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

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

IS SCOTUS TEEING UP § 922(g)(1)?

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

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

Trumpgun250113

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Deja Vu for the Second Amendment at the 9th Circuit – Update for July 23, 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 ‘GROUNDHOGS’ DUARTE GUN DECISION

groundhogday240723You may recall that in May, a 9th Circuit three-judge panel held that the 18 USC § 922(g)(1) ban on felons possessing guns was held to violate the Second Amendment rights of a guy convicted of drug trafficking.

Last week, the Circuit withdrew the opinion and set the case for en banc review.

In an unusual and entertaining “dissental” from grant of review, 9th Circuit Judge Lawrence VanDyke wrote,

What would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered?’ In the Ninth Circuit, if a panel upholds a party’s Second Amendment rights, it follows automatically that the case will be taken en banc. This case bends to that law. I continue to dissent from this court’s Groundhog Day approach to the Second Amendment.

Judge VanDyke only wrote what everyone already knows to be true. “In this circuit,” he said of the 9th, “you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court’s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court. The other 17/29ths of our bench is doing its best to avoid the Court’s guidance and subvert its approach to the Second Amendment. That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud….”

Meanwhile, the 8th Circuit last week struck down a Minnesota law preventing 18-to-20-year-olds from carrying handguns in public. The case, Worth v. Jacobson, is noteworthy for its application of United States v. Rahimi: “Minnesota states that from the founding, states have had the power to regulate guns in the hands of irresponsible or dangerous groups, such as 18 to 20-year-olds,” the Circuit wrote. “At the step one ‘plain text’ analysis, a claim that a group is ‘irresponsible’ or ‘dangerous’ does not remove them from the definition of the people.”

groundhogs240723

The 8th ruled that “a legislature’s ability to deem a category of people dangerous based only on belief would subjugate the right to bear arms “in public for self-defense” to “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” citing New York State Rifle & Pistol Ass’n v. Bruen and Rahimi.

The decision leaves little doubt that the 8th sees a ban on the entire category of people once convicted of felonies to be equally untenable under the Second Amendment. What this portends for the inevitable Supreme Court showdown on § 922(g)(1) depends in large part on the Third Circuit in Range and the Ninth’s rewrite of Duarte.

United States v. Duarte, Case No. 22-50048, 2024 U.S. App. LEXIS 17601 (9th Cir., July 17, 2024)

Worth v. Jacobson, Case No. 23-2248, 2024 U.S. App. LEXIS 17347 (8th Cir. July 16, 2024)

– Thomas L. Root

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

Duck Hunting With Steve Duarte – Update for May 21, 2024

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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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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