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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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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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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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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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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

Showdown at 922(g) Corral Becomes All But Certain – Update for September 19, 2023

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10TH CIRCUIT SAYS FELON-IN-POSSESSION BAN IS CONSTITUTIONAL

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen has spawned a tsunami of 2nd Amendment attacks on 18 USC § 922(g), the subsection of the law that prohibits various classes of people (and we’re including you, drug-using Hunter Biden) from possessing guns or ammo.

gunfreezone170330Most notably, the 3rd Circuit ruled in Range v. Attorney General, an en banc decision last June, that the § 922(g)(1) felon-in-possession ban is unconstitutional as it applies to people convicted of nonviolent felonies (again –  if the tax stuff goes badly for you – Hunter Biden, we’d be talking about you again).

Other subsections of § 922(g) are faring no better.  A month ago, the 5th Circuit held in United States v. Daniels that § 922(g)(3)‘s ban on drug abusers possessing guns was unconstitutional.  That Circuit’s United States v. Rahimi decision had already held that someone subject to a civil protection order could not be prohibited from possessing a gun. The Supreme Court has granted certiorari in that case.

gunfight230919Range conflicts with United States v. Jackson, an 8th Circuit ruling from a week before Range was issued that holds that § 922(g)(1)‘s felon-in-possession ban remained a lawful limitation on gun possession even after Bruen. Last week, in Vincent v. Garland, a case with facts a lot those in like Range, the 10th Circuit agreed with Jackson’s reasoning. The odds of a showdown at the Supreme Court – perhaps a sweeping decision that is the firearms equivalent of the evisceration of Roe v. Wade – are increasing.

gun160718Melynda Vincent, addicted to meth at the time, was convicted of bank fraud 15 years ago. Now, with time served and her drug problems behind her, Melinda wants to own a gun again. She argued that the 10th Circuit’s 2009 precedent, United States v. McCane – that held § 922(g)(1) to be constitutional – was no longer good law after Bruen.

The 10th rejected her argument. The appellate court noted that McCane relied “solely” on District of Columbia v. Heller, a 2008 case in which the Supreme Court appeared to recognize that § 922(g)(1) was constitutional.

Though Bruen created a new test for determining the scope of the 2nd Amendment,” the 10th observed, “the Supreme Court didn’t appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons… First, six of the nine Bruen Justices pointed out that they were not casting any doubt on the [felon prohibition] language in Heller. Second, Bruen apparently approved the constitutionality of regulations requiring criminal background checks before applicants could get gun permits. In Bruen, the Court struck down state regulations that had required the showing of a special need before someone could get a license to carry a gun. But the Court added that it wasn’t questioning the constitutionality of “shall-issue” licensing regimes. These regimes don’t require a showing of special need, but they do ‘often require applicants to undergo a background check’ to ensure that the applicant is a ‘law-abiding, responsible citizen.’

The Circuit said that in preserving “shall-issue” background checks, the Supremes “arguably implied that it was constitutional to deny firearm licenses to individuals with felony convictions. Bruen’s language thus could support an inference that the 2nd Amendment doesn’t entitle felons to possess firearms.”

circuitsplit220516The government is planning to take Range to the Supreme Court by an October 5th deadline. This 10th Circuit holding that “Bruen did not indisputably and pellucidly abrogate our precedential opinion in McCane” makes the circuit split more pronounced than before, making a grant of certiorari on Range likelier than ever.

Vincent v. Garland, Case No 21-4121, 2023 USApp LEXIS 24554 (10th Cir. Sep. 15, 2023)

New York State Rifle & Pistol Association v. Bruen, 597 U.S. —, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (June 23, 2022)

United States v. McCane, 573 F.3d 1037 (10th Cir. 2009)

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

United States v. Jackson, 69 F.4th 495 (8th Cir. 2023)

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

– Thomas L. Root

Bruen Claims Another Victim (Albeit Reluctantly) – Update for July 6, 2023

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DISTRICT COURT SAYS § 922(g)(1) UNCONSTITUTIONAL

Deep in the Old South, federal judge Carreeves230706lton W. Reeves holds court. He is black, the first in his family to attend college, an Obama appointee with a resume of work for the ACLU. He wrote the district court decision that was ultimately reversed by the Supreme Court in Dobbs v Jackson Women’s Health Organization (the decision that struck down Roe v. Wade), and he has repeatedly blocked Mississippi laws widely considered to be discriminatory to LGBT persons.

In short, he’s a guy conventional wisdom figures to be in line with all that President Biden and the progressive wing of the Democratic Party hold dear, so much so that Biden last year made him the new chairman of the Sentencing Commission.

So you would expect Judge Reeves to be all in on gun control in general and the value of laws prohibiting felons from possessing guns in particular. You would be wrong.

