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

922(g) FELON IN POSSESSION CHALLENGES EXPLODE AFTER BRUEN

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

Ninth Circuit Says 922(g)(1) Unconstitutional for Nonviolent Felons – Update for May 13, 2024

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9th CIRCUIT HOLDS NONVIOLENT FELONS MAY POSSESS GUNS

A 9th Circuit panel held 2-1 last week that a defendant with five prior nonviolent felony convictions was not subject to 18 USC § 922(g)(1)’s prohibition on possessing guns or ammo under the Second Amendment.

In what may be the biggest Second Amendment ruling since the 3rd Circuit’s Range v. Attorney General decision last June, the 9th found that the Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision of 2022 means that § 922(g)(1)’s application to people with nonviolent felony convictions violates the Constitution.

throwgun240513Steve Duarte had five prior felony convictions for fleeing and eluding, possession of a controlled substance, and California’s own  felon-in-possession law when the police pulled him over for erratic driving. Naturally, Steve fled (it had worked so well for him before), and just as naturally, the police caught him. But before he was finally pulled over, Steve tossed a handgun from the car window.

The police recovered both the gun and Steve. The Feds picked up the case, with Steve being charged federally with § 922(g)(1) felon-in-possession. 

Steve went to trial and lost. But after Bruen was decided while his appeal was pending, Steve argued that his conviction was unconstitutional. He maintained that under Bruen, § 922(g)(1) “violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.”

The 9th Circuit rejected its 2010 United States v. Vongxay holding that the Second Amendment doesn’t invalidate laws prohibiting convicted felons from possessing guns: “Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history….”

kidgun240125Applying Bruen, the 9th held that the handgun was an “arm” and Steve’s reason for carrying it–self-defense–“falls within the Second Amendment’s plain language.” The Circuit rejected the Government’s contention that the Second Amendment’s term “the people” excluded convicted felons “because they are not members of the ‘virtuous’ citizenry… Bruen and District of Columbia v. Heller foreclose that argument because both recognized the ‘strong presumption’ that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to ‘all Americans,’ not an ‘unspecified subset’.”

Once the right is established, Bruen holds, the Government must prove that § 922(g)(1)’s prohibition as applied to the defendant in question “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. The Government could not show that disarming nonviolent felons had a “well-established and representative historical analogue” that “imposed a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s “sweeping, no-exception, lifelong ban.”

“We do not base our decision on the notion that felons should not be prohibited from possessing firearms,” the decision noted. “As a matter of policy, 922(g)(1) may make a great deal of sense. But ‘the very enumeration of the Second Amendment right’ in our Constitution ‘takes out of our hands… the power to decide’ for which Americans ‘that right is really worth insisting upon.”

The impact of Duarte may be attenuated, however, because the Supreme Court is expected to issue its decision in United States v. Rahimi sometime in the next six weeks. Rahimi, which focuses on whether §922(g)(8)’s prohibition on people subject to a domestic relations protection order possessing guns is constitutional after Bruen, is widely expected to further define the Second Amendment limits of § 922(g).

gunfreezone170330Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman observed that “[t]he location and timing of this ruling is almost as interesting as its substance. Many hundreds of § 922(g)(1) cases are prosecuted in this big circuit each year, so the echo effects of this ruling could prove profound (though I would guess not that many involve persons with only nonviolent priors). And, we are likely only weeks away from the Supreme Court finally handing down an opinion in the Rahimi case to address the application of Bruen to a different section of § 922(g).

Berman observes:

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amendment test is to be applied to broad federal criminal gun control laws. I would expect the coming Rahimi opinion will lead to the 9th Circuit reviewing this important Duarte ruling in some way, though whether that is in the form of en banc review or panel reconsideration might turn on what Rahimi actually says.

United States v. Duarte, Case No 22-50048, 2024 U.S. App. LEXIS 11323 (9th Cir, May 9, 2024)

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

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

Sentencing Law and Policy, Split 9th Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen (May 10, 2024)

– Thomas L. Root

Rahimi Could Be Watershed for § 922(g) Felon In Possession – Update for April 15, 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.

