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St. Vincent Must Remain Unarmed, 10th Says – Update for February 18, 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.

ADDING TO THE 922(g)(1) MAYHEM…

melyndavincent250218You may remember Melynda Vincent, a woman convicted of bank fraud 15 years ago for writing some bad checks while in the throes of drug addiction. Since then, Melynda cleaned up, graduated from a drug treatment program, earned an undergraduate degree and two graduate degrees, and founded the Utah Harm Reduction Coalition – a nonprofit organization for drug treatment and criminal-justice reform – and a mental health counseling service, Life Changes Counseling.

She’s a poster child for rehabilitation. No, more than that, maybe for sainthood, someone who turned a horrific past and debilitating addiction into something that will benefit countless people (and make society safer).  A therapist who has ‘walked the walk’ the people she counsels are on right now.

In 2021, Melynda sued to be allowed to own a gun. No matter that she might be a saint. The 10th Circuit held that 18 USC § 922(g)(1)’s felon-in-possession prohibition on gun possession was constitutional as applied to her. After all, she was a felon and that was the end of the story.

At the time, Melynda took her argument to the Supreme Court. SCOTUS sat on her petition for certiorari (along with the government’s request that the high court review the 3d Circuit’s Range decision), and then finally GVR’d her, sending the case back to the 10th for reconsideration in light of United States v. Rahimi.

‘Hint, hint,’ SCOTUS seemed to be saying to the Circuit, ‘take a look at her ‘dangerousness’ before you rubber-stamp a denial based on pre-Rahimi law.

Last week, the 10th ignored the hint. It held that despite New York State Rifle & Pistol Assn v. Bruen and despite Rahimi, its 2009 decision in United States v. McCane that § 922(g)(1) was constitutional when applied to any felon in any situation was still good law. The Circuit relied “on the Supreme Court’s 2008 statement in District of Columbia v. Heller that it was not ‘cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons’” and Rahimi’s recognition of “the presumptive lawfulness of these longstanding prohibitions,” quoting Heller.

“Longstanding?” Prior to 1961, no federal law would have prohibited someone in Melynda’s situation from possessing guns. As the first Range opinion noted, “modern laws have no longstanding analogue in or national history and tradition of firearm regulation.”

The 10th noted that the 4th, the 8th and the 11th Circuits also “have held that Rahimi doesn’t abrogate their earlier precedents upholding the constitutionality of § 922(g)(1).”

stvincentB250218Melynda is as sympathetic a felon-in-possession petitioner as anyone could find, maybe even more so than Bryan Range (who, after all, had one ticket for fishing without a license ticket in the 25 years since his food stamp conviction). If § 922(g)(1)‘s felon-in-possession prohibition does not violate the 2nd Amendment as applied to St. Melynda Vincent, the “presumptive lawfulness of these longstanding prohibitions” must be an irrebutable one.

Expect Melynda’s request for Supreme Court review to drop onto the SCOTUS docket before Memorial Day.

Vincent v. Bondi, Case No 21-4121, 2025 USAppLEXIS 3179 (10th Cir. Feb 11, 2025)

– Thomas L. Root

Dangerousness (and More) and 922(g) Constitutionality – Update for February 14, 2025

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3RD CIRCUIT’S TROUBLING SUGGESTIONS ON 922(g)(1)

Following its en banc Range v Attorney General II decision– that the 18 USC 922(g)(1) felon-in-possession (F-I-P) statute violates the 2nd Amendment where it prohibits a person with a single disqualifying but nonviolent fraud conviction 25 years before from owning a gun – the 3d Circuit earlier this week remanded a similar case for the trial court to inquire into whether the petitioner had a history of dangerousness.

dice161221Restaurateur George Pitsilides’ hobby is high-stakes poker, an avocation that extended into sports betting and hosting illegal poker tournaments. He was convicted 25 years ago of placing sports bets with a Pennsylvania bookie – law-breaking that must seem quaint to anyone watching Eli and Peyton Manning on the Fanduel ad during the Superbowl – conduct that disqualifies him from gun possession under the F-I-P statute.

