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Gunning for Bruen – Update for November 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.

RAHIMI ORAL ARGUMENT NEXT WEEK IS HIGH STAKES FOR SECOND AMENDMENT

scotus161130On Tuesday, the Supreme Court will hear oral arguments in United States v. Rahimi, a case that will determine the constitutionality of 18 USC § 922(g)(8), the subsection of the federal firearms possession statute that bars people subject to domestic protection orders from having guns or ammo. Rahimi may well do more than that, addressing the constitutionality of all of 922(g) – including possession of guns by felons.

The Supreme Court’s 2022 New York State Rifle & Pistol Association v. Bruen adopted a new originalist 2nd Amendment standard:

We hold that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. 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.

Bruen superseded the Court’s long-standing practice of allowing the government to weigh its interest in public safety against the possibility of imposing a limitation on 2nd Amendment rights.

Since Bruen, several 922(g)-based restrictions have been declared unconstitutional. Possession of guns by people who are subject to domestic protection orders, who use controlled substances – illegal under 922(g)(3), and who have been convicted of nonviolent criminal offenses, illegal under 922(g)(1), have been held to be unconstitutional under Bruen. The government has sought certiorari on all of these decisions, suggesting to the Supreme Court that a Rahimi decision can clean them all up (and in the government’s favor).

sexualassault211014Social and public health advocates argue in essence that “validating the federal law prohibiting persons subject to domestic violence protective orders from gun possession will literally mean the difference between life or death for many victims of abuse, their family, friends, law enforcement, and the broader community,” as the Bloomberg School of Public Health puts it.

Rahimi provides the Supreme Court with an opportunity to clarify how lower courts should apply the new framework laid out in Bruen. This will significantly impact the continued viability of current gun laws and the ability of legislators to address what the Bloomberg School calls “the ongoing gun violence epidemic.”

But others suggest that 922(g)(8) looks “more like a political performance than a serious effort to reduce abusive behavior.” Writing in Law & Liberty, George Mason University laws professor Nelson Lund argues that nevertheless, “the government’s brief [in Rahimi] may look like little more than a Hail Mary pass aimed at persuading the Justices to revise or deceptively “clarify” the novel Bruen test. This gambit, however, could very well succeed. The Bruen holding has its roots in a dissenting opinion written by then-Judge Kavanaugh before he was promoted to the Supreme Court. His opinion was exposed to serious objections arising largely from the paucity of historical evidence that could support a viable history-and-tradition test. Bruen suffers from the same weakness, and it was clear from the start that the Court would find itself driven toward reliance on means-end analysis, although not necessarily the very deferential form that Bruen rejected.”

Mr. Rahimi fired off a few rounds at a fast-food joint when his friend's credit card was declined.
Mr. Rahimi fired off a few rounds at a fast-food joint when his friend’s credit card was declined.

Robert Leider, an assistant professor at George Mason University’s Antonin Scalia Law School in Arlington, Virginia, said at a Federalist Society forum in September that “the real legal question that everyone is interested in with Rahimi is to see how the court clarifies and applies the text, history and tradition test that it announced two terms ago in Bruen. Unquestionably, the government sought review in this case to water down the test.”

Solicitor General Elizabeth B. Prelogar took steps to expedite the review of Rahimi, citing the “substantial disruption” that invalidation of the domestic violence gun restriction would create. Meanwhile, as the American Bar Association Journal put it, Prof. Leider said the Solicitor General “slow-walked [the] cert petition in another gun case, in which the full U.S. Court of Appeals for the 3rd Circuit in June struck down the so-called felon-in-possession statute, barring those sentenced to prison for more than one year from possessing a firearm.”

That 3rd Circuit case, Range v. Atty General, involves a man convicted of food stamp fraud 25 years before who was prevented from buying a gun.

“Mr. Rahimi is the poster child for irresponsible gun possession,” Leider said. “I think the government wanted this case and not the Range welfare fraud case because this case is much easier on the judgment line.”

He’s right that Rahimi is a tough case for those hoping that Bruen may ultimately limit the proscription on nonviolent felons owning guns (such as the case in the 3rd Circuit en banc decision in Range v. Attorney General. The evidence suggests that the presence of firearms in abusive relationships increases the risk of injury and death substantially.

After seeking cert on the Range decision, the government suggested the Court sit on the petition until a decision is handed down in Rahimi.

