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Rahimi Making § 922(g) Constitutionality Issue Messier – Update for January 21, 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.

RAHIMI ASCENDENT

The Supreme Court’s 2022 New York State Rifle & Pistol Assn. v. Bruen decision held that if a gun right (like going armed in public or even possessing one after a felony conviction) was one covered by the 2nd Amendment, the government could deny that right only if it could point to a law or regulation from 235 years ago that did the same.

Given that a federal law denying violent felons the right to have guns was not passed until 1938 – and it wasn’t expanded to all felons until 1968 – it seemed that Bruen was destined to lead to 18 USC § 922(g)(1), the felon-in-possession statute, being declared unconstitutional.

whataburger230703But then came Zack Rahimi, whose gun-fueled road rage and general craziness – including opening fire over an alleged fast food joint indignity – led to last summer’s SCOTUS decision that held § 922(g)(8) (which bans gun possession by people under a domestic protection order) was perfectly constitutional. In United States v. Rahimi, the Supremes held that Bruen didn’t mean that the government had to find a 235-year-old law that was a precise fit to § 922(g), provided that “the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’”

Rahimi “has been relatively impotent since the Court handed it down a few months back,” Jake Fogleman wrote in Sunday’s The Reload, but this “relevantly similar” test has now “inspired an appeals court to reverse a sweeping ruling against a federal firearms prohibition.”

The 5th Circuit unanimously upheld 18 USC § 922(n), which bars people under indictment from receiving guns, reversing a WD Texas district court decision handed down after Bruen but before Rahimi. Based on Rahimi’s refinement of the Bruen test, the Circuit ruled in United States v. Quiroz that “the government has met its burden of showing that § 922(n) is relevantly similar to pretrial detention at the founding [of the nation].” The court reasoned that the purpose of § 922(n) (public safety) and the burden it imposes (temporary disarmament) align with the historical justifications and effects of pretrial detention. It observed that many felonies punishable by death at the founding would have resulted in pretrial detention and disarmament, and that § 922(n) imposes a lesser burden by only restricting receipt of new firearms, not possession.

gunknot181009Other constitutional challenges to § 922 had an equally rocky time last week. In United States v. Quailes, the 3d Circuit held that despite its Range v Attorney General decision of a month ago, two defendants charged with § 922(g)(1) violations could be convicted consistent with the 2nd Amendment because they were on state parole when caught with guns and thus had not completed their sentences. The 3d said that “this Nation’s ‘history and tradition’ of ‘disarming convicts who are completing their sentences’ applies with equal force to defendants who are on state supervised release—including a sentence of parole or probation.”

In United States v. Contreras, the defendant had been convicted for being a drug user in possession of a gun (18 USC § 922(g)(3)). He did 24 months and then went on supervised release. While serving his supervised release term, he stupidly posted a picture on social media of himself holding a pistol. The police followed him and got him in a traffic stop with eight ounces of marijuana and the gun.

Last week, the 5th Circuit held that § 922(g)(1) was constitutional as applied to defendant Contreras. The 5th compared the felon-in-possession prohibition to § 922(n), which temporarily restricts defendants’ access to guns for public safety reasons and “align[s] with the historical justifications and effects of pretrial detention,” as well as colonial-era laws disarming people who are intoxicated.

“Here,” the Circuit said, “we have Contreras, a felon who after being convicted for being armed while intoxicated and being placed on temporary supervised release, was again found armed while intoxicated, this time while completing the sentence for the first crime… There is no ‘historical twin’ of § 922(g)(1); but that is not what our jurisprudence requires… Instead, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”

Finally, in United States v. Curry, the 5th Circuit last week rejected a claim that the felon-in-possession statute was facially unconstitutional, that is, that it necessarily violated the 2nd Amendment is all cases. This decision was unsurprising in light of Rahimi.

easypeasy230214In his Rahimi dissent, Justice Clarence Thomas predicted that the “relevantly similar” test was overbroad. “Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes.”

Fogleman wrote that as the result of Rahimi’s “relevantly similar” test is that “a panel from a circuit known for going much [further] than its peers in hewing to a strict interpretation of the Bruen test has now okayed a modern gun law based on loose principles related to detaining suspected criminals at the time of the Founding.”