In 2019, he sued the government for the right to own a gun, arguing among other things that the F-I-P statute violated the 2nd Amendment as applied to his situation. While the case was on appeal, the Supreme Court handed down decisions in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, cases “which effected a sea change in 2nd Amendment law,” as the 3rd Circuity put it, and required that a record be made of George’s “dangerousness.”

nickdanger220426The Circuit held that while Rahimi and Range II “did not purport to comprehensively define the metes and bounds of justifiable burdens on the 2nd Amendment right, they do, at a minimum, show that disarmament is justified as long as a felon continues to “present a special danger of misusing firearms… in other words, when he would likely pose a physical danger to others if armed.” The appellate court observed that

[a]s evidenced by our opinion in Range II, the determination that a felon does not currently present a special danger of misusing firearms may depend on more than just the nature of his prior felony…. [W]e agree with the 6th Circuit: Courts adjudicating as-applied challenges to 922(g)(1) must consider a convict’s entire criminal history and post-conviction conduct indicative of dangerousness, along with his predicate offense and the conduct giving rise to that conviction, to evaluate whether he meets the threshold for continued disarmament. As Range II illustrated, consideration of intervening conduct plays a crucial role in determining whether application of 922(g)(1) is constitutional under the 2nd Amendment… Indeed, such conduct may be highly probative of whether an individual likely poses an increased risk of “physical danger to others” if armed.

The Circuit ruled that “while bookmaking and pool selling offenses may not involve inherently violent conduct, they may nonetheless, depending on the context and circumstances, involve conduct that endangers the physical safety of others. That assessment necessarily requires individualized factual findings.”

So what is so troubling about this ruling? A couple of things. First, the Pitsilides court described the en banc Range II decision as turning on several factors, including having “lived an essentially law-abiding life since” the 25-year-old crime, had no history of violence, “had never knowingly violated 922(g)(1)’s prohibition while subject to it, posed no risk of danger to the public, and then filed a declaratory judgment action seeking authorization to bear arms prospectively.” The holding suggests that whether the F-I-P statute can constitutionally be applied to a defendant depends on him or her first seeking government permission (in the form of a declaratory ruling) before possessing a gun.

f**kdraft250214Imagine this standard being applied to free speech: A state law making the wearing clothing emblazoned with the phrase “f**ck the draft” a crime because of the exhibition of an obscene word would violate the 1st Amendment only if the wearer had not violated the unconstitutional statute to begin with and had won a judicial holding that the statute was unconstitutional before donning the offending shirt. (The shirt was the featured garb in Cohen v. California).

The second problem is with the squishiness of the term “dangerousness.” As Ohio State law professor Doug Berman aptly described the issue in his Sentencing Law and Policy blog earlier this week:

I have dozens of questions about how a “dangerousness” standard is to apply in the 2nd Amendment context, and I will flag just a few here.

For starters, there are many folks who were clearly dangerous, and were convicted of possibly dangerous crimes in their twenties, who thereafter mature and are no clearly longer dangerous years later. Do these folks have 2nd Amendment rights? More broadly, data show that women as a class are much less likely to commit violent crimes than men, so does this suggest women with criminal records are more likely to have 2nd Amendment rights than men because they are, generally speaking, less dangerous? And, procedurally, who has burden on the issue of “dangerousness” in civil and criminal cases? I assume Pitsilides will have to prove by a preponderance that he is not dangerous in this civil case that he brought, but does the Government now need to prove dangerousness beyond a reasonable doubt in every 18 USC 922(g) criminal prosecution?

The F-I-P “as applied” 2nd Amendment battle is just warming up.

Pitsilides v. Barr, Case No. 21-3320, 2025 U.S. App. LEXIS 3007 (3d Cir. Feb. 10, 2025)

Sentencing Policy and Law, Third Circuit panel states “Second Amendment’s touchstone is dangerousness” when remanding rights claim by person with multiple gambling-related offenses (February 12, 2025)

– Thomas L. Root

Trump Executive Order Hints At Felon-In-Possession About Face – Update for February 10, 2025

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PRESIDENT (AND FELON) TRUMP MAY CARE ABOUT § 922(g)(1)

OK, President Trump is a convicted felon. But millions of Americans know how easy it is to end up with that label.

Because Trump is now a guy surrounded by men and women with guns but not himself allowed to touch one due to 18 USC § 922(g)(1) – the felon-in-possession statute – I have been speculating for a few months about whether his personal stake in being able to again pack his personalized “Trump .45” Glock would cause him to do something about the issue of F-I-P constitutionality.

