun250113The 3d Circuit has underscored its view that § 922(g)(1) can be unconstitutional as applied to a nonviolent felon (Range v. Attorney General) and the 6th Circuit has hinted that it feels the same (United States v. Williams). The 9th Circuit said as much in United States v. Duarte, but that holding is on en banc review and probably won’t survive. Some other circuits have gone the other way.

After New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, there’s been little doubt that the “as applied” 2nd Amendment question that swirling around the F-I-P statute will reach the Supreme Court sooner rather than later. Likewise, the Dept of Justice’s intractable opposition to any loosening of gun restrictions has been a feature of every court challenge of § 922(g), not just F-I-P but also drug user in possession, person-under-indictment in possession and domestic abuser-in-possession.

trumpglock45250210Last Friday, Trump issued an executive order that strongly hints that the DOJ will soon be changing its views. The EO directed Pam Bondi, the new Attorney General, to “examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the 2nd Amendment rights of our citizens and present a proposed plan of action to the President… to protect the 2nd Amendment rights of all Americans.” The EO specifically orders her to review “[t]he positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their 2nd Amendment rights.”

This does not mean that the DOJ will drop its opposition to any or all of the varied “prohibited person in possession” issue raised by § 922(g), even whether F-I-P is constitutional as applied to a nonviolent defendant whose convictions are a quarter century old like Bryan Range. But it is a clear signal that the next SCOTUS § 922(g) case may feature a much kinder, gentler DOJ that we’ve seen so far.

White House, Executive Order: Protecting Second Amendment Rights (February 7, 2024)

Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024)

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

United States v. Duarte, 108 F.4th 786 (9th Cir. 2024)

– Thomas L. Root

2nd Amendment May Be Gunning for Felon-In-Possession – Update for January 13, 2025

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IS SCOTUS TEEING UP § 922(g)(1)?

What would you call someone who is prohibited from possessing a gun but is surrounded by a heavily armed detail?

For now, you’d be right to say it’s a federal inmate on a U.S. Marshal Service prisoner transport. But after next week, you’d be equally correct to say, “President Trump.”

Trumpgun250113

After his January 10 New York sentencing, Trump has something in common with the approximate 10 million Americans prohibited from possessing guns by 18 USC § 922(g)(1), the so-called felon-in-possession statute. Although convicted of 34 of the most anodyne felonies imaginable – paying off a porn star to keep an embarrassing story quiet during his presidential campaign and then hiding the payment as a “legal fee” – Trump is forever prevented from having a gun or ammo by the F-I-P statute, no different from a murderer or drug dealer or tax evader or food stamp fraudster.

This is important because the issue of whether § 922(g)(1) can ban everyone ever convicted of a felony from possessing guns consistent with the 2nd Amendment – a question that is increasingly splitting the federal circuits – may be on the cusp of being accepted for Supreme Court review.

F-I-P “probably does more to combat gun violence than any other federal law,” Justice Samuel Alito proclaimed in his 2019 Rehaif v. United States dissent. “It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence and illegal aliens.”

gunfreezone170330Justice Alito’s soaring if evidence-free endorsement of § 922(g) came several years before the Supreme Court’s 2022 New York State Rifle & Pistol Assn. v. Bruen and last June’s United States v. Rahimi decisions suggested that whatever the efficacy of § 922(g), its constitutionality was dubious.

After Rehaif, SCOTUS remanded a host of pending § 922(g) petitions for review for application of its standards. Now, many of those cases – and several fresh ones – are coming back to the Supreme Court. In one of those cases, United States v. Daniels, the 5th Circuit ruled in 2023 that § 922(g)(3) – that prohibited drug users from possessing guns – violated the 2nd Amendment. The government sought SCOTUS review, and the high court remanded the court for reconsideration in light of Rahimi. Last week, the 5th Circuit upheld its earlier decision that Mr. Daniels, although using pot about every other day, could not be prevented from owning a gun under the 2nd Amendment when Bruen and Rahimi standards were applied to his situation.