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

United States v. Rahimi, 602 US 680 (2024)

The Reload, Analysis: Rahimi Makes an Impact (January 19, 2025)

United States v. Quiroz, Case No. 22-50834, 2025 U.S.App. LEXIS 706 (5th Cir. January 13, 2025)

United States v. Quailes, Case No 23-2533, 2025 U.S.App. LEXIS 1107 (3d Cir. January 17, 2025)

United States v. Contreras, Case No 23-50840, 2025 U.S.App. LEXIS 701 (5th Cir. January 13, 2025)

United States v. Curry, Case No 22-11084, 2025 U.S.App. LEXIS 702 (5th Cir. January 13, 2025)

– Thomas L. Root

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

A Good Day At The ‘Range’ – Update for December 27, 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.

Today marks our 1700th post since our beginning in 2015.1700th-241227

RANGE REDUX

A little more than two years ago, a 3d Circuit panel of three appellate judges held that arch-criminal Bryan Range – a man whose rap sheet included traffic tickets, fishing without a license and a misdemeanor false statement 25 years ago to get food stamps for his hungry family – had no 2nd Amendment right to own a hunting rifle or buy a shotgun.

gun-sw629-241227Cooler heads prevailed. Granting en banc review, the Circuit issued a seminal decision, holding that a prior nonviolent offense qualifyingi under 18 USC § 922(g)(1) to prohibit someone from having a gun violated the 2nd Amendment.

The government sought Supreme Court review, but while the petition was pending, the Supremes handed down United States v Rahimi, a case that held that the temporary disarming of someone under a court-issued domestic protection order could be disarmed without offending the 2nd Amendment. SCOTUS remanded all of the 2nd Amendment challenges on its docket – including the Range decision – for reconsideration in light of Rahimi.

Since then, the 8th Circuit decided that Edell Jackson, a convicted drug dealer, could be disarmed under 18 USC § 922(g)(1) consistent with the 2nd Amendment. The 6th Circuit held in United States v. Williams that a felon with violent offenses in his past was properly subject to 922(g)(1) consistent with the 2nd Amendment (leaving open the question of § 922(g)(1)’s effect on people with nonviolent felonies), and – just last week – the 4th Circuit said that anyone with a felony conviction was outside the protection of the 2nd Amendment.

Now, the en banc 3rd Circuit has delivered for Bryan like Santa on Christmas Eve, holding last Monday that Bryan Range’s right to own a gun remains protected by the 2nd Amendment despite his quarter-century-old fraud offense.

Applying New York State Rifle & Pistol Association v. Bruen and Rahimi, the en banc Circuit “reject[ed] the Government’s contention that ‘felons are not among “the people” protected by the 2nd Amendment’ [and] that Bryan Range remains among ‘the people’ despite his 1995 false statement conviction. The 3d then rules that

[h]aving determined that Range is one of “the people,” we turn to the easy question: whether § 922(g)(1) regulates 2nd Amendment conduct. It does.

Against this backdrop, it’s important to remember that Range’s crime—making a false statement on an application for food stamps—did not involve a firearm, so there was no criminal instrument to forfeit. And even if there were, government confiscation of the instruments of crime (or a convicted criminal’s entire estate) differs from a status-based lifetime ban on firearm possession. The Government has not cited a single statute or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit a crime. Nor has the Government cited forfeiture cases in which the convict was prevented from regaining his possessions, including firearms (unless forfeiture preceded execution). That’s true whether the object forfeited to the government was a firearm used to hunt out of season, a car used to transport cocaine, or a mobile home used as a methamphetamine lab. And of those three, only firearms are mentioned in the Bill of Rights.

For the reasons stated, we hold that the Government has not shown that the principles underlying the Nation’s historical tradition of firearms regulation support depriving Range of his 2nd Amendment right to possess a firearm.

iloveguns221018The Circuit noted that its decision “is a narrow one. Bryan Range challenged the constitutionality of 18 USC § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).” This suggests that those with prior convictions might have to apply piecemeal for confirmation that their 2nd Amendment rights remain intact.

The 6th Circuit has implied the same, complaining that the defendant – who was arguing in appeal of a § 922(g)(1) conviction that application of the felon-in-possession statute violated the 2nd Amendment – never sought to have his 2nd Amendment rights confirmed until he was caught with a gun.

