Tag Archives: 922(g)(1)

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

Two District Courts Find Felon-in-Possession Unconstitutional – Update for November 20, 2023

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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.

RUMBLINGS OF 922(g) UNCONSTITUTIONALITY

guns200304Even while the Supreme Court ponders Rahimi – the case that questions whether prohibiting people subject to domestic protection orders from having guns – lower courts are expressing doubts about whether 18 USC § 922(g), the statute prohibiting felons from possessing firearms, remains constitutional after the Supreme Court’s 2022 New York State Rifle & Pistol Assn v. Bruen decision.

The leading decision against unconstitutionality, of course, is Range v. Atty General, a 3rd Circuit en banc decision last June. Range held that § 922(g)(1) was unconstitutional as applied to Bryan Range, who had been convicted of a welfare fraud offense 25 years ago. The government has filed for Supreme Court review in Range and asked SCOTUS to sit on the petition until it decides Rahimi next spring.

At the same time, the 8th Circuit went the other way in United States v. Jackson.

Down in the trenches, however, two federal district courts have held in the last several weeks that the felon-in-possession statute is unconstitutional.

In Chicago, Glen Prince – who the Government said had been robbing people at gunpoint on commuter trains – was arrested late one night while standing on a train platform with a gun. Ten days ago, a district court threw out his pending 18 USC § 922(g)(1) indictment – which alleged that Glen was Armed Career Criminal Act-eligible – as unconstitutional under Bruen.

The court ruled that Bruen did not hold that the Second Amendment categorically protects only law-abiding citizens, despite repeated use of such qualified language as “law-abiding citizens” in the decision. The district judge concluded instead that “the government has not met its burden to prove that felons are excluded from ‘the people’ whose firearm possession is presumptively protected by the plain text of the Second Amendment.

gun160711Because the right of a person with a prior felony conviction to possess a gun is presumptively protected by that Amendment, the court said, Bruen gives the government the authority to prohibit possession only when it can “demonstrate that the statute is part of this nation’s historical tradition of firearm regulation… Where a ‘distinctly modern’ regulation is at issue, the government must offer a historical regulation that is ‘relevantly similar’ and… must determine whether historical regulations ‘impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified’ as the burden imposed by § 922(g)(1).”

The “first federal statute disqualifying certain violent felons from firearm possession was not enacted until… 1938,” the court noted, finding “no evidence of any law categorically restricting individuals with felony convictions from possessing firearms at the time of the Founding or ratification of the Second or 14th Amendments.” The district court concluded that § 922(g)(1) “imposes a far greater burden on the right to keep and bear arms than the historical categorical exclusions from the people’s Second Amendment right. The government has not demonstrated why the modern ubiquity of gun violence, and the heightened lethality of today’s firearm technology compared to the Founding, justify a different result.”

Glen’s ACCA count was dismissed.

Meanwhile, in the Eastern District of Pennsylvania, a district court declared § 922(g) unconstitutional as applied to a man convicted of a DUI two decades ago.

Ed Williams had a prior drunk-driving conviction when he was arrested for DUI in Philadelphia 20 years ago. The prior conviction, combined with the fact that his blood alcohol concentration was three times the legal limit, made the second offense “a 1st-degree misdemeanor punishable by up to 5 years in prison.” That was enough to trigger § 922(g)(1), which prohibits guns to anyone convicted of a crime carrying a maximum sentence of over a year in prison (not just felonies).

gunb160201The district court ruled that “[p]rohibiting [Ed]’s possession of a firearm due to his DUI conviction is a violation of his Second Amendment rights as it is inconsistent with the United States’ tradition of firearms regulation. The Constitution ‘presumptively protects’ individual conduct plainly covered by the text of the Second Amendment, which includes an individual’s right to keep and bear arms for self-defense… Protected individuals presumptively include all Americans… The Supreme Court has held that an individual’s conduct may fall outside of Second Amendment protection ‘[o]nly if a firearm regulation is consistent with this Nation’s historical tradition…’”

The district court relied on the fact that the 3rd Circuit had “determined that Bryan Range, who had a qualifying conviction under Section 922(g)(1) for making a false statement to obtain food stamps and who wished to possess firearms to hunt and to defend himself, could not be denied his 2nd Amendment right to possess a firearm due to that conviction.” The judge held that “the narrow analysis in Range also applies to the Plaintiff here.”

