Tag Archives: bruen

Courts Blast Away at Constitutionality of Gun Possession Law – Update for February 6, 2023

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

APPEALS COURT DECLARES 18 USC § 922(g)(8) UNCONSTITUTIONAL, WHILE ELSEWHERE, DISTRICT COURT OK’S GUN-TOTING POT SMOKERS

The Supreme Court’s June 2022 New York State Rifle and Pistol Ass’n v. Bruen decision claimed another victim last week, as the 5th Circuit held that denying the right to possess guns to people subject to domestic violence protection orders violated the 2nd Amendment.

guns200304“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the Circuit said. “The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the 2nd Amendment of the Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen… it is not.”

Bruen 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 Second Amendment… rendering our prior precedent obsolete.”

creditcardshooting230206Zack 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.

The government argued that the 2nd Amendment applies to only “law-abiding, responsible citizens,” neither of which Zack was. But the 5th rejected that interpretation:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the 2nd Amendment’s protections…

The Circuit 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.”

gun160711Meanwhile, a Western District of Oklahoma court last Friday dismissed an indictment alleging violation of 18 U.S.C. § 922(g)(3) – prohibiting a drug abuser from possessing a gun – based on Bruen. The defendant had moved to dismiss the indictment because 18 U.S.C. § 922(g)(3) was so vague as to violate 5th Amendment due process. But in a 52-page decision that read more like a law review article than an order granting a pretrial motion, the court ignored due process and applied Bruen instead: “Because the Court concludes that 18 U.S.C. § 922(g)(3) violates Harrison’s Second Amendment right to possess a firearm, the Court declines to reach Harrison’s vagueness claim.”

United States v Rahimi, Case No 21-11001, 2023 U.S. App. LEXIS 2693 (5th Cir. Feb 2, 2023)

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022)

United States v. Harrison, Case No. CR-22-00328-PRW, 2023 U.S. Dist. LEXIS 18397 (W.D. Okla. Feb. 3, 2023)

– Thomas L. Root

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

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

ANOTHER WEEK, ANOTHER ATTACK ON 18 USC § 922

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

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

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

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

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

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

– Thomas L. Root