United States v. Rahimi, Case No. 22-915 (oral argument November 7, 2023)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022)

Johns Hopkins University, Bloomberg School of Public Health, Questions and Answers on U.S. v. Rahimi, the Major Gun Case Before the Supreme Court During its 2023–2024 Term (October 10, 2023)

American Bar Association Journal, Supreme Court takes on first major gun case since landmark ruling last year softened regulations (November 2, 2023)

Law & Liberty, Domestic Violence and the Second Amendment (November 1, 2023)

USA Today, Domestic violence abuse victims need more protections — not less stringent gun regulations (November 2, 2023)

– Thomas L. Root

Gunfight Brewing at the SCOTUS Corral – Update for October 13, 2023

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RAHIMI TEEING UP TO BE GUN POLICY DEBATE

United States v. Rahimi, the fast-track Supreme Court review of a 5th Circuit gun case, passed a filing deadline last week with no fewer than 60 separate amicus briefs on both sides of the debate.

lotsofguns231013In Rahimi, the 5th declared the 18 USC 922(g)(8) prohibition on people with domestic protection orders possessing guns to be unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen.

Dozens of the briefs argue that the Circuit was right. One such example was an amicus filing by the California Public Defenders Association:

The State of California aggressively criminalizes the possession of firearms. We have seen that this disproportionately affects people of color, particularly Black people. Since New York State Rifle & Pistol Association, Inc. v. Bruen, we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment. And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.” We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.

As to the particular statute at issue in this case, 18 USC § 922(g)(8), we acknowledge the need to protect people from domestic violence. Many of our clients are themselves victims of domestic violence. But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.

Rahimi is set for oral argument on November 7, 2023.

The Department of Justice’s sense that Rahimi may be its decisive battle on the Second Amendment was reflected in last week’s filing of a petition for writ of certiorari in Range v. Attorney General. The Solicitor General wrote:

The decision below — which held an Act of Congress unconstitutional, conflicts with decisions of other courts of appeals, and has important practical consequences— would ordinarily warrant this Court’s review. See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294, 2298 (2019) (noting that this Court’s “usual” approach is to grant review “when a lower court has invalidated a federal statute”). But the Court has already granted review in Rahimi to decide the constitutionality of 18 USC § 922(g)(8), the statute that disarms individuals who are subject to domestic-violence protective orders… The Court should therefore hold this petition for a writ of certiorari until it decides Rahimi… This case substantially overlaps with Rahimi. Both cases concern Congress’s authority to prohibit a category of individuals from possessing firearms. In each case, the government argues that the Second Amendment allows Congress to disarm individuals who are not law-abiding, responsible citizens.

2dAmendment231013This is palpable nonsense. Even if a low-grade conviction 25 years before (Range was convicted of a misdemeanor, but one carrying a maximum sentence of more than a year in prison, thus disqualifying him from having a gun under 922(g)(1)) can bar firearms possession consistent with the 2nd Amendment, Rahimi has little to do with barring someone who is not a “law-abiding, responsible citizen[]” from possessing guns or ammo. For example, in Ohio the testimony of the victim alone is enough to meet the simple “preponderance of the evidence” standard needed for a civil protection order. While a lesser standard such as this makes perfect sense where an order is intended to protect life and safety, to claim that the words on one aggrieved domestic partner establishes that someone is not a “law-abiding, responsible citizen[]” who can be stripped of 2nd Amendment rights demonstrates the weakness of the government’s “take-no-prisoners” approach to gun rights litigation.

In that vein, I note that last week the government also filed a petition for writ of certiorari in United States v. Daniels, a 5th Circuit decision from last August holding that 18 USC 922(g)(3) – which prohibits users of unlawful controlled substances from gun possession – was unconstitutional. Employing the same argument (indeed, the same language) it used in the Range petition, the government asked that Daniels be held pending the outcome of Rahimi.

United States v. Rahimi, Case No. 22-915

Amicus Brief of Alameda County Defenders Assn and California Public Defenders Assn (filed October 3, 2023)

United States v. Range, Case No. 23-374 (Petition for writ of certiorari filed October 5, 2023)

United States v. Daniels, Case No. 23-376 (Petition for writ of certiorari filed October 5, 2023)

– Thomas L. Root

Showdown at 922(g) Corral Becomes All But Certain – Update for September 19, 2023

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10TH CIRCUIT SAYS FELON-IN-POSSESSION BAN IS CONSTITUTIONAL

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen has spawned a tsunami of 2nd Amendment attacks on 18 USC § 922(g), the subsection of the law that prohibits various classes of people (and we’re including you, drug-using Hunter Biden) from possessing guns or ammo.

gunfreezone170330Most notably, the 3rd Circuit ruled in Range v. Attorney General, an en banc decision last June, that the § 922(g)(1) felon-in-possession ban is unconstitutional as it applies to people convicted of nonviolent felonies (again –  if the tax stuff goes badly for you – Hunter Biden, we’d be talking about you again).