United States v. Prince, Case No. 22-CR-240, 2023 U.S. Dist. LEXIS 196874 (N.D. Ill., November 2, 2023)

Williams v. Garland, Case No. 17-cv-2641, 2023 U.S. Dist. LEXIS 203304 (E.D.Pa., November 14, 2023)

WLS-TV, Chicago judge rules statute barring felons from having guns unconstitutional under Bruen decision (November 16, 2023)

Reason, He Lost His Gun Rights Because of a Misdemeanor DUI Conviction. That Was Unconstitutional, a Judge Says (November 15, 2023)

– Thomas L. Root

Gunfight Brewing at the SCOTUS Corral – Update for October 13, 2023

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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.

RAHIMI TEEING UP TO BE GUN POLICY DEBATE

United States v. Rahimi, the fast-track Supreme Court review of a 5th Circuit gun case, passed a filing deadline last week with no fewer than 60 separate amicus briefs on both sides of the debate.

lotsofguns231013In Rahimi, the 5th declared the 18 USC 922(g)(8) prohibition on people with domestic protection orders possessing guns to be unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen.

Dozens of the briefs argue that the Circuit was right. One such example was an amicus filing by the California Public Defenders Association:

The State of California aggressively criminalizes the possession of firearms. We have seen that this disproportionately affects people of color, particularly Black people. Since New York State Rifle & Pistol Association, Inc. v. Bruen, we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment. And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.” We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.

As to the particular statute at issue in this case, 18 USC § 922(g)(8), we acknowledge the need to protect people from domestic violence. Many of our clients are themselves victims of domestic violence. But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.

Rahimi is set for oral argument on November 7, 2023.

The Department of Justice’s sense that Rahimi may be its decisive battle on the Second Amendment was reflected in last week’s filing of a petition for writ of certiorari in Range v. Attorney General. The Solicitor General wrote:

The decision below — which held an Act of Congress unconstitutional, conflicts with decisions of other courts of appeals, and has important practical consequences— would ordinarily warrant this Court’s review. See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294, 2298 (2019) (noting that this Court’s “usual” approach is to grant review “when a lower court has invalidated a federal statute”). But the Court has already granted review in Rahimi to decide the constitutionality of 18 USC § 922(g)(8), the statute that disarms individuals who are subject to domestic-violence protective orders… The Court should therefore hold this petition for a writ of certiorari until it decides Rahimi… This case substantially overlaps with Rahimi. Both cases concern Congress’s authority to prohibit a category of individuals from possessing firearms. In each case, the government argues that the Second Amendment allows Congress to disarm individuals who are not law-abiding, responsible citizens.

2dAmendment231013This is palpable nonsense. Even if a low-grade conviction 25 years before (Range was convicted of a misdemeanor, but one carrying a maximum sentence of more than a year in prison, thus disqualifying him from having a gun under 922(g)(1)) can bar firearms possession consistent with the 2nd Amendment, Rahimi has little to do with barring someone who is not a “law-abiding, responsible citizen[]” from possessing guns or ammo. For example, in Ohio the testimony of the victim alone is enough to meet the simple “preponderance of the evidence” standard needed for a civil protection order. While a lesser standard such as this makes perfect sense where an order is intended to protect life and safety, to claim that the words on one aggrieved domestic partner establishes that someone is not a “law-abiding, responsible citizen[]” who can be stripped of 2nd Amendment rights demonstrates the weakness of the government’s “take-no-prisoners” approach to gun rights litigation.

In that vein, I note that last week the government also filed a petition for writ of certiorari in United States v. Daniels, a 5th Circuit decision from last August holding that 18 USC 922(g)(3) – which prohibits users of unlawful controlled substances from gun possession – was unconstitutional. Employing the same argument (indeed, the same language) it used in the Range petition, the government asked that Daniels be held pending the outcome of Rahimi.

United States v. Rahimi, Case No. 22-915

Amicus Brief of Alameda County Defenders Assn and California Public Defenders Assn (filed October 3, 2023)

United States v. Range, Case No. 23-374 (Petition for writ of certiorari filed October 5, 2023)

United States v. Daniels, Case No. 23-376 (Petition for writ of certiorari filed October 5, 2023)

– Thomas L. Root

Another Circuit to Enter the Post-Bruen Fray – Update for June 29, 2023

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7TH REMANDS 2ND AMENDMENT GUN POSSESSION CASE IN WAKE OF BRUEN

iloveguns221018Patrick Atkinson was convicted 25 years ago of federal mail fraud. After maintaining an otherwise clean record for a generation, he wanted a gun. But because 18 USC § 922(g)(1) bars gun possession for anyone convicted of “a crime punishable by imprisonment for a term exceeding one year,” he could not buy one. He sued seeking to have § 922(g)(1) declared unconstitutional as applied to him.

