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What Does Rahimi Mean for 922(g)(1) Constitutionality? – Update For June 24, 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.

WHITHER RAHIMI?

No one who paid any attention to Zackey Rahimi’s case doubted for a moment that the Supreme Court would find a way to uphold the constitutionality of 18 USC § 922(g)(8), the subsection of the felon-in-possession statute that prohibited people subject to domestic protection orders (DPO) from possessing guns.

Old Zackey is 87 miles of bad track, a bad boy’s bad boy. He was hit with a DPO for bouncing his girlfriend’s face off his car’s dashboard. After the DPO was issued, Zackey kept harassing her anyway, For good measure, he also shot at another car in an unrelated road rage incident and opened fire at a What-a-Burger when his friend’s credit card was declined. Zack is not a sympathetic defendant.

whataburger230703On Friday, the Supreme Court upheld § 922(g)(8) (at least as it had been applied to Zack), concluding that the nation’s “tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.”

The 8-1 majority (Justice Thomas dissenting) observed that “some courts have misunderstood the methodology of our recent Second Amendment cases,” meaning New York State Rifle & Pistol Ass’n v. Bruen. The Court cautioned against taking too rigid a view of the historical tradition of gun regulation that Bruen requires to be found in order to hold that a firearm statute is consistent with the Second Amendment. Instead, courts should look at whether the modern law being challenged is “relevantly similar” to historical regulations “in both why and how it burdens the Second Amendment right. Section 922(g)(8) restricts gun use to check demonstrated threats of physical violence, just as the [colonial-era] surety and going armed laws do. Unlike the regulation struck down in Bruen, Section 922(g)(8) does not broadly restrict arms use by the public generally.”

SCOTUS held that courts should focus on the purpose of the regulation and the burden that it places on the Second Amendment right to bear arms. “For example,” Chief Justice Roberts wrote, “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.”

Zack challenged 922(g)(8)’s facial constitutionality – that is, he argued that the law is always unconstitutional – rather than arguing it was unconstitutional “as applied” to Zack’s situation. That probably was the better of a bad choice, because an “as applied” challenge would have focused on Zack, whose personal history was terrible. The Court, ruling that 922(g)(8) was not facially unconstitutional, had no problem concluding that “Section 922(g)(8) is constitutional as applied to the facts of Rahimi’s own case.”

rahimishirt240624The Rahimi majority opinion (before the five concurring opinions and one dissent), ends with before now, “this Court did not undertake an exhaustive historical analysis… of the full scope of the Second Amendment. Nor do we do so today. Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” (Emphasis added by me).

Ohio State law professor Doug Berman, writing in his Sentencing Policy and Law blog, observed that the closing ‘only this’ statement “leads me to think that litigation over the Second Amendment is not going to get much easier for lower courts after this ruling.”

The Washington Post said, “The decision was limited in scope, leaving for another day more difficult questions about the viability of other gun-control measures, such as… restrictions on gun possession by nonviolent offenders.” USA Today said the decision doesn’t foreshadow how Rahimi’s more flexible approach in applying history “will be applied to other restrictions such as prohibiting non-violent felons from having guns, according to Joseph Blocher, co-director of the Center for Firearms Law at Duke University School of Law.”

irresponsible240624Rahimi leaves us with almost as many questions about the constitutionality of § 922(g)(1) — the actual felon-in-possession subsection — as we had before last Friday’s decision. There are few hints in the opinion, although SCOTUS did unanimously reject the government’s argument that Zack could be deprived of his right to have a gun because he is not a “responsible” citizen.

Arguments that convicted felons are not “responsible” citizens have been government mainstays in contending that § 922(g)(1) is consistent with Bruen. “‘Responsible’,” Roberts wrote, “is a vague term. It is unclear what such a rule would entail, and there is no support for such a rule in the Supreme Court’s Second Amendment cases.”