Other subsections of § 922(g) are faring no better.  A month ago, the 5th Circuit held in United States v. Daniels that § 922(g)(3)‘s ban on drug abusers possessing guns was unconstitutional.  That Circuit’s United States v. Rahimi decision had already held that someone subject to a civil protection order could not be prohibited from possessing a gun. The Supreme Court has granted certiorari in that case.

gunfight230919Range conflicts with United States v. Jackson, an 8th Circuit ruling from a week before Range was issued that holds that § 922(g)(1)‘s felon-in-possession ban remained a lawful limitation on gun possession even after Bruen. Last week, in Vincent v. Garland, a case with facts a lot those in like Range, the 10th Circuit agreed with Jackson’s reasoning. The odds of a showdown at the Supreme Court – perhaps a sweeping decision that is the firearms equivalent of the evisceration of Roe v. Wade – are increasing.

gun160718Melynda Vincent, addicted to meth at the time, was convicted of bank fraud 15 years ago. Now, with time served and her drug problems behind her, Melinda wants to own a gun again. She argued that the 10th Circuit’s 2009 precedent, United States v. McCane – that held § 922(g)(1) to be constitutional – was no longer good law after Bruen.

The 10th rejected her argument. The appellate court noted that McCane relied “solely” on District of Columbia v. Heller, a 2008 case in which the Supreme Court appeared to recognize that § 922(g)(1) was constitutional.

Though Bruen created a new test for determining the scope of the 2nd Amendment,” the 10th observed, “the Supreme Court didn’t appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons… First, six of the nine Bruen Justices pointed out that they were not casting any doubt on the [felon prohibition] language in Heller. Second, Bruen apparently approved the constitutionality of regulations requiring criminal background checks before applicants could get gun permits. In Bruen, the Court struck down state regulations that had required the showing of a special need before someone could get a license to carry a gun. But the Court added that it wasn’t questioning the constitutionality of “shall-issue” licensing regimes. These regimes don’t require a showing of special need, but they do ‘often require applicants to undergo a background check’ to ensure that the applicant is a ‘law-abiding, responsible citizen.’

The Circuit said that in preserving “shall-issue” background checks, the Supremes “arguably implied that it was constitutional to deny firearm licenses to individuals with felony convictions. Bruen’s language thus could support an inference that the 2nd Amendment doesn’t entitle felons to possess firearms.”

circuitsplit220516The government is planning to take Range to the Supreme Court by an October 5th deadline. This 10th Circuit holding that “Bruen did not indisputably and pellucidly abrogate our precedential opinion in McCane” makes the circuit split more pronounced than before, making a grant of certiorari on Range likelier than ever.

Vincent v. Garland, Case No 21-4121, 2023 USApp LEXIS 24554 (10th Cir. Sep. 15, 2023)

New York State Rifle & Pistol Association v. Bruen, 597 U.S. —, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (June 23, 2022)

United States v. McCane, 573 F.3d 1037 (10th Cir. 2009)

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

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

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

– Thomas L. Root

The Guns of August – Update for August 11, 2023

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“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

Another Circuit to Enter the Post-Bruen Fray – Update for June 29, 2023

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7TH REMANDS 2ND AMENDMENT GUN POSSESSION CASE IN WAKE OF BRUEN

iloveguns221018Patrick Atkinson was convicted 25 years ago of federal mail fraud. After maintaining an otherwise clean record for a generation, he wanted a gun. But because 18 USC § 922(g)(1) bars gun possession for anyone convicted of “a crime punishable by imprisonment for a term exceeding one year,” he could not buy one. He sued seeking to have § 922(g)(1) declared unconstitutional as applied to him.

Relying on 7th Circuit precedent from prior to last summer’s New York State Rifle & Pistol Ass’n v. Bruen decision, the district court dismissed Pat’s case. He appealed.

Last week, the 7th Circuit sent it back for consideration in light of Bruen’s holding.

“Bruen announced a new framework for analyzing restrictions on the possession of firearms,” the Circuit ruled. “The new approach anchors itself exclusively in the 2nd Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively proving that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms… The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen. In these circumstances, we think the best course is to remand to allow the district court to undertake the Bruen analysis in the first instance.”

gunpermit230629Two recent decisions have considered the constitutionality of the felon-in-possession statute. On June 8, the 3rd Circuit held the statute unconstitutional in Range v. Attorney General. Six days before that, the 8th Circuit ruled the opposite way in United States v. Jackson.

Atkinson v. Garland, Case No. 22-1557, 2023 U.S. App, LEXIS 15357 (7th Cir., June 20, 2023)

– Thomas L. Root

3rd Circuit Sharply Limits § 922(g)(1) ‘Felon-In-Possession’ – Update for June 8, 2023

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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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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