Last week, Judge Reeves ruled in a 75-page opinion that the felon-in-possession statute violates the 2nd Amendment.

The government was prosecuting Jessie Bullock, who as a 31-year-old hothead had gotten into a fatal bar fight. He did time for manslaughter. Now, the 59-year-old Jessie was caught in possession of a .22 level-action rifle and a .22 revolver, hardly the stuff of gang wars or bank robberies. No matter. The government charged him with being a felon in possession.

daveanddad230706Jessie’s public defender moved to dismiss the charge as unconstitutional in the wake of last year’s Supreme Court decision in New York State Rifle & Pistol Ass’n, Inc v. Bruen.

Judge Reeves, who wanted the parties to agree that an expert historian be appointed to give a report on the history of laws prohibiting felons from having guns, lamented the lack of historical evidence supporting the cases the government cited in support of its position. “It is unsurprising that the government relies on jurisprudence filled with such methodological flaws,” he observed tartly, because “[t]he same errors define the Supreme Court’s own Second Amendment jurisprudence…”

Relying on the 3rd Circuit’s en banc Range decision of three weeks ago, Judge Reeves held that “the government[] does not identify a “well‐established and representative historical analogue” from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense.

historyvictors230706Although he ruled against the government, Judge Reeves criticized the judicial philosophy of “originalism,” underlying Bruen that holds that the Constitution should be interpreted as it was understood when it was written. For much of American history, he said, interpretation of the Constitution has changed to incorporate modern values, citing the 2015 Obergefell ruling legalizing same-sex marriage.

“The next generation will have its own conceptions of liberty,” the Judge wrote. “It will interpret the principles of the Constitution, enduring as they are, differently than this generation has interpreted them. Change is unstoppable.”

United States v. Bullock, Case No 3:18-CR-165, 2023 U.S. Dist. LEXIS 112397 (S.D.Miss., June 28, 2023)

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. —, 142 S.Ct. 2111, 213 Led 2d 387 (2022)

Reuters, Mississippi judge, dismissing gun charge, assails Supreme Court gun ruling (June 29, 2023)

– Thomas L. Root

There’s Gonna Be A Gun Fight – Update for July 3, 2023

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SUPREMES TO REVIEW RAHIMI

Recall that last February, the 5th Circuit held in United States v. Rahimi that the Supreme Court’s June 2022 New York State Rifle & Pistol Ass’n v. Bruen decision meant that 18 USC § 922(g)(8), “a specific statute that prohibits people subject to a domestic violence restraining order from possessing a gun” violated the 2nd Amendment.

gun160711Bruen held that when the 2nd Amendment’s plain text covers an individual’s conduct, “the Constitution presumptively protects that conduct.” The government must then prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, the 5th Circuit said, “clearly fundamentally changed our analysis of laws that implicate the 2nd Amendment… rendering our prior precedent obsolete.”

Zackey Rahimi was under a domestic protection order for stalking an ex-girlfriend when he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even squeezing off five rounds into the air when Whataburger declined his credit card.

The government argued that the 2nd Amendment applies to only “law-abiding, responsible citizens,” neither of which Zack was. But the 5th held that the government had not shown that § 922(g)(8)’s restriction of 2nd Amendment right “fits within our Nation’s historical tradition of firearm regulation… As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the 2nd Amendment.”

The government wasted no time filing a petition asking SCOTUS to grant certiorari, even asking the high court to waive its traditional 14-day period between the filing of a reply brief and deciding whether to grant review. On Friday the last day of the Supreme Court’s term before its four-month break, the Court announced it would review Rahimi.

whataburger230703The petition for certiorari argued that “[g]overnments have long disarmed individuals who pose a threat to the safety of others” and that the law “falls comfortably within that tradition,” and warned that allowing the 5th Circuit’s decision to stand would “threaten[] grave harms for victims of domestic violence.”

Zack urged the high court to deny review, calling the decision a “faithful application of Bruen.” Bruen has only been law for a year, he argued, and the lower courts are “now hard at work applying the new historical framework and re[e]valuating firearm restrictions that were previously upheld” before Bruen. Zack suggested that additional lower courts should interpret federal and state gun laws in light of Bruen before the Supreme Court weighs in.

The case will likely be argued in the fall, with a decision to follow sometime next year, and may well be the signature criminal law case of October Term 2023.

United States v. Rahimi, Case No 21-11001, 61 F.4th 443 (5th Cir. Mar. 2, 2023) (amended decision), certiorari granted (Case No. 22-915), June 30, 2023

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. —, 142 SCt. 2111, 213 Led 2d 387 (2022)

SCOTUSBlog, Justices take up major Second Amendment dispute (June 30, 2023)

– Thomas L. Root

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

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