For now, Range II is a breath of fresh air. The Circuit held resoundingly that Bryan “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. More than two decades after he was convicted of food-stamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm. The record contains no evidence that Range poses a physical danger to others. Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.”

Range creates a clear and well-defined circuit split on the constitutionality of 18 USC § 922(g)(1). This is probably not the end of the inquiry, although perhaps the Trump Dept of Justice may not share the current administration’s ardor for seeking certiorari on every 922(g)(1) case to come down the pike.

gun160711Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, noted that Bryan’s “case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime. Because this Range ruling creates a clear circuit split on the constitutionality of 18 USC § 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the US Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the 2nd Amendment in this particular ‘narrow’ case.”

Range v. AG United States, Case No. 21-2835 (3d Cir. Dec. 23, 2024) 2024 U.S. App. LEXIS 32560, at *1

Sentencing Law and Policy, En banc Third Circuit again finds federal felon-in-possesion ban unconstitutional as applied to Byran Range (December 23, 2024)

– Thomas L. Root

6th Circuit Applies Williams to § 922 Cases – Update for October 18, 2024

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A CINCINNATI GUN SHOW

The 6th Circuit last week wasted no time finding practical applications for its August holding in United States v. Williams that while 922(g) may not categorically disqualify everyone within its prohibitions on firearms ownership, it does when dangerousness is involved.

gunshow241018Williams established that felons are among “the people” protected by the 2nd Amendment. Williams held that consistent with the 2nd Amendment, “our nation’s history and tradition demonstrate that Congress may disarm individuals they believe are dangerous,” and so “most applications of § 922(g)(1) are constitutional.” Applying that standard to defendant Williams, the panel concluded that the defendant’s § 922(g)(1) felon-in-possession conviction was constitutional in light of his extensive criminal record, which included aggravated robbery and attempted murder.

After Williams, defendants may still argue that their facts make them an individualized exception to the application of § 922(g)(1). That’s what Christopher Goins argued. He was on probation for a state felony when he had a friend buy him two AR-15 frame pistols at a gun store. Chris took possession of the firearms in the gun store parking lot in full view of surveillance cameras.

At the time Chris took delivery of the gun, he had multiple convictions for crimes punishable by imprisonment for more than one year, including a DUI, driving under the influence on a suspended license, and possession of drugs. A state court had initially sentenced Chris to one year of jail time for each of the three offenses, but it then withheld the sentence and instead gave Chris to 120 days of imprisonment and four years of probation. One condition of probation was that Chris could not possess a weapon of any kind.

The 6th upheld Chris’s § 922(g)(1) conviction, finding that the nation’s “historical tradition demonstrates that Congress may lawfully disarm probationers like Goins, who (1) are under a firearm possession limitation as a condition of probation, (2) are under a relatively short probation sentence for a dangerous crime, and (3) whose repeated and recent actions show a likelihood of future dangerous conduct.”

nickdanger220426The same day, another 6th Circuit panel ruled that Jaylin Gore’s conviction for possessing a stolen gun (18 USC 922(j)) and receipt or transfer of a gun while under indictment (922(n)) was consistent with the 2nd Amendment.

The Circuit ruled that “there is ample historical support for prohibitions on the purchase or receipt of stolen goods and “there is no indication that firearms were exempt from such laws.”

As for prohibiting receipt or transfer of a gun while under indictment, the 6th ruled, “§ 922(n)’s prohibition is comparable to the founding-era history of pretrial detention ‘in both why and how it burdens the 2nd Amendment right… Like pretrial detention, § 922(n) restricts indicted persons’ rights during the fraught period between indictment and trial, for the purpose of furthering public safety and protecting the integrity of the criminal process. And just as bail was denied outright only for defendants facing serious charges, so § 922(n) is triggered only by indictment for a felony charge… So for those who already possess one or more firearms, § 922(n) represents only a slight burden on the 2nd Amendment right; and even for those who do not, § 922(n)’s prohibition is a lesser burden than detention or permanent disarmament.”

Finally, the 6th held last Thursday that Sylvester Gailes, a guy described as a “serial perpetrator of domestic violence,” could not use the 2nd Amendment to avoid his § 922(a) conviction. Sly had repeatedly beaten the mother of his children (occasionally doing so in the presence of the kids). He had been convicted of multiple domestic violence misdemeanors.