Last week, The New York Times wrote about the coming battle over whether the F-I-P statute comports with the 2nd Amendment, and – if so – to what extent. The Times observed that Bruen and Rahimi “interpreted the 2nd Amendment in a way that puts major parts of the [F-I-P] law at risk and has left lower courts in, as one challenger put it, a ‘state of disarray.’”

Bruen and Rahimi held that if the conduct addressed by a gun law falls within the 2nd Amendment’s protection – like possession of a gun or ammo certainly does – then the law that regulates that conduct must comport with the principles underlying the 2nd Amendment.

“For example,” Rahimi explained, “if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. Even when a law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding. And when a challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass constitutional muster.”

angels170726The question is no mere angels-on-the-head-of-a-pin argument. Over 7,000 people were convicted under § 922(g)(1) in FY 2022. The last head count (taken in 2010) found more than 19 million Americans have felony convictions and are thus disqualified from possessing guns under § 922(g)(1).

Last month, the 3rd and 4th Circuits issued opinions on the constitutionality of F-I-P, with each coming out differently on the issue. An en banc decision in United States v. Duarte is pending in the 9th Circuit. Today, SCOTUS denied review to Dubois v. United States, where the defendant was convicted of F-I-P for a 10-year-old marijuana possession felony. Instead, the Supreme Court GVR-ed the case for 11th Circuit reconsideration in light of Rahimi. 

whac-a-mole922-250113Regardless of SCOTUS action in Dubois, the § 922(g)(1) issue is ripe for review. Even before any government request that may be filed asking for Supreme Court review of Range v. Attorney General, there are no fewer than 15 petitions for certiorari pending on F-I-P constitutionality. Ohio State law professor Doug Berman, writing in his Sentencing Law and Policy blog, said last week, “[T]here is a wide array of churning lower-court litigation assailing gun restrictions well beyond federal criminal prohibitions in 18 USC § 922(g), and so it is certainly possible that the Justices might take up disputes over restrictions on types of guns or other regulatory matters before addressing federal possession prohibitions again. In addition, because the incoming Trump administration could be more supportive of a more expansive view of the 2nd Amendment, the Supreme Court’s approach to § 922(g) disputes might get influence by some new advocacy coming soon from the Justice Department.”

Certainly, the fact that the new President himself is disqualified from possessing any of the nearly 5 million guns owned by the very government he will again command in a week may influence the position his Dept. of Justice takes in any Supreme Court F-I-P litigation.

New York Times, Courts in ‘State of Disarray’ on Law Disarming Felons (January 6, 2025)

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

Rehaif v. United States, 588 U.S. 225 (2019)

United States v. Rahimi, 602 U.S. 680 (2004)

United States v. Daniels, Case No. 22-60596, 2025 U.S. App. LEXIS 208 (5th Cir. January 6, 2025)

Sentencing Law and Policy, What kind of Second Amendment case will be next for SCOTUS after Bruen and Rahimi? (January 8, 2025)

– Thomas L. Root

A Good Day At The ‘Range’ – Update for December 27, 2024

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Today marks our 1700th post since our beginning in 2015.1700th-241227

RANGE REDUX

A little more than two years ago, a 3d Circuit panel of three appellate judges held that arch-criminal Bryan Range – a man whose rap sheet included traffic tickets, fishing without a license and a misdemeanor false statement 25 years ago to get food stamps for his hungry family – had no 2nd Amendment right to own a hunting rifle or buy a shotgun.

gun-sw629-241227Cooler heads prevailed. Granting en banc review, the Circuit issued a seminal decision, holding that a prior nonviolent offense qualifyingi under 18 USC § 922(g)(1) to prohibit someone from having a gun violated the 2nd Amendment.

The government sought Supreme Court review, but while the petition was pending, the Supremes handed down United States v Rahimi, a case that held that the temporary disarming of someone under a court-issued domestic protection order could be disarmed without offending the 2nd Amendment. SCOTUS remanded all of the 2nd Amendment challenges on its docket – including the Range decision – for reconsideration in light of Rahimi.