Relying on 7th Circuit precedent from prior to last summer’s New York State Rifle & Pistol Ass’n v. Bruen decision, the district court dismissed Pat’s case. He appealed.

Last week, the 7th Circuit sent it back for consideration in light of Bruen’s holding.

“Bruen announced a new framework for analyzing restrictions on the possession of firearms,” the Circuit ruled. “The new approach anchors itself exclusively in the 2nd Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively proving that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms… The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen. In these circumstances, we think the best course is to remand to allow the district court to undertake the Bruen analysis in the first instance.”

gunpermit230629Two recent decisions have considered the constitutionality of the felon-in-possession statute. On June 8, the 3rd Circuit held the statute unconstitutional in Range v. Attorney General. Six days before that, the 8th Circuit ruled the opposite way in United States v. Jackson.

Atkinson v. Garland, Case No. 22-1557, 2023 U.S. App, LEXIS 15357 (7th Cir., June 20, 2023)

– Thomas L. Root

3rd Circuit Sharply Limits § 922(g)(1) ‘Felon-In-Possession’ – Update for June 8, 2023

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A DAY AT THE ‘RANGE’

manyguns190423In a case with substantial implications for gun possession rights, the United States Court of Appeals for the 3rd Circuit ruled Tuesday that 18 USC § 922(g)(1) – the so-called felon-in-possession statute – is unconstitutional as applied to a man convicted of a nonviolent crime over 25 years ago.

The en banc decision ruled 11-4 that Bryan Range – convicted of 62 Pa. Stat. Ann. § 481(a) back in 1995 for falsely stating his family’s income to qualify for food stamps – nevertheless “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.”

Although 18 USC § 922(g)(1) is often described in shorthand as prohibiting people convicted of felonies from possessing guns, it is more nuanced than that. In fact, it prohibits people convicted of a “crime punishable by imprisonment for a term exceeding one year” from firearms and ammo possession (and some crimes are excluded in 18 USC § 921(a)(20) from the calculus).

Under Pennsylvania law, Bryan’s crime was a misdemeanor, one for which he served probation only. But it was punishable by up to five years imprisonment, regardless of what the legislature called. The maximum statutory penalty is what matters to § 922(g)(1), and that theoretical max prohibited Bryan from gun possession.

After Bryan tried and failed to buy a shotgun, he sued in federal court for a declaratory judgment that § 922(g)(1) violated his 2nd Amendment rights. The district court disagreed, and a three-judge 3rd Circuit panel upheld that denial last November. But then, a majority of current 3rd Circuit appellate judges voted last January to hear the case en banc.

gun160711Last June, the Supreme Court changed the 2nd Amendment landscape in New York State Rifle & Pistol Association v. Bruen. In that decision, SCOTUS held “that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct… Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s ‘unqualified command’.”

The 3rd ruled that the Government had failed to show that “our Republic has a longstanding history and tradition of depriving people like Range of their firearms.” Judge Thomas Hardiman (who was in the running for the Supreme Court seat now occupied by Neil Gorsuch), wrote for the majority. He noted in a footnote that “[e]ven rebels who took part in the 1787 tax uprising in Massachusetts known as Shays’ Rebellion could generally get their weapons back after three years,” and concluded that punishing Bryan Range by revoking his gun rights for an offense that did not involve violence gave lawmakers too much power “to manipulate the 2nd Amendment.” Thus, “§ 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.”

Judge Hardiman called the ruling a narrow one, but how that could be so is questionable. Dissenting Judge Cheryl Ann Krause, an Obama appointee to the 3rd Circuit, complained that while it “describes itself as limited ‘to Range’s situation,’ today’s opinion is not designated non-precedential as appropriate for a unique individual case, but has precedential status, necessarily reaching beyond the particular facts presented. It is also telling that it tracks precisely the 5th Circuit’s deeply disturbing opinion in United States v. Rahimi, which, finding no precise historical analogue, struck down as unconstitutional the ban on gun possession by domestic abusers.”

(Note: Rahimi struck down as unconstitutional the ban on gun possession by people subject to domestic violence protection orders, which can be and often are entered without hearings and without counsel. It’s a stretch – if not outright disingenuous – to call someone subject to such an order a “domestic abuser”).