Trumpgun250113The 3d Circuit has underscored its view that § 922(g)(1) can be unconstitutional as applied to a nonviolent felon (Range v. Attorney General) and the 6th Circuit has hinted that it feels the same (United States v. Williams). The 9th Circuit said as much in United States v. Duarte, but that holding is on en banc review and probably won’t survive. Some other circuits have gone the other way.

After New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, there’s been little doubt that the “as applied” 2nd Amendment question that swirling around the F-I-P statute will reach the Supreme Court sooner rather than later. Likewise, the Dept of Justice’s intractable opposition to any loosening of gun restrictions has been a feature of every court challenge of § 922(g), not just F-I-P but also drug user in possession, person-under-indictment in possession and domestic abuser-in-possession.

trumpglock45250210Last Friday, Trump issued an executive order that strongly hints that the DOJ will soon be changing its views. The EO directed Pam Bondi, the new Attorney General, to “examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the 2nd Amendment rights of our citizens and present a proposed plan of action to the President… to protect the 2nd Amendment rights of all Americans.” The EO specifically orders her to review “[t]he positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their 2nd Amendment rights.”

This does not mean that the DOJ will drop its opposition to any or all of the varied “prohibited person in possession” issue raised by § 922(g), even whether F-I-P is constitutional as applied to a nonviolent defendant whose convictions are a quarter century old like Bryan Range. But it is a clear signal that the next SCOTUS § 922(g) case may feature a much kinder, gentler DOJ that we’ve seen so far.

White House, Executive Order: Protecting Second Amendment Rights (February 7, 2024)

Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024)

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

United States v. Duarte, 108 F.4th 786 (9th Cir. 2024)

– Thomas L. Root

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

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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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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

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

Felon-in-Possession Constitutionality Decision May Be Within ‘Range’ – Update for June 28, 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.

GOVERNMENT WANTS DEFINITIVE 2ND AMENDMENT FELON-IN-POSSESSION RULING NOW

gunknot181009The pundits sprouted like mushrooms after a rain shower this past week, making all manner of interpretations and predictions on the future of the 2nd Amendment in the wake of the Supreme Court’s United States v. Rahimi decision.

“The Court has endorsed taking guns from convicted felons, a category that now includes Donald Trump,” wrongly declared the New Yorker.

“One of the first things that’s going to happen is that the Supreme Court is going to take up a bunch of lower-court decisions on the 2nd Amendment, vacate them, send them back down for reconsideration in light of Rahimi. So we’re about to get a spate of second bites at the apple from the lower courts trying to apply this,” predicted Slate.

“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… 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,” UCLA law prof Eugene Volokh wrote in Reason.

Ohio State University law professor Doug Berman asked whether, in Rahimi’s wake, Donald Trump (a convicted felon subject to 18 USC 922(g)(1)) or Hunter Biden (a drug abuser when he bought his gun subject to 18 USC 922(g)(3)) can constitutionally be barred from firearm possession:

I do not believe Donald Trump or Hunter Biden “poses a clear threat of physical violence to another,” and § 922(g)(1) notably serves to permanently disarm anyone with a felony conviction. Further, the federal government has, since Bruen, generally argued for the constitutionality of 922(g)(1) based on the notion that only “responsible” individuals have 2nd Amendment rights. The Rahimi court directly and expressly rejected that notion. But still, as we saw before in 2nd Amendment cases like Heller and McDonald, the Court in Rahimi seems to still embrace dicta that can be read to suggest that the very broad criminal prohibition set forth in 18 USC § 922(g)(1) is still constitutional.

William & Mary law professor Kami Chavis wrote, “Although the court upheld Section 922(g)(8)… barriers to other attempts to implement modern gun regulations likely remain.”

iloveguns221018After the pundits all pontificated, the Solicitor General checked in last Monday, filing a surprising supplemental brief in Garland v. Range that asked the Court to quickly grant cert in a “range” of felon-in-possession cases to clarify who it can disarm under § 922(g)(1) consistent with the 2nd Amendment.

Specifically, SG Elizabeth Prelogar has asked SCOTUS to review some or all five separate pending cases dealing with the federal gun ban for felonies of varying severity. She argued that “we believe [the Court] should grant plenary review to resolve Section 922(g)(1)‘s constitutionality… Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict.”