Since then, the 8th Circuit decided that Edell Jackson, a convicted drug dealer, could be disarmed under 18 USC § 922(g)(1) consistent with the 2nd Amendment. The 6th Circuit held in United States v. Williams that a felon with violent offenses in his past was properly subject to 922(g)(1) consistent with the 2nd Amendment (leaving open the question of § 922(g)(1)’s effect on people with nonviolent felonies), and – just last week – the 4th Circuit said that anyone with a felony conviction was outside the protection of the 2nd Amendment.

Now, the en banc 3rd Circuit has delivered for Bryan like Santa on Christmas Eve, holding last Monday that Bryan Range’s right to own a gun remains protected by the 2nd Amendment despite his quarter-century-old fraud offense.

Applying New York State Rifle & Pistol Association v. Bruen and Rahimi, the en banc Circuit “reject[ed] the Government’s contention that ‘felons are not among “the people” protected by the 2nd Amendment’ [and] that Bryan Range remains among ‘the people’ despite his 1995 false statement conviction. The 3d then rules that

[h]aving determined that Range is one of “the people,” we turn to the easy question: whether § 922(g)(1) regulates 2nd Amendment conduct. It does.

Against this backdrop, it’s important to remember that Range’s crime—making a false statement on an application for food stamps—did not involve a firearm, so there was no criminal instrument to forfeit. And even if there were, government confiscation of the instruments of crime (or a convicted criminal’s entire estate) differs from a status-based lifetime ban on firearm possession. The Government has not cited a single statute or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit a crime. Nor has the Government cited forfeiture cases in which the convict was prevented from regaining his possessions, including firearms (unless forfeiture preceded execution). That’s true whether the object forfeited to the government was a firearm used to hunt out of season, a car used to transport cocaine, or a mobile home used as a methamphetamine lab. And of those three, only firearms are mentioned in the Bill of Rights.

For the reasons stated, we hold that the Government has not shown that the principles underlying the Nation’s historical tradition of firearms regulation support depriving Range of his 2nd Amendment right to possess a firearm.

iloveguns221018The Circuit noted that its decision “is a narrow one. Bryan Range challenged the constitutionality of 18 USC § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).” This suggests that those with prior convictions might have to apply piecemeal for confirmation that their 2nd Amendment rights remain intact.

The 6th Circuit has implied the same, complaining that the defendant – who was arguing in appeal of a § 922(g)(1) conviction that application of the felon-in-possession statute violated the 2nd Amendment – never sought to have his 2nd Amendment rights confirmed until he was caught with a gun.

For now, Range II is a breath of fresh air. The Circuit held resoundingly that Bryan “remains one of ‘the people’ protected by the 2nd Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms. More than two decades after he was convicted of food-stamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm. The record contains no evidence that Range poses a physical danger to others. Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.”

Range creates a clear and well-defined circuit split on the constitutionality of 18 USC § 922(g)(1). This is probably not the end of the inquiry, although perhaps the Trump Dept of Justice may not share the current administration’s ardor for seeking certiorari on every 922(g)(1) case to come down the pike.

gun160711Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, noted that Bryan’s “case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime. Because this Range ruling creates a clear circuit split on the constitutionality of 18 USC § 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the US Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the 2nd Amendment in this particular ‘narrow’ case.”

Range v. AG United States, Case No. 21-2835 (3d Cir. Dec. 23, 2024) 2024 U.S. App. LEXIS 32560, at *1

Sentencing Law and Policy, En banc Third Circuit again finds federal felon-in-possesion ban unconstitutional as applied to Byran Range (December 23, 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

Watershed Moment for Felon-in-Possession and 2nd Amendment? – Update for August 27, 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.

DANGER IS MY BUSINESS

nickdanger220426The 6th Circuit handed down a rather inverted but consequential decision last Friday, holding that 18 USC § 922(g)(1) – the statute that prohibits people convicted of a felony from possessing guns or ammo – was consistent with the 2nd Amendment as applied to Erick Williams, a convicted felon with a colorful and rather high-octane rap sheet.

A quick word about “as applied.”

In constitutional law, a facial challenge is a challenge to a statute in which a plaintiff argues that the law is always unconstitutional no matter how it is employed. A law against criticizing the government would always violate the 1st Amendment, whether used against a Marxist firebrand on a soapbox or that nice 80-year-old lady next door tending her gladiolas who complains that Social Security should do better in sending her checks.