Under 18 USC § 922(g)(9), someone convicted of a misdemeanor crime of domestic violence is prohibited from possessing a gun.

The Circuit ruled that “domestic violence convictions generally involve some sort of physical force… When the presence of a gun accompanies the use of physical force, the likelihood that abuse turns to homicide greatly increases… It is no surprise then that Congress sought to deprive people with domestic violence convictions from possessing firearms.”

guns170111The 6th held that “[t]aken together, Rahimi [which held that someone subject to a domestic protection order] and Williams evince that our history and tradition of firearm regulation support § 922(g)(9). Although § 922(g)(9) is by no means identical to the historical sources above or a founding-era regime, it does not need to be. The historical sources cited in Rahimi and Williams establish the constitutionality of modern firearms regulations targeting those who pose a clear threat of physical violence to another.

United States v. Williams, 113 F.4th 637 (6th Cir., 2024)

United States v. Goins, Case No 23-5848, 2024 U.S.App. LEXIS 25355 (6th Cir., October 8, 2024)

United States v. Gore, Case No 23-3640, 2024 U.S.App. LEXIS 25361 (6th Cir., October 8, 2024)

United States v. Gailes, Case No 23-5928, 2024 U.S.App. LEXIS 25571 (6th Cir., October 10, 2024)

– Thomas L. Root

5th Circuit Suggests Felon-In-Possession May Sometimes Violate 2nd Amendment – Update for September 23, 2024

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NO GUNS FOR HORSE THIEVES… BUT MAYBE FOR OTHERS

While upholding a felon-in-possession conviction against Ronnie Diaz, the 5th Circuit ruled last week that 18 USC § 922(g)(1) nevertheless may violate the 2nd Amendment in some cases.

grandtheftauth240923

Ron’s conviction was not his first felon-in-possession rodeo. In 2014, he did three years in state prison in 2014 for stealing a car and evading arrest. Four years later, he was caught breaking into a car while carrying a gun and a baggie of meth. He did two years in state for a Texas charge of possessing a firearm as a felon. (Yeah, it’s illegal there, too).

After a November 2020 traffic stop that got kicked up to the Feds, Ron was convicted of 21 USC § 841(a)(1) drug trafficking, an 18 USC 18 USC § 924(c) count for possessing a gun during a drug crime, and a § 922(g)(1) felon-in-possession. Ron moved to dismiss the § 922(g)(1) as unconstitutional under New York State Rifle & Pistol Association v. Bruen. The district court denied him.

The district court denied Ron’s Bruen motion. Ron appealed, and last week, the 5th Circuit agreed.

Bruen addressed whether a state law severely limiting the right to carry a gun in public violated the 2nd Amendment right to bear arms. When a law limits 2nd Amendment rights, Bruen held, the burden falls on the government to show that the law is “consistent with this Nation’s historical tradition of firearm regulation.” This involves addressing “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” In Bruen, the Court held that the plain text of the 2nd Amendment protects the right to bear arms in public for self-defense and that the government had failed to “identify an American tradition” justifying limiting such behavior.

Then in United States v. Rahimi, the Supreme Court last June ruled that 18 USC § 922(g)(8) – that prohibits people under domestic protection orders from having guns – passed the Bruen test. Comparing § 922(g)(8) to colonial “surety and going armed” laws that prohibited people from “riding or going armed, with dangerous or unusual weapons to terrify the good people of the land,” the Supreme Court held that § 922(g)(8) was analogous to such laws,  only applied once a court has found that the defendant “represents a credible threat to the physical safety” and only applied only while a restraining order is in place.

Violating the “surety and going armed” laws could result in imprisonment. The 5th said that “if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that § 922(g)(8) imposes is also permissible.”

horsethief240923The 5th noted that “felony” is much too malleable a term to serve as a basis for deciding § 922(g)(1)’s constitutionality. Instead, it compared each of Ron’s prior convictions to colonial laws. Stealing a car, the Circuit decided, was analogous to colonial laws against horse thievery, and horse thieves in colonial America “were often subject to the death penalty.” Such laws “establish that our country has a historical tradition of severely punishing people like Diaz who have been convicted of theft,” meaning that a permanent prohibition on possessing guns passes 2nd Amendment muster.

“Taken together,” the Circuit said, “laws authorizing severe punishments for thievery and permanent disarmament in other cases establish that our tradition of firearm regulation supports the application of § 922(g)(1) to Diaz.”