UCLA law professor Eugene Volokh wrote in Reason that

The majority repeated Heller’s statement that “prohibitions… on the possession of firearms by ‘felons and the mentally ill’ are ‘presumptively lawful’… This suggests that the Court remains generally open to those restrictions, even though it turns out such restrictions actually lack a long historical pedigree.

At the same time, perhaps there is some room after Rahimi for this “presumpti[on]” to be rebutted with regard to people convicted of felonies that don’t suggest a “credible threat to the physical safety of others,” especially if those felonies are part of the well-post-[18th century] increase in the number of nonviolent crimes that are classified as felonies. A few courts have so concluded (to oversimplify slightly); US v Range… is one example. I expect that the Court will send Range back to the 3rd Circuit for further consideration in light of Rahimi; we’ll see what the 3rd Circuit judges say on remand.

violent160620A commentator on the Sentencing Law and Policy site suggested that “in 922(g)(1) cases the court is going to have to draw a line between white-collar offenders who present no danger and felons convicted of assault and felons convicted of drug trafficking (an offense that, in a particular case may not involve violence, but presents an enormous risk of gun violence).”

For now, look to Range and other similar cases to be remanded and for the 9th Circuit to rehear Duarte (for which a petition for rehearing is now pending).

United States v. Rahimi, Case No 22-915, 2024 U.S. LEXIS 2714 (June 21, 2024)

SCOTUSBlog, Supreme Court upholds bar on guns under domestic-violence restraining orders (June 21, 2024)

Washington Post, Supreme Court upholds gun ban for domestic violence restraining orders (June 21, 2024)

Sentencing Law and Policy, Supreme Court, by an 8-1 vote, rejects Second Amendment challenge to § 922(g)(8) (June 21, 2024)

Reason, Some Takeaways from Today’s Rahimi Second Amendment Opinions (June 21, 2024)

USA Today, Supreme Court upholds law banning domestic abusers from owning guns (June 21, 2024)

United States v. Duarte, 101 F.4th 657 (9th Cir, 2024)

– 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

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

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

Lurching Toward A Dangerousness Standard for Bruen – Update for January 25, 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.

BRUEN CONTINUES TO EXPAND GUN RIGHTS

aliengun240124For the first time, a West Texas federal judge last month ruled that 18 USC § 922(g)(5)(A) – which prohibits aliens in the country unlawfully from possessing guns or ammo – violates the 2nd Amendment in the wake of the Supreme Court’s 2022 New York State Rifle & Pistol Ass’n v. Bruen decision. The West Texas decision, which the government has appealed to the 5th Circuit, is noteworthy, as is the judge’s lament at the outset of her opinion:

The Court pauses to join the choir of lower courts urging the Supreme Court to resolve the many unanswered questions left in Bruen’s wake… In the estimate of one legal scholar who reviewed more than 300 decisions applying Bruen, “lower courts have received Bruen’s message to supercharge the 2nd Amendment, but they have not yet located its Rosetta Stone. Their collective decisions in the months since the ruling have been scattered, unpredictable, and often internally inconsistent…” Against this backdrop of uncertainty, the Court “applie[s] Bruen as well as possible in evaluating the constitutionality of” the gun laws that Sing-Ledezma is charged with violating.

Citing Bruen, the judge deemed the law prohibiting people here illegally from possessing a gun “facially unconstitutional” and “an outlier that our ancestors would never have accepted.”

Last week, the 3rd Circuit joined in the “supercharging,” ruling that a Pennsylvania law that bans 18-to-20-year-olds from carrying guns outside their homes during a state of emergency violates the 2nd Amendment.kidgun240125 The 3rd ruled that 18-to-20-year-olds, like other subsets of the American public, are “presumptively among ‘the people’ to whom 2nd Amendment rights extend…. The Commissioner cannot point us to a single founding-era statute imposing restrictions on the freedom of 18-to-20-year-olds to carry guns… At the time of the 2nd Amendment’s passage, or shortly thereafter, the minimum age for militia service in every state became eighteen… We understand that a reasonable debate can be had over allowing young adults to be armed, but the issue before us is a narrow one. Our question is whether the Commissioner has borne his burden of proving that evidence of founding-era regulations supports Pennsylvania’s restriction on 18-to 20-year-olds’ 2nd Amendment rights, and the answer to that is no.”