Facial challenges are generally hard to win because, despite Congress’s institutional incompetence, facially unconstitutional statutes rarely make it through the legislative process.

In an “as applied” challenge, on the other hand, a plaintiff argues that a statute is unconstitutional not in every sense but rather only when applied in limited cases. The claim in Batson v. Kentucky, where the prosecutor used peremptory challenges to exclude jurors on the basis of race, did not find that peremptory strikes to eliminate jurors from the pool were unconstitutional in all cases, but were unconstitutional when used to strike jurors because of their race.

Back to the live action: Erick, who had previously been convicted of armed robbery and other offenses but who had served his time, was caught in a traffic stop with a handgun. Convicted of being a felon In possession, he appealed on the ground that § 922(g)(1) was facially unconstitutional in the wake of NY State Rifle & Pistol Association v. Bruen.

Applying last June’s US v Rahimi decision (in which the Supreme Court ruled that § 922(g)(8), which denied guns to people subject to domestic protection orders), the Circuit ruled that § 922(g)(1) was not unconstitutional as applied to a guy whose “criminal record shows that he’s dangerous.”

danger210211“Through § 922(g)(1), Congress has decided to enact a class-wide disarmament of felons,” the Circuit wrote. “[T]hat statute is constitutional as it applies to dangerous individuals… Consider William’s criminal record. He has two felony counts of aggravated robbery. Robbery is a common-law crime against the person. What’s more, aggravated robbery is robbery… accomplished with a deadly weapon.” Indeed, Williams robbed two people at gunpoint, stealing cash, a watch, and clothing. That offense alone is sufficient to conclude that Williams, if armed, presents a danger to others or the public. But that’s not all. Williams has also been convicted of attempted murder. And he’s already been convicted of possessing a firearm as a felon. In that case, he agreed to stash a pistol that was used to murder a police officer. The government could’ve pointed to any one of those convictions to demonstrate his dangerousness. Thus, Williams may be constitutionally disarmed through a class-based statute like § 922(g)(1).”

The 6th had “little trouble concluding that Williams is a dangerous felon” and thus, that “the government may, consistent with the 2nd Amendment, punish him for possessing a firearm. And the government may enact this prohibition through a broad, class-wide ban like § 922(g)(1). His as-applied challenge therefore fails.”

The Circuit was rather expansive in its holding, however, providing a roadmap for other people with prior convictions who may nevertheless retain a constitutional right to firearms. The 6th limited its definition of who might be dangerous to those who had “committed a crime against the body of another human being… including (but not limited to) murder, rape, assault, and robbery, or… a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous.”

In Range v. Atty General, the 3rd Circuit opened the felon-in-possession door a crack. The 6th Circuit has nudged it a bit more by applying Rahimi’s dangerousness analysis to the “as applied” mix. To be sure, the 6th included some provisos.

First, it said that it did not exclude “crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements” from being dangerous, but rather deferred that for another day.

Second, it explained that district courts need not find a “categorical” match to a specific common-law crime to show that a person is dangerous. Instead, district courts “should make fact-specific dangerousness determinations after taking account of the unique circumstances of the individual, including details of his specific conviction” and should consider a defendant’s entire criminal record — not just the specific felony underlying his § 922(g)(1) prosecution.”

Finally, the Circuit was implicitly critical that Erick had not sought a declaratory judgment that § 922(g)(1) was unconstitutional as applied to him before being arrested, holding that “Williams availed himself of his constitutionally required opportunity to show that he is not dangerous – albeit after he violated the law, not before.” Whether a movant’s timing – attacking § 922(g)(1) before an arrest rather than as a defense after an arrest – will matter in the constitutional calculus (and it should not), remains to be seen.

Notguns170330Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said last Sunday, “By my read, this opinion means that any and every person within the Sixth Circuit criminal charged with illegal firearm possession under 922(g)(1) — and perhaps other federal and state gun control provisions? — can now seek dismissal of that charge by making ‘an individualized showing that he himself is not actually dangerous.’ In addition, I wonder if this Williams opinion might now provide a means for the millions of persons with non-violent felony convictions in the Sixth Circuit to seek a declaratory judgment that they are ‘not actually dangerous’ and thus have a Second Amendment right to possess (and purchase) firearms like all their fellow citizens.”