Considering the obverse, the Diaz opinion suggests that other offenses unknown in colonial times – like selling drugs, downloading child porn, securities fraud, or conspiracy to do anything illegal – could not trigger the felon-in-possession statute consistent with the 2nd Amendment. Requiring a court to parse a defendant’s priors in order to convict him of a § 922(g)(1) would make a confusing hash of any felon-in-possession case.

Writing in his Sentencing Policy and Law blog, Ohio State University law professor Doug Berman observed that “the 8th Circuit has categorically rejected 2nd Amendment challenges to § 922(g)(1)… whereas the 6th Circuit has upheld this law “as applied to dangerous people.” The 5th Circuit has now upheld the law… based on the fact that there were Founding era laws ‘authorizing severe punishments for thievery and permanent disarmament in other cases’… [T]he fact that three circuits have taken three different approaches to this (frequently litigated) issue is yet another signal that this matter will likely have to be taken up by SCOTUS sooner rather than later.”

United States v. Diaz, Case No. 23-50452, 2024 U.S. App. LEXIS 23725 (5th Cir., September 18, 2024)

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

United States v. Rahimi, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024)

Sentencing Policy and the Law, Fifth Circuit panel rejects Second Amendment challenge to federal felon in possession for defendant with prior car theft offense (September 20, 2024)

– Thomas L. Root

Felon-In-Possession 2nd Amendment Challenges Are Trending – Update for September 20, 2024

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922(g) FELON IN POSSESSION CHALLENGES EXPLODE AFTER BRUEN

The Trace reported last week that 55% of over 2,000 federal court decisions citing New York State Rifle & Pistol Association v. Bruen over the past two years have challenged the constitutionality of 18 USC § 922(g)’s ban on felons possessing guns and ammo, “making it the single most frequently contested statute by far.”

guns200304The latest example was handed down two days ago in United States v. Diaz. In that case, the 5th Circuit ruled that just being a felon was insufficient to make the application of 18 USC § 922(g)(1) consistent with the Second Amendment. But where the defendant had been convicted of a felony of theft, that “would have led to capital punishment or estate forfeiture” at the time the Second Amendment was ratified, “disarming [the defendant] fits within this tradition of serious and permanent punishment” and is thus constitutionally applied.

I will write more about Diaz on Monday. For now, back to the trendline:

The Trace reported that “at least 30 of the challenges to the felon gun ban have succeeded. While that ratio may seem small, it marks a stark departure from the past, when effectively none succeeded, and it shows that Bruen has cracked the longstanding consensus that people convicted of serious crimes may constitutionally be barred from gun ownership.”

When weighing the felon gun ban, judges have distinguished between violent and nonviolent offenses. But a former prosecutor told The Trace (an unapologetically anti-gun publication), that drawing the line is tough. “Who’s dangerous? What is your definition of dangerous? It’s easier to have a bright line. But that bright line is gone.”

Andrew Willinger, the executive director of the Duke Center for Firearms Law – which disseminates and supports reliable, balanced, and insightful scholarship and programming on firearms law – said it remains unclear whether banning gun possession among entire categories of people, like felons, is constitutional, particularly when their convictions were for nonviolent offenses that posed no obvious danger to the public.

“You’re really talking about categorical group determinations, rather than any kind of individualized finding of a threat of danger,” Willinger said. “And [United States v.] Rahimi doesn’t endorse [categorical prohibitions], but it also doesn’t rule them out, right?”

gun160711No one can know how the Supreme Court will rule when the felon gun ban finally gets to the high court, although no one can doubt that it will. When Justice Amy Coney Barrett was a 7th Circuit judge, she wrote a dissent favoring restoration of gun rights to nonviolent felons. “That is probably the direction that the Supreme Court is headed if and when it takes up these cases,” Willinger said, “which I think it probably has to do at some point in the near future.”

The Trace, More Than a Thousand Felons Have Challenged Their Gun Bans Since the Supreme Court’s Bruen Decision (September 12, 2024)

United States v. Diaz, Case No. 23-50452, 2024 U.S. App. LEXIS 23725 (5th Cir., September 18, 2024)

– Thomas L. Root

Open Season on Gun Laws – Update for August 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.