The ”Rosetta Stone” that the Western District of Texas court seeks – at least for people serving sentences for being felons-in-possession under 18 USC 922(g)(1) – may come in United States v. Rahimi, the 5th Circuit case now awaiting a decision from the Supreme Court. The 3rd Circuit’s Range v. Attorney General en banc ruling – that held 18 USC § 922(g)(1), as applied to a nonviolent ex-felon, violated the 2nd Amendment – is on hold at the Supreme Court until Rahimi is decided.

In a thoughtful law review note to be published in the next few weeks, Jamie McWilliam argues that

in the context of felon disarmament, the primary group of laws that the government has put forward involve disarming classes that the government deemed dangerous… [embodying] a broad theme of dangerousness… [T]o determine the scope of the dangerousness standard, courts should look to the principles embodied by the 2nd Amendment itself—in particular, defense against immediate personal violence. Ultimately, this essay suggests that only those who have actually created the kind of danger that the amendment was meant to protect against—i.e., who have perpetrated physical violence—should be disarmed. This standard may defend against potentially prejudicial discretion, while simultaneously upholding 2nd Amendment rights and protecting our community.

nickdanger220426Many expect the Supreme Court to adopt such a dangerous exception to Bruen, an adoption that should advance the argument that many felon-in-possession convictions – where the dangerousness of the defendant is nonexistent – violate the 2nd Amendment.

United States v. Sing-Ledezma, Case No, EP-23-CR-823, 2023 U.S. Dist. LEXIS 223028 (W.D. Tex, December 10, 2023)

Law360, For Immigrants, Gun Rights Debate Goes Beyond Firearms (January 19, 2024)

Lara v. Commissioner, PA State Police, Case No. 21-1832, 2024 U.S. App. LEXIS 1159 (3d Cir., January 18, 2024)

McWilliam, Jamie, Refining the Dangerousness Standard in Felon Disarmament (December 4, 2023). 108 Minn. L. Rev. Headnotes (publication forthcoming ,2024)

– Thomas L. Root

Straight Shooting on Felon-In-Possession – Update for January 9, 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.

HOW ABOUT THOSE “NEW LAWS” ON FELON-IN-POSSESSION?

I had yet another email last week – and there have been a lot of them – asking for information about any “new laws” on 18 USC § 922(g)(1) felon-in-possession.

We need to get some things straight.

dunce240109Remember those high school government classes you skipped? The teacher explained that a new “law” has to be passed by Congress and signed by the president, in this case by the notoriously anti-gun President Biden. When will that happen?

We are now into an election year in which Americans will elect one new president, 435 new members of the House and 33 new senators. Democrat voters, by and large, don’t like guns and hate the 2nd Amendment. Republican voters, by and large, love the 2nd Amendment but don’t think convicted felons should be allowed to do or have anything. Most people (77% of Americans and 92% of Republicans) think the crime rate is rising when, in fact, violent crime dropped 8% last year over 2022, the murder rate has plummeted, and the property crime rate fell 6.3% to what would be its lowest level since 1961.

Less than two years ago, Congress passed the Bipartisan Safer Communities Act as a response to mass shootings at a Buffalo supermarket and a Uvalde, Texas, school. The bill – passed the House 55-45% but was approved in the Senate by a 2-1 margin – tightened background checks, toughened straw-purchaser laws, and increased the maximum for a simple, non-Armed Career Criminal Act felon-in-possession from 10 to 15 years.

