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The Guns of August – Update for August 11, 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.

“HISTORY IS OUR HEURISTIC”

The 5th Circuit already has a reputation in gun-lovin’ circles for applying last year’s New York State Rifle & Pistol Association v. Bruen decision in United States v. Rahimi, holding that even a dirtbag subject to a domestic protection order had a 2nd Amendment right to possess a gun.

whataburger230703(In its final action before fleeing Washington, DC, at the end of June for three months of summer vacation, the Supreme Court granted the government’s petition for certiorari in Rahimi, meaning that What-A-Burger, road rage, and stalking will soon be a part of 2nd Amendment discourse).

Under 18 U.S.C. § 922(g)(3), you may not possess a firearm if you are an “unlawful user” of a controlled substance. A couple of district courts have already ruled that Bruen invalidates this prohibition, but on Wednesday, Patrick Daniels – maybe the guy Charlie Daniels (no apparent relation) had in mind as driving down the highway while “tokin’ on a number and digging on the radio” – was the latest beneficiary of Bruen’s historical “heuristics.”

Pat is a dedicated but “unlawful user” of cannabis. When Pat was pulled over for a traffic infraction, police smelled marijuana in his car. A search turned up a couple of loaded handguns. When questioned, Pat admitted that he smoked marijuana about 14 days per month, although no one thought to ask him whether he was high at the time or, for that matter, test him for controlled substances.

marijuana221111That was a mere detail to the DEA, however. Before Pat knew it, he was charged with a § 922(g)(3) offense. A jury found him guilty, and he was sentenced to nearly four years in prison.

Pat appealed, arguing that Bruen made his conviction a violation of the 2nd Amendment. Two days ago, the 5th Circuit agreed.

The Circuit first concluded that the 2nd Amendment clearly applied to Pat:

The right to bear arms is held by “the people.” That phrase “unambiguously refers to all members of the political community, not an unspecified subset.” Indeed, the Bill of Rights uses the phrase “the people” five times. In each place, it refers to all members of our political community, not a special group of upright citizens. Based on that consistent usage, [District of Columbia v.] Heller concluded that “the Second Amendment right is exercised individually and belongs to all Americans.” Even as a marihuana user, Daniels is a member of our political community. Therefore, he has a presumptive right to bear arms. By infringing on that right, § 922(g)(3) contradicts the plain text of the Second Amendment.

The 2nd Amendment codified a “‘pre-existing right’ with pre-existing limits,” the 5th explained. Thus, “to ascertain those limits, history is our heuristic. Because historical gun regulations evince the kind of limits that were well-understood at the time the 2nd Amendment was ratified, a regulation that is inconsistent with those limits is inconsistent with the 2nd Amendment. So whether Pat’s conviction violated his 2nd Amendment right to bear arms “depends on whether § 922(g)(3) is consistent with our nation’s historical tradition of firearm regulation,” the 5th said. “It is a close and deeply challenging question.”

Smoke enough, and you might see this... but it wouldn't violate § 922(g)
Smoke enough, and you might see this… but it wouldn’t violate § 922(g)

However, the Circuit found, while “throughout American history, laws have regulated the combination of guns and intoxicating substances,” at no time “in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another… [O]ur history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the 2nd Amendment.”

Meanwhile, the 5th Circuit took in the chin last week when the Supreme Court reversed its refusal to stay a district court holding that new Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that effectively banned “ghost guns” violated the Administrative Procedure Act.

At the end of June, Judge Reed O’Connor of the Northern District of Texas held in Garland v. Vanderstok that ATF regulations defining “ghost guns” – kits of components that do not meet the definition of “firearm” but may be assembled, with some simple machining performed at home by the end user, into functional firearms lacking any serial number – as firearms exceeded the agency’s authority and thus were invalid.

The government sought a stay of Judge O’Connor’s order from the 5th Circuit, which the Circuit denied. On July 24, the 5th ruled that “[b]ecause the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule…This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.”

Last Wednesday, the Supreme Court reversed the 5th Circuit, holding in a one-paragraph order that Judge O’Connor’s injunction against the new rule is “stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”

The Supreme Court decision granting the stay was 5-4, with Justice Barrett in the majority. This surprised some commentators, who have placed Justice Barrett firmly in the pro-2nd Amendment camp. But as Slate argued Wednesday, her decision in favor of a stay does not necessarily mean the ATF can breathe easy:

Barrett’s vote may be attributable to her distaste for “nationwide vacatur.” In a recent decision, the justice cast serious doubt on the legality of this tool, which allows a lone federal judge to block a federal policy in all 50 states. She is quite right to be skeptical that this power exists, or at least that it can be used as freely as O’Connor and his fellow conservatives deploy it today… If that’s true, and Barrett’s vote was purely procedural, then the ghost guns rule is not out of the woods yet… When it comes back to SCOTUS on the merits, though, Barrett could vote to strike down the rule, since the side debate over O’Connor’s use of “vacatur” would no longer be relevant. Gun rights advocates will fight this one all the way to the bitter end. And the Biden administration should not assume it has Barrett on its side as it fights for the new rule’s long-term survival.

gun160711All of this is prelude for the central question of interest to prisoners, whether Bruen has invalidated 18 USC 922(g)(1), the felon-in-possession statute. That question, already decided in favor of defendants in the 3rd Circuit – Range v. Atty General – and against defendants in the 8th Circuit – United States v. Jackson – will no doubt be reaching the Supreme Court soon enough.