FURBALL OVER SECOND AMENDMENT CONTINUES

lotsalaw240813As a young pup in law school a half-century ago, I had a contract law professor, Robert J, Nordstrom, who was as theatrical as he was brilliant. One day while discussing an obscure point of contract law, he dramatically waved his arm in the general direction of the law library and said, “Remember, people, there’s enough law in there for everybody.”

I got his point. A canny lawyer could find a decision somewhere in the law books that supported whatever position – however ridiculous – he or she wanted to take. Turns out that the same is true of history.

After New York State Rifle & Pistol Association v. Bruen, lawyers stampeded to the history books to find evidence that the many statutes regulating guns on the federal and state books had 18th and 19th-century precedents. Then, last June’s United States v. Rahimi decision relaxed the Bruen standard a bit, clarifying that the historical regulation didn’t have to be identical, just analogous.

In other words, the history doesn’t have to fit exactly. It just has to sort of fit. What’s more, in the fitting, the courts can draw such conclusions as they wish. The results are a pastiche of contradictions. For instance, AR-15s can be banned in Maryland but not in New Jersey.

In the last two weeks alone

• the 8th Circuit quickly upheld its decision that 18 USC § 922(g)(1) did not violate the 2nd Amendment when applied to a defendant previously convicted of a drug offense. The case had been appealed to the Supreme Court but was remanded for the Circuit to reconsider it in light of Rahimi. The Circuit ruled that the Supreme Court said in District of Columbia v. Heller that nothing has “cast doubt on longstanding prohibitions on the possession of firearms by felons,” and that neither Bruen nor Rahimi nor historical analysis changed that.

United States v. Jackson, Case No. 22-2870, 2024 U.S.App. LEXIS 19868 (8th Cir., Aug. 8, 2024)

• the 11th Circuit ruled that neither Bruen nor Rahimi “abrogate[d] our previous holding that § 922(g)(1) does not violate the 2nd Amendment because “felons are categorically ‘disqualified’ from representing their 2nd Amendment right under Heller.”

United States v. Lowe, Case No. 22-13251, 2024 U.S.App. LEXIS 19494 (11th Cir. Aug. 5, 2024)

minuteman240813• the 4th Circuit upheld Maryland’s ban on “assault weapons,” concluding that guns such as the popular AR-15 platform (perhaps 25 million copies in civilian hands in the United States) are outside 2nd Amendment protection because they are “military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.” The Circuit cited Blackstone’s Commentaries on the Laws of England (1769) that noted existing prohibitions on “riding or going armed, with dangerous or unusual weapons, which would terrify the good people of the land.”

Bianchi v. Brown, Case No. 21-1255, 2024 U.S.App. LEXIS 19624 (4th Cir. Aug. 6, 2024)

• on July 30, the US District Court for New Jersey ruled that the state’s AR-15 platform ban violated the 2nd Amendment because the style of rifle is commonly owned throughout the United States and well-adapted for self-defense.

Association of New Jersey Rifle & Pistol Clubs, Inc., v. Platkin, Case No. 18-10507, 2024 U.S.Dist. LEXIS 134737, (D.N.J., July 30, 2024)

• In the same week, the 4th ruled that 18 USC § 922(k) – which outlaws possession of a gun with an obliterated serial number – did not violate the 2nd Amendment. The Circuit said that because “we cannot fathom any common-sense reason for a law-abiding citizen to want to use a firearm with an obliterated serial number for self-defense, and there is no evidence before us that they are nonetheless commonly lawfully used, we conclude that firearms with obliterated serial numbers are not in common use for a lawful purpose and they therefore fall outside the scope of the 2nd Amendment’s protection.”

United States v. Price, Case No. 22-4609, 2024 U.S.App. LEXIS 19623 (4th Cir. Aug. 6, 2024)

furball240813The more we see the Bruen standard applied, the confusing-er it gets. The Rahimi holding, at least this early in the game, does not seem to have helped a lot.

Professor Nordstrom might have said, “There’s enough history out there for everyone.”

Pick your facts and make your holdings.