So you tell me: who in Congress would vote to walk back felon-in-possession laws so soon after toughening them? Who in Congress would want to face attacks during a reelection campaign that he or she made it easier for criminals to get guns?

If you answered “no one,” you’re pretty close.

Federal law prohibiting anyone with a felony conviction from ever possessing a gun or ammo has only been around since 1961. But among politicians, it is untouchable. Every change to 18 USC § 922(g) in the last 63 years has only increased the classes of people prohibited from having guns or increased the penalties for violating the statute.

gun160711There is action on felon-in-possession, but it’s taking place across the street from the Senate and House chambers at the Supreme Court. Back in June 2022, the Supreme Court ruled in New York State Rifle & Pistol Assn v. Bruen that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. Only if a statute limiting firearm possession 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’.”

Bruen has led to a cascade of 2nd Amendment attacks on 18 USC § 922(g). Most notably, the 3rd Circuit ruled in Range v. Attorney General, an en banc decision last June, that § 922(g)(1) felon-in-possession is unconstitutional as it applies to people convicted of nonviolent felonies. Range came only a week after the 8th Circuit ruled in United States v. Jackson that the § 922(g)(1) felon-in-possession ban remained a lawful limitation on gun possession even after Bruen.

whataburger230703Meanwhile, the government convinced the Supreme Court to take up United States v. Rahimi, a case in which the 5th Circuit ruled that § 922(g)(8) – which prohibits someone subject to a domestic protection order from possessing a gun – was unconstitutional. Oral arguments in Rahimi last fall did not go all that well for the defendant, chiefly because  Zackey Rahimi is a bad actor who threatened to kill his girlfriend, opened fire on a motorist in a road rage incident, and tried to shoot up a What-a-Burger because his friend’s credit card was declined.

Meanwhile, the Range petition for cert, also filed by the government, appears to be on hold pending the Rahimi decision.

Now add to that a petition filed on December 21 by Melynda Vincent, who passed a $492.00 counterfeit check while battling a drug addiction 15 years ago. Melynda sued the government in 2020 for the right to own a gun. The 10th Circuit ruled last fall that Bruen did not change the fact that felon-in-possession was constitutional. The government plans to oppose Melynda’s petition, but the issue – whether a sympathetic nonviolent offender whose crime was committed years ago can constitutionally be denied the right to possess a gun – is much like Bryan Range’s case.

vincent240109Melynda is as ideal a petitioner as Zack Rahimi is a poster child for gun control. Her federal judge gave her probation 15 years ago and challenged her to turn her life around. Melynda did that and more. She earned a bachelor’s degree in behavioral science followed by a master’s degree in social work and a second master’s degree in public administration. She is the founder and executive director of the Utah Harm Reduction Coalition, a nonprofit that works to develop science-driven drug and criminal justice reform policies. She also started the first legal syringe exchange service in the state.

It seems probable that the Supreme Court will try to limit Bruen where public safety is concerned. This makes it likely that the court may limit § 922(g)’s limitations to cases where the defendant’s dangerousness is at issue, which would benefit the Bryan Ranges and Melynda Vincents of the country, as well as any number of federal defendants whose § 922(g)(1) convictions have nothing to do with their perceived risk to public safety.

Vincent v. Garland, 80 F.4th 1197 (10th Cir, 2023)

Vincent v. Garland, Case No. 23-683 (petition for cert filed Dec 21, 2023)

Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc)

Garland v. Range, Case No. 23-374 (dist for conference November 17, 2023)

NBC, Most people think the U.S. crime rate is rising. They’re wrong. (December 16, 2023)

Deseret News, She lost her gun rights for passing a bad check. Now she wants the Supreme Court to restore them (December 29, 2023)

– Thomas L. Root

Rahimi May Drive Supreme Court to Review Range – Update for November 27, 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.