Dissenting Judge Patty Shwartz complained that “[w]hile my colleagues state that their opinion is narrow, the analytical framework they have applied to reach their conclusion renders most, if not all, felon bans unconstitutional.”

gunfreezone170330The New York Times said “Judge Hardiman’s opinion directly addressed many of the core issues raised in the Supreme Court’s decision last June, in expansive language that seemed to suggest that the constitutional foundation of many gun laws was eroding.”

The Range decision created an immediate Circuit split due to last week’s 8th Circuit United States v. Jackson decision, which I wrote about a few days ago. But whether the Government seeks to rush Range to the Supreme Court like it has done with Rahimi is uncertain. Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman is not convinced the Solicitor General would find Range a good certiorari candidate:

Though the federal government would normally seek certiorari review of this kind of ruling, I wonder if the feds might seek to urge the Supreme Court to take up a different case raising the same issue. Bryan Range’s case seems particularly sympathetic, as he was only convicted nearly three decades ago of making a false statement to obtain food stamps in violation of Pennsylvania law. But, whatever the vehicle, the constitutionality of Section 922(g)(1) is clearly one (of a number of) post-Bruen 2nd Amendment issues the Supreme Court is going to have to confront.

Range v. AG United States, Case No. 21-2835, 2023 U.S. App. LEXIS 13972 (3d Cir. June 6, 2023)

New York Times, Man Convicted of Nonviolent Crime Can Own Gun, U.S. Court Rules (June 6, 2023)

Associated Press, US appeals court says people convicted of nonviolent offenses shouldn’t face lifetime gun ban (June 6, 2023)

United States v. Jackson, Case No 22-2870, 2023 U.S.App. LEXIS 13635 (8th Cir. June 2, 2023)

Sentencing Law and Policy, En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender (June 6, 2023)

– Thomas L. Root

8th Circuit Writes History on Constitutionality of 922(g) – Update for June 5, 2023

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HISTORY LESSON

gunb160201Since the Supreme Court’s New York State Rifle & Pistol Ass’n, Inc. v. Bruen decision almost a year ago, the constitutionality of just about every federal limitation on gun possession (short of machine guns and howitzers) has been thrown into question. The most important limitation to most of this site’s readers is 18 USC § 922(g)(1), the messy statute prohibiting some convicted felons (but not all of them, see 18 USC § 921(a)(20) for the confusing details) from possessing guns or ammo.

Courts have ruled that prohibiting the users of controlled substances from possessing guns is unconstitutional, something that Hunter Biden’s lawyers are very interested in. One U.S. District Court has held that denying gun possession to someone under indictment is unconstitutional. And the 5th Circuit has held that denying a gun to someone subject to a domestic protection order is unconstitutional.

The most-watched case currently is the 3rd Circuit’s Range v. Attorney General. After a three-judge panel summarily said that § 922(g)(1)’s limitation preventing a guy convicted of a minor fraud three decades ago from having a gun was constitutional, the Circuit last January withdrew the decision and sent the case to an en banc reconsideration. That decision has not yet been handed down.

Last week, the 8th Circuit jumped into the fray, rejecting a defendant’s claim that “he had a constitutional right under the 2nd Amendment to possess a firearm as a convicted felon.”

bersa230605Defendant Edell Jackson was caught at a scene where shots had been fired with a cheap handgun in his pocket. He had two prior felony drug convictions. After a trial, he was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1). An appeal, he argued that § 922(g)(1) is unconstitutional as applied to him because his drug offenses were nonviolent and did not show that he is more dangerous than the typical law-abiding citizen.

Last week, the 8th Circuit held that § 922(g)(1) was “not unconstitutional as applied to Jackson based on his particular felony convictions.” The 8th noted that Supreme Court gun decisions, including Bruen, recognized that an individual right to keep and bear arms should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” but rather is “subject to certain reasonable, well-defined restrictions.” Those assurances, the Circuit held, along with the history that supports limitations on gun possession by felons means there is “no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).”

The Court marched through history, beginning with pre-colonial England and ending with the 1968 Gun Control Act, to argue that the right to bear arms was subject to restrictions, including “prohibitions on possession by certain groups of people.” The 8th noted that the now-withdrawn Range panel decision concluded that legislatures may disarm citizens who are not “law-abiding” (those unwilling to obey the laws “whether or not they had demonstrated a propensity for violence”). Edell’s argument was more refined: he contended that the constitution limited the laws to prohibiting gun possession “by those who are deemed more dangerous than a typical law-abiding citizen”).