– Thomas L. Root

Clues to Rahimi Application Pop Up in Circuit 922(g) Decisions – Update for August 5, 2024

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A PAIR OF § 922(g)(1) CASES

gunfight230919I remain convinced that the Supreme Court’s United States v. Rahimi decision — banning gun possession for an individual who has shown himself to be dangerous is historically justified under the Second Amendment — represents a necessary correction to the wild, wild west of gun rights suggested by Justice Thomas’s New York State Rifle & Pistol Ass’n v. Bruen opinion. In fact, I suspect that Rahimi makes it more likely that people convicted of nonviolent felonies will regain their Second Amendment rights in the next two years.

Two cases decided last week may hint at how courts will approach a post-Rahimi felon-in-possession world.

Carl Langston was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1) after a drunken brawl at a bar. He pled guilty but, on appeal, argued for the first time that § 922(g)(1) was unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen as applied to him.

Last Friday, the 1st Circuit upheld his conviction. The Circuit applied the F.R.Crim.P. 52(b) plain error standard to review because Carl hadn’t raised the issue in the trial court and found that his argument failed because (1) no prior Supreme Court or 1st Circuit holds that § 922(g)(1) is unconstitutional “in any of its applications;” and (2) Rahimi “does not compel the conclusion that § 922(g)(1) is unconstitutional under the Second Amendment as applied to defendants with Hugh’s criminal history.

gun160711In fact, the 1st observed, “rather than compelling the conclusion that § 922(g)(1) is unconstitutional, the Supreme Court’s Second Amendment cases consistently reiterate, albeit in dicta, the presumptive lawfulness of the felon-in-possession statute… The Supreme Court’s majority opinion in Rahimi, joined by eight justices, once again identified prohibitions on the possession of firearms by felons as ‘presumptively lawful’.”

It’s hard to win a “plain error” appeal, as Carl found out. However, the Circuit conceded that Carl’s appeal

presents a serious constitutional claim that the Supreme Court has not yet resolved. As Langston points out, Rahimi held only that an individual may be temporarily disarmed, consistent with the Second Amendment, if a court has found that the individual poses a credible threat to the physical safety of another. Still, the Supreme Court has stated repeatedly over sixteen years, from [District of Columbia v] Heller to Rahimi, that felon-in-possession laws are presumptively lawful. Thus, on plain-error review, we cannot agree with Carl that the mere fact that the government did not introduce historical evidence to support the constitutionality of § 922(g)(1) makes it clear and obvious that his conviction violates the Second Amendment.

Meanwhile, the 3rd Circuit ruled that Dionti Moore, who used his fiancée’s handgun to frighten off intruders at her home while he was on supervised release, had no Second Amendment defense to a § 922(g)(1) felon-in-possession conviction.

The Circuit relied on Rahimi’s holding that it had to find that § 922(g)(1), as applied to Dionti, is “relevantly similar to laws that our tradition is understood to permit… [and that] why and how the regulation burdens the right are central to this inquiry… In other words, a modern firearms regulation passes constitutional muster only if it is “consistent with the principles that underpin our regulatory tradition.”

Comparing 18th and 19th-century laws to disarming a convicted felon while on supervised release, the 3rd ruled that “the bottom line is this: during the founding era, forfeiture laws temporarily disarmed citizens who had committed a wide range of crimes… This historical practice of disarming a convict during his sentence — or as part of the process of qualifying for pardon — is like temporarily disarming a convict on supervised release. After all, the defendant receives a term of supervised release thanks to his initial offense, and… it constitutes a part of the final sentence for his crime’” (quoting the Supreme Court ruling in United States v. Haymond). The Circuit concluded that “[c]onsistent with our Nation’s history and tradition of firearms regulation, we hold that convicts may be disarmed while serving their sentences on supervised release.”

Of course, the Court’s focus on “temporarily” disarming and “disarm[ing] while serving their sentences on supervised release” can easily be read to infer that permanently disarming someone with a felony conviction on his record is a different matter altogether.  

gunfreezone170330One would expect nothing less from the Circuit that handed down the en banc Range v. Attorney General decision, which is currently in front of the 3rd Circuit on remand.  Incidentally, supplemental briefs by both Bryan Range and the government were filed last Friday, suggesting a new decision is on the fast track in Philadelphia. There is little doubt that whatever the decision, it will end up again at the Supreme Court.