SPECULATION INCREASES THAT SCOTUS WILL REVIEW § 922(g)(1) CONSTITUTIONALITY

danger210211When the Supreme Court heard arguments earlier this month in United States v. Rahimi on whether 18 USC § 922(g)(8) – which prohibits people under a domestic protection order from having guns – violates the 2nd Amendment, Justice Amy Barrett asked the government, “But you’re trying to save, like, the Range issue. So you’re not applying dangerousness to the crimes?”

The New York Times last week expanded on what it called Justice Barrett’s “cryptic” reference for those not following the gun debate: “She was… referring to… Bryan Range, who has challenged a federal law prohibiting people who have been convicted of felonies from owning guns.” Barrett’s reference provides the clearest indication yet that the Court may review Range v. Atty Gen’l (now known as Garland v. Range), the 3rd Circuit en banc decision holding that the felon-in-possession law is unconstitutional as applied to a guy like Bryan Range, who had an old nonviolent felony conviction on his record.

fishinglicense231127Bryan is a far more sympathetic figure than domestic violence defendant Zackey Rahimi, accused of threatening women and being involved in 5 shootings in a 2-month stretch. Bryan’s criminal history, on the other hand, consisted of doing 3 years of probation 25 years ago for making a false statement to get food stamps, with only minor traffic violations and a ticket for fishing without a license since then.

A week ago, the Supreme Court considered whether to grant review in Range – which both the government and Bryan Range’s lawyers want – but the Court has not announced any action on the petition. The government asked the Court to wait on Range until it decides Rahimi. Bryan’s lawyers argued that there was no reason for delay and that the Court should consider both cases in its current term, which ends in June.

But would the Supreme Court grant a second 2nd Amendment case this term? Some believe it would. Writing in the Volokh Conspiracy, a blog by constitutional law professors, Josh Blackmon (South Texas College of Law) said, “Even if Rahimi loses by a lopsided margin, Range could pull out a victory by the same margin from [New York State Rifle & Pistol Ass’n v. Bruen]. Indeed, the Court may be able to split those cases in a way so as not to water down Bruen. The Court could even vacate-and-remand Rahimi in light of Range.”

Last week, Blackmon argued that “in Rahimi, presumably, a majority of Justices will want to write that the 2nd Amendment rights must be taken away from people merely accused of being dangerous, even if they are not convicted, let alone indicted. I think that opinion will be harder to write than one may think.”

manyguns190423In other news, the 4th Circuit ruled last week that Maryland’s handgun licensing law, which featured a 30-day waiting period, a requirement that the applicant submit fingerprints, and completion of a 4-hour handgun course, was unconstitutional. The Circuit held that Maryland has not met its burden to show a ‘historical analogue’ demonstrating that its law falls within a historically recognized exception to the right to keep and bear arms… and it has offered no other historical evidence to justify its law.”

It appears that pressure on the Supreme Court to rule on § 922(g)(1) felon-in-possession’s constitutionality before next June is increasing because of the complexity of the issues raised in Rahimi.

New York Times, The Supreme Court’s Search for a More Attractive Gun Rights Case (November 20, 2023)

Reason, Rahimi, Meenie, Miney, Mo (November 8, 2023)

New York State Rifle & Pistol Assn. v Bruen, 597 US —, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022)

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

Garland v. Range, Case No 23-374 (Supreme Ct., petition for cert pending)

Md Shall Issue, Inc. v. Moore, Case Nos. 21-2017, 21-2053, 2023 U.S. App. LEXIS 30955 (4th Cir. Nov 21, 2023

– 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

Supreme Court May Walk Back Bruen, But Constitutionality of 922(g)(1) Still Up In The Air – Update for November 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.

HARD CASES MAKE BAD LAW

The Supreme Court appears poised to refine the New York State Rifle & Pistol Association v. Bruen Second Amendment test for the constitutionality of gun laws, adding a “dangerousness” element that – surprisingly enough – may help a lot of people convicted of felon-in-possession crimes.