The 8th held that by either § 922(g)(1) “is consistent with the Nation’s historical tradition of firearm regulation” and therefore constitutional:

We conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” the 8th ruled. “Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.

This Jackson panel decision – a ruling by three judges in the notoriously conservative Circuit – will hardly be as definitive as the Range decision expected from an en banc panel consisting of up to 25 active appellate judges, and it is certainly subject to attack for what I think is superficial historical analysis. But as a portent of how far Bruen may go in invalidating § 922(g)(1), Jackson is concerning.

There’s little doubt that the constitutionality of most if not all of § 922(g) will end up in front of the Supreme Court, but don’t look for that before 2025 at the earliest. All of this matters because it could invalidate thousands of § 922(g) convictions for people now serving sentences.

gun160718Meanwhile, remember United States v. Rahimi, the 5th Circuit decision that § 922(g)(8) – that prohibits people with domestic violence protection orders from gun possession – is unconstitutional? I reported that the government wasted no time seeking Supreme Court review. On May 30, defendant Rahimi filed his opposition to the government’s petition (after seven parties ranging from a New York county district attorneys’ group to California Governor Gavin Newsom filed petitions supporting grant of certiorari).

The very next day, the government asked SCOTUS to waive the usual two-week delay before considering the petition. With the delay, it is likely the Court will break for the summer without considering the petition until the end of September. The government is in a hurry to get this case heard.

United States v. Jackson, Case No 22-2870, 2023 U.S.App. LEXIS 13635 (8th Cir. June 2, 2023)

Range v. Attorney General, 53 F.4th 262 (3d Cir. 2022) (per curiam), rehearing en banc granted, 56 F.4th 992 (3d Cir. 2023)

Sentencing Law and Policy, 8th Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition (June 2, 2023)

United States v. Rahimi, Case No 21-11001, 61 F.4th 443 (5th Cir. 2023)

Rahimi v. United States, Case No 22-915 (Petition for certiorari filed Mar 17, 2023)

CNN, Texas man urges Supreme Court to stay out of major Second Amendment case (May 31, 2023)

– Thomas L. Root

Courts Chipping Away at Gun Statute in Wake of Bruen – Update for October 18, 2022

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ANOTHER WEEK, ANOTHER ATTACK ON 18 USC § 922

iloveguns221018I reported a few weeks ago on a Western District of Texas ruling holding that the ban on people under indictment having guns or ammo (18 USC § 922(n)) was unconstitutional in the wake of last June’s Supreme Court decision in New York State Rifle & Pistol Ass’n v Bruen. Last week, a Southern District of West Virginia district court joined the fracas, holding that 18 USC 922(k) – which prohibits possession of guns with obliterated serial numbers – “implicate conduct that is protected by the Second Amendment… [making] the statute is presumptively unconstitutional” under Bruen.

The West Virginia defendant was caught with a gun that had serial numbers filed off. He was charged with being a felon-in-possession under 18 USC § 922(g)(1) and with violating § 922(k). The district court held that the felon-in-possession statute was constitutional, but that § 922(k) was not. The government could not show that the obliterated serial number statute was “consistent with the Nation’s historical tradition of firearm regulation.”

gunserialfiled221018Firearms were not required to carry serial numbers until the Gun Control Act of 1968. The “societal problem[s]” addressed by § 922(k) appear to be crime, the Court wrote, “including crime involving stolen firearms, and assisting law enforcement in solving crime. It is difficult to imagine that this societal problem did not exist at the founding. While firearms then were not the same as firearms today, there certainly were gun crimes that might have been more easily investigated if firearms had to be identifiable by a serial number or other mark. The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791.”manyguns190423

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said that “the rejection of Bruen-based attacks on felon-in-possession prohibition is already become quite common. As the Price opinion notes “Relying on the same [‘law-abiding’] dicta in the wake of Bruen, at least nine federal district courts have rejected constitutional challenges to Section 922(g)(1)… [But] based on my first quick read of this opinion, I am not sure I am wholly convinced by the analysis driving either part of the ruling.”

United States v. Price, Case No 2:22-cr-00097, 2022 U.S.Dist. LEXIS 186571 (S.D.W.Va., Oct. 12, 2022)

Sentencing Law and Policy, Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen (October 13, 2022)

– Thomas L. Root