United States v. Daniels, Case No. 22-60596, 2023 U.S. App. LEXIS 20870 (5th Cir. Aug. 9, 2023)

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

N.Y. State Rifle & Pistol Ass’n v. Bruen, 599 U.S. —, 142 S. Ct. 2111 (2022)

Vanderstok v. Blackhawk Mfg. Grp. Inc., Civil Action No. 4:22-cv-00691, 2023 U.S. Dist. LEXIS 115474 (N.D. Tex. June 30, 2023)

Order, Garland v. VanderStok, Case No. 23A82, 2023 U.S. LEXIS 2870 (Aug. 8, 2023)

Reason, Supreme Court Lets Biden’s ‘Ghost Gun’ Regulations Stand Pending Ongoing Lawsuit (August 9, 2023)

Slate, The Big Question Behind Amy Coney Barrett’s Surprise Vote on Ghost Guns (August 8, 2023)

United States v. Jackson, Case No. 22-2870, 2023 U.S. App. LEXIS 13635 (8th Cir. June 2, 2023)

Range v. AG United States, 69 F.4th 96 (3d Cir. 2023)

– Thomas L. Root

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

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

8th Circuit Writes History on Constitutionality of 922(g) – Update for June 5, 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.

HISTORY LESSON

gunb160201Since the Supreme Court’s New York State Rifle & Pistol Ass’n, Inc. v. Bruen decision almost a year ago, the constitutionality of just about every federal limitation on gun possession (short of machine guns and howitzers) has been thrown into question. The most important limitation to most of this site’s readers is 18 USC § 922(g)(1), the messy statute prohibiting some convicted felons (but not all of them, see 18 USC § 921(a)(20) for the confusing details) from possessing guns or ammo.

Courts have ruled that prohibiting the users of controlled substances from possessing guns is unconstitutional, something that Hunter Biden’s lawyers are very interested in. One U.S. District Court has held that denying gun possession to someone under indictment is unconstitutional. And the 5th Circuit has held that denying a gun to someone subject to a domestic protection order is unconstitutional.

The most-watched case currently is the 3rd Circuit’s Range v. Attorney General. After a three-judge panel summarily said that § 922(g)(1)’s limitation preventing a guy convicted of a minor fraud three decades ago from having a gun was constitutional, the Circuit last January withdrew the decision and sent the case to an en banc reconsideration. That decision has not yet been handed down.

Last week, the 8th Circuit jumped into the fray, rejecting a defendant’s claim that “he had a constitutional right under the 2nd Amendment to possess a firearm as a convicted felon.”

bersa230605Defendant Edell Jackson was caught at a scene where shots had been fired with a cheap handgun in his pocket. He had two prior felony drug convictions. After a trial, he was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1). An appeal, he argued that § 922(g)(1) is unconstitutional as applied to him because his drug offenses were nonviolent and did not show that he is more dangerous than the typical law-abiding citizen.

Last week, the 8th Circuit held that § 922(g)(1) was “not unconstitutional as applied to Jackson based on his particular felony convictions.” The 8th noted that Supreme Court gun decisions, including Bruen, recognized that an individual right to keep and bear arms should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” but rather is “subject to certain reasonable, well-defined restrictions.” Those assurances, the Circuit held, along with the history that supports limitations on gun possession by felons means there is “no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).”

The Court marched through history, beginning with pre-colonial England and ending with the 1968 Gun Control Act, to argue that the right to bear arms was subject to restrictions, including “prohibitions on possession by certain groups of people.” The 8th noted that the now-withdrawn Range panel decision concluded that legislatures may disarm citizens who are not “law-abiding” (those unwilling to obey the laws “whether or not they had demonstrated a propensity for violence”). Edell’s argument was more refined: he contended that the constitution limited the laws to prohibiting gun possession “by those who are deemed more dangerous than a typical law-abiding citizen”).

The 8th held that by either § 922(g)(1) “is consistent with the Nation’s historical tradition of firearm regulation” and therefore constitutional:

We conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” the 8th ruled. “Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.

This Jackson panel decision – a ruling by three judges in the notoriously conservative Circuit – will hardly be as definitive as the Range decision expected from an en banc panel consisting of up to 25 active appellate judges, and it is certainly subject to attack for what I think is superficial historical analysis. But as a portent of how far Bruen may go in invalidating § 922(g)(1), Jackson is concerning.

There’s little doubt that the constitutionality of most if not all of § 922(g) will end up in front of the Supreme Court, but don’t look for that before 2025 at the earliest. All of this matters because it could invalidate thousands of § 922(g) convictions for people now serving sentences.

gun160718Meanwhile, remember United States v. Rahimi, the 5th Circuit decision that § 922(g)(8) – that prohibits people with domestic violence protection orders from gun possession – is unconstitutional? I reported that the government wasted no time seeking Supreme Court review. On May 30, defendant Rahimi filed his opposition to the government’s petition (after seven parties ranging from a New York county district attorneys’ group to California Governor Gavin Newsom filed petitions supporting grant of certiorari).

The very next day, the government asked SCOTUS to waive the usual two-week delay before considering the petition. With the delay, it is likely the Court will break for the summer without considering the petition until the end of September. The government is in a hurry to get this case heard.

United States v. Jackson, Case No 22-2870, 2023 U.S.App. LEXIS 13635 (8th Cir. June 2, 2023)

Range v. Attorney General, 53 F.4th 262 (3d Cir. 2022) (per curiam), rehearing en banc granted, 56 F.4th 992 (3d Cir. 2023)

Sentencing Law and Policy, 8th Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition (June 2, 2023)

United States v. Rahimi, Case No 21-11001, 61 F.4th 443 (5th Cir. 2023)

Rahimi v. United States, Case No 22-915 (Petition for certiorari filed Mar 17, 2023)

CNN, Texas man urges Supreme Court to stay out of major Second Amendment case (May 31, 2023)

– Thomas L. Root