United States v. Williams, Case No. 23-6115, 2024 U.S. App. LEXIS 21375 (6th Cir. Aug. 23, 2024)

Sentencing Law and Policy, Sixth Circuit panel rules federal prohibition of felon gun possession is “constitutional on its face and as applied to dangerous people” (Aug 25, 2024)

– Thomas L. Root

Duck Hunting With Steve Duarte – Update for May 21, 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.

THE FUTURE OF GUNS

duckhunting240521I got an email last week from a Georgia friend who’s been home for about eight years from serving a 30-year on a crack conspiracy, asking whether it was true that an appeals court said he could once again own a shotgun and pursue his passion for duck hunting (a passion not shared by the ducks themselves).

I explained that what he had read about, the 9th Circuit’s United States v. Duarte decision, did not necessarily say that and–even if it had–the last word hasn’t yet been written about the 2nd Amendment and 18 USC § 922(g)(1)’s felon-in-possession statute.

The May 9th Duarte decision had a 3-judge panel split 2-1, with the majority holding that the 2nd Amendment does not necessarily exclude people formerly convicted of felonies: New York State Rifle & Pistol Assn v. Bruen’s “scattered references to ‘law-abiding’ and ‘responsible’ citizens did not implicitly decide the issue in this case., the Court said. In the 2008 District of Columbia v. Heller decision, the Supreme Court made passing reference to the “presumptive[] lawful[ness]” of felon firearm bans, but the Duarte majority said the presumption “will no longer do after Bruen,” given Bruen’s call for a historical analysis and that the “felon firearm ban[] was never an issue the Heller Court purported to resolve.”

Eugene Volokh, a constitutional law professor at UCLA, told Courthouse News Service that Duarte “is a shift in Ninth Circuit law, and it differs from the view adopted by many circuits… However, it’s similar to what the Philadelphia-based 3rd Circuit decided last year in Range v. Attorney General.“

gunknot181009Duarte leaves open the possibility that felons convicted of violent crimes could still be prohibited from owning firearms. What’s more, the government wasted no time, last week filing a Petition for Rehearing En Banc and for Expedited Order Vacating Panel Opinion that asks the 9th Circuit for en banc review of Duarte. Appellant Steve Duarte has been ordered to file an opposition by May 30th.

En banc review may be put on hold pending the Supreme Court decision in the United States v. Rahimi decision, due any time before the end of June. The Rahimi case considers the constitutionality of a law banning gun possession by people subject to domestic violence restraining orders. Volokh said, “The question in Rahimi and the question in this case aren’t identical, but they share considerable similarities.”

gun160711For now, both Range and Duarte are “as applied” cases, not holding that § 922(g)(1) is unconstitutional on its face, that is, in every circumstance, but rather only “as applied to the one’s own particular conduct.” In Range, the petitioner had been convicted 25 years before on a food-stamp misdemeanor that carried a possible 2-year sentence (and thus fell under § 922(g)(1)’s prohibition). The Duarte majority held that the defendant lacked any violent crime conviction (despite the fact that one of his priors was for fleeing and eluding, which sounds like more than a simple jaywalking to avoid a cop on the same sidewalk Steve was on).

The § 922(g)(1) tide may be turning, but no one should feel as though it’s open season on gun ownership just yet, or–more to the point–that a felon-in-possession conviction is open to a successful constitutional attack.

Reason, Volokh: Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights (May 9, 2024)

Courthouse News Service, 9th Circuit finds that convicted felons also have Second Amendment rights (May 9, 2024)

Ammoland, Court Finds Convicted Felons have Second Amendment Rights (May 15, 2024)

New York Law Review, The Dog That Didn’t Bark Is Rewriting the Second Amendment (May 5, 2024)

ABA Journal, Ban on gun possession by felons is unconstitutional as applied to some offenders, 9th Circuit rules (May 13, 2024)

– Thomas L. Root