The government argues that the conflict is important. Out of about 64,000 criminal cases reported to the Sentencing Commission in Fiscal Year 2022, more than 7,600 were § 922(g)(1) cases, 12% of all federal criminal cases.

It seems that just about everyone expected a spate of GVR orders on pending petitions for cert. (A GVR is a single-sentence order in which the Supreme Court grants certiorari, vacates the appellate court decision, and remands the case for further consideration in light of a new SCOTUS decision, in this case, Rahimi).

The government’s supplemental brief argues that “a GVR order is inappropriate if the delay and further cost entailed in a remand are not justified by the potential benefits of further consideration by the lower court. In our view, that is the case here. Section 922(g)(1)’s constitutionality has divided courts of appeals and district courts. Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict. And given the frequency with which the government brings criminal cases under Section 922(g)(1), the substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation. Under these circumstances, the better course would be to grant plenary review now.”

gun160711The government recommends that SCOTUS grant cert on multiple cases to be heard in one ultimate felon-in-possession case, including Doss v. United States (whether applying felon-in-possession is constitutional where the petitioner has “a lengthy criminal record” that “includes over 20 convictions, many of them violent”) and Jackson v. United States (petitioner has “previous felony convictions for non-violent drug crimes”). The government also asked that the Court add to the mix either Range v. Attorney General (3rd Circuit held 922(g)(1) was unconstitutional as applied to a man convicted of food-stamp fraud from 25 years before) or Vincent v. United States (10th Circuit held 922(g)(1) was constitutional as applied to addicted woman convicted of bank fraud 15 years before but now drug-free and running large charity).

As for Range and Vincent, the Government argues that “[g]ranting review in one of those cases would enable this Court to consider Section 922(g)(1)’s application to non-drug, non-violent crimes.”

A statement in the supplemental brief suggests the Government may have concluded that Rahimi means that it cannot win arguing that 922(g)(1) is constitutional in all circumstances. SG Preloger says that granting “review in cases involving different types of predicate felonies” would “enable the Court to consider Section 922(g)(1)’s constitutionality across a range of circumstances that are fully representative of the statute’s applications.”

guns170111If the government were convinced that it can defend 922(g)(1) in all circumstances, it would be happy with certiorari in either Range or Vincent, because winning on either of those cases would establish that 922(g)(1) is constitutional and thus immune to an “as applied” challenge. The fact that the government suggests that the Court hear swath of cases with defendants ranging from saint to sinner implies that the SG has conceded that the “as applied” constitutional line is going to fall somewhere in between Mr. Doss and Ms. Vincent.

Such a conclusion is almost foreordained by the Rahimi court’s warning that its Rahimi ruling is narrow:

Our resolution of Mr. Rahimi’s facial challenge to § 922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in particular circumstances… We do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety… We do not resolve whether the government may disarm an individual permanently… We do not determine whether § 922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense… Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’”

The Court will accept the SG’s invitation, if at all, early next week (although the Solicitor General has substantial influence with the Court). If the Supremes do take the cases, it will move up by at least a year the time we’ll have a definitive ruling on the constitutional limits of the felon-in-possession statute.

United States v. Rahimi, Case No 22-915, 2024 U.S. LEXIS 2714 (June 21, 2024)

United States v. Doss, Case No. 22-3662, 2023 U.S. App. LEXIS 31748 (8th Cir. Dec. 1, 2023)

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

Vincent v. Garland, 80 F.4th 1197 (10th Cir. 2023)

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

Supplemental Brief, Garland v. Range, Case No. 23-374

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

New Yorker, The Supreme Court Steps Back From the Brink on Guns (June 22, 2024)

Slate, John Roberts Tried to Clean Up Clarence Thomas’ Mess. He May Have Invited More Chaos (June 24, 2024)

Reason, Some Takeaways from Today’s Rahimi 2nd Amendment Opinions (June 21, 2024)

Sentencing Law and Policy, After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? (June 24, 2024)

Bloomberg Law, Narrow Gun Opinion Says Law Not in ‘Amber,’ But History Rules (June 25, 2024)

The Reload, DOJ Asks Supreme Court to Resolve Question of Gun Rights for Felons (June 25, 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