CHRISTMAS SEASON AT THE SUPREME COURT


scotusxmas240415We’re entering what I always think of as Christmas season at the Supreme Court, the final 10 weeks of what is anachronistically called “October Term 2023.”  With 75% of the Court’s term done, only about 24% of its opinions have been issued. That’s common: there’s always a flurry of decisions issued in late April, May and June, with the most controversial decisions saved for last.

The most consequential criminal case yet to be decided, I believe, is United States v. Rahimi. In 2022, the Supreme Court in N.Y. State Rifle & Pistol Assn. v. Bruen – relying on the Second Amendment – invalidated a New York law that forbade individuals to carry a gun in public unless they could persuade a government official that they faced some extraordinary threat to their personal safety. Applying “originalism,” the judicial philosophy that legal text should be interpreted based on the original understanding at the time of adoption, SCOTUS reasoned that a right reserved to a tiny subset of the population (the right to carry a gun) was an encroachment on a “right of the people” that the Constitution says “shall not be infringed.”

But Bruen reaches further, holding that when defending a law that deprives an individual of the freedom to keep or bear arms, the government must show that the law “is consistent with the nation’s historical tradition of firearm regulation.” The absence of a historical regulation “distinctly similar” to a modern gun-control law is evidence of the modern regulation’s unconstitutionality.

Laws banning all felons from gun possession were not adopted until the 1960s.

In Rahimi, the 5th Circuit applied the Supreme Court’s Bruen decision, holding that 18 USC § 922(g)(8) – which prohibited people subject to domestic violence protection orders from possessing guns – violated the Second Amendment because, at the time the Second Amendment was adopted, no law keeping people subject to a domestic violence protection order was on anyone’s books.

whataburger230703Writing last week in the New York Times, George Mason University law professor Nelson Lund said, “Under Bruen’s originalist test, Rahimi should be an easy case. The government has not informed the Supreme Court of a single pre-20th-century law that punished American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes. Not one.”

The problem is that the subject of the Rahimi case, Zackey Rahimi, is an awful defendant. His ex-girlfriend obtained a domestic violence protection order against him on the ground that he had assaulted her, and he has been charged with several crimes involving the misuse of firearms, including shooting up a What-a-Burger when his friend’s credit card was declined.

“If the court pretends that a historical tradition of such laws existed,” Lund wrote, “it will not be faithful either to Bruen’s holding or to the court’s repeated insistence that the right to keep and bear arms is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”

But following the Bruen precedent could be tough on the Justices, because the outcry of letting the Zack Rahimis of the nation keep their guns will be fierce. Still, Rahimi may have a silver lining for the § 922(g)(1) felon-in-possession statute. If Zack wins, that just about guarantees that Garland v. Range – in which the 3rd Circuit ruled that Bruen means that a guy convicted 25 years before of a minor food stamp fraud is allowed to possess a gun – will be upheld. If Zack loses, I suspect SCOTUS will write some “dangerousness” exception into the Bruen standard. Even if that happens, many  § 922(g)(1) defendants will easily jump that hurdle.

toomuchguns240416Writing in his Sentencing Law and Policy blog last week, Ohio State University law prof Doug Berman said, “In the votes and voices of a number of Justices (and others), I sometimes notice that affinity for originalism starts running out of steam when the outcomes start running in concerning directions. Rahimi may prove to be another data point on that front in the coming months.”

United States v. Rahimi, Case No. 22-915 (Supreme Ct, argued November 7, 2023)

New York Times, The Fidelity of ‘Originalist’ Justices Is About to Be Tested (April 9, 2023)

Sentencing Law & Policy, Is Rahimi an “easy case” for any true originalist to rule for the criminal defendant and against the prosecution? (April 10, 2024)

– Thomas L. Root

Two District Courts Find Felon-in-Possession Unconstitutional – Update for November 20, 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.

RUMBLINGS OF 922(g) UNCONSTITUTIONALITY

guns200304Even while the Supreme Court