SCOTUS heard argument last week in United States v. Rahimi, the case that challenged whether subsection (8) of 18 USC 922(g) – that bans people subject to domestic protection orders from possessing guns – is constitutional under the Second Amendment.

Mr. Rahimi fired off a few rounds at a fast-food joint when his friend's credit card was declined.
Mr. Rahimi fired off a few rounds at a fast-food joint when his friend’s credit card was declined.

Defendant Zackey Rahimi was a bad actor. While under a domestic protection order for stalking an ex-girlfriend, he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even loosing off five rounds into the air when a credit card was declined at a Whataburger. In short, he was the government’s dream defendant for its position that Uncle Sam has the right to keep some people away from guns.

And the government needed a dream defendant. The Supreme Court’s 2022 Bruen decision adopted a new standard, specifically that when the Second Amendment covers one’s conduct (such as possessing a firearm), the government can limit that conduct only by showing “that the regulation is consistent with this Nation’s historical tradition of firearm regulation. 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 Second Amendment’s “unqualified command.” Bruen thus superseded the Court’s long-standing practice of allowing the government to weigh its interest in public safety against the possibility of imposing a limitation on Second Amendment rights.

Last week’s argument suggests the Court may write some “public safety” back into the Bruen standard. The government argued that the “destabilizing consequences” of the 5th Circuit’s Rahimi ruling require the Court to uphold 18 USC § 922(g)(8) based on the general tradition of Congress taking guns from people who are not responsible, law-abiding citizens – “for example, people who had been loyal to the British government during the Revolutionary War, felons, and drug addicts,” as Amy Howe put it in SCOTUSBlog.

lawabiding231113But the justices puzzled over what “responsible” or “law-abiding” citizen meant exactly. “Responsibility,” Chief Justice John Roberts told the government, is “a very broad concept.” Justice Amy Coney Barrett agreed that domestic violence is dangerous. But in more marginal cases, she asked, how does the government show that other kinds of behavior are dangerous?

The government argued that “responsibility” is “intrinsically tied to the danger you would present if you have access to firearms.” The government told the Court that it can disarm “dangerous individuals” without violating the  Second Amendment.

Roberts clearly thought Zack had no business possessing a gun: “You don’t have any doubt that your client’s a dangerous person, do you?” he asked Zack’s counsel. Justice Samuel Alito wondered whether Rahimi’s position was that “except for someone who has been convicted of a felony, a person may not be prohibited from possessing a firearm in his home?” Justice Elena Kagan interpreted Rahimi’s position as being that the government had to show a historical regulation “essentially target[ed] the same kind of conduct as the regulation under review” to be constitutional.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said,

There seems to be a majority of Justices (and perhaps even all the Justices) who are prepared to rework the Bruen originalist approach to the Second Amendment to uphold the federal criminal firearm prohibition in Rahimi. But I… was especially struck by the claim by Rahimi’s lawyer that there were no complete criminal bans on the possession of guns by certain people until 1968. If originalism as a mode of constitutional interpretation really cared about history, that would seem to be a quite significant bit of history for resolving this case.

nickdanger220426The Rahimi issue is whether people subject to domestic protection orders are dangerous. But if SCOTUS focuses on “dangerousness,” that suggests that maybe people disqualified from owning firearms because of prior convictions – like Bryan Range in the 3rd Circuit case now awaiting a decision on certiorari – convicted of nonviolent crimes may still benefit from Bruen.

New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111, 213 L.Ed. 2d 387 (2022)

SCOTUSBlog, Justices appear wary of striking down domestic-violence gun restriction (November 7, 2023)

Sentencing Law and Policy, Some press pieces reviewing SCOTUS argument in Rahimi Second Amendment case (November 7, 2023)

Reason, Only ‘Dangerous Individuals’ Lose Their Gun Rights Because of Protective Orders, the Government Says (November 8, 2023)

– Thomas L. Root