United States v. Langston, Case No. 23-1337, 2024 U.S.App. LEXIS 19353 (1st Cir. Aug 2, 2024)

United States v. Moore, Case No. 23-1843, 2024 U.S.App. LEXIS 19282 (3d Cir. Aug 2, 2024)

– Thomas L. Root

Deja Vu for the Second Amendment at the 9th Circuit – Update for July 23, 2024

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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

Supremes Delay The Day of Reckoning for Felon-in-Possession – Update for July 12, 2024

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CAN I CALL ‘EM OR WHAT?

gun160711In the wake of the Rahimi decision holding that the 2nd Amendment does not prevent the Feds from prohibiting people subject to domestic protection orders from having a gun, the Solicitor General filed a surprising request with the Supreme Court that it immediately grant review to a swath of felon-in-possession cases in order to settle the issue of whether 18 USC § 922(g)(1) can be constitutionally applied to a variety of situations and disqualified people.

I jubilantly reported this development and confidently hinted that a new day would soon dawn on the application of a statute responsible for about one-fifth of all federal criminal convictions. Content with my prognosis, I departed for a week in windswept but beautiful Iceland.

I returned to find out that my prediction was (once again) wrong. But then, I had plenty of company, including the SG, who lost her bid for a quick turnaround on felon-in-possession. On July 2, the Supreme Court cleared its plate of five pending § 922(g)(1) petitions for review by GVR, ordering them back to the lower courts to be reheard in light of Rahimi.

This means that the horizon for a definitive decision on the constitutionality of 18 USC § 922(g)(1) is now more like two years than one. The various courts of appeal will have to review the remanded cases through the Rahimi lens, one which permits an expanded view of what historical gun ban precedents are suitable analogues to § 922(g)(1)’s ban on felons possessing guns (which as a blanket prohibition only became law in the 1960s).

She now rests in peace, but was she ever dangerous?
She now rests in peace, but was she ever dangerous?

Rahimi emphasized that laws about general dangerousness could justify § 922(g)(8)’s banning gun possession while under a domestic violence restraining order. The Washington Post, however, complained last Sunday that “experts say the decision was written so narrowly that it does not make clear how to address other clauses of the same federal law… Critics say the Rahimi ruling does not solve the inherent problem created by Bruen — that judges are being asked to evaluate history, based on limited records assembled by dueling teams of lawyers.”

More importantly, Rahimi’s cautionary language that the Court was skeptical of broad categorical bans untethered to findings of dangerousness means that the Range holding that § 922(g)(1) is unconstitutional as applied to a guy who was convicted of a minor food stamp fraud 25 years ago will not change. At the same time, it is hard to believe that the 10th Circuit will not have to reverse its holding that Melynda Vincent – convicted of passing a bad $500 check 15 years ago when she was addicted to drugs but now a respected community leader in developing science-driven drug and criminal justice reform — can be prohibited from owning a gun consistent with the 2nd Amendment.

doggun240213The other cases are closer calls. Can a guy  with prior violent offenses be banned under § 922(g)(1)? How about a guy whose felon-in-possession conviction was in connection with drug trafficking? Both of those issues will have to be addressed by courts of appeal before the issue is ripe for SCOTUS review.

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

It seems SCOTUS has GVRed all the felon-in-possession cases that the US Solicitor General suggested be taken up right away in light of Rahimi. I am not really surprised the Justices are content to kick federal felon-in-possession cases down the road, but it simply ensures a lot more legal churn in lower courts (and perhaps a lot more people unconstitutionally prosecuted) as the Justice go off on their summer vacation and the rest of us try to read Rahimi tea leaves. There is little doubt in my mind that the Justices will have to resolve the constitutionality of § 922(g)(1) sooner or later, but they ultimately get to decide just when and how, while the rest of us deal with the legal uncertainty.

United States v. Rahimi, Case No. 22-915, 602 U.S. —,  219 L.Ed.2d 351 (June 21, 2024)

Garland v. Range, Case No. 23-374, 2024 U.S. LEXIS 2917 (July 2, 2024)

Vincent v. Garland, Case No. 23-683, 2024 U.S. LEXIS 2931 (July 2, 2024)

The Reload, Analysis: SCOTUS Passes Up Gun Ban Case… For Now (July 5)

Sentencing Law and Policy, Supreme Court grants cert on First Step resentencing, GVRs gun issues, and lots of statements in (final?) order list (July 2)

Washington Post, The Supreme Court upended gun laws nationwide. Mass confusion has followed. (July 7)

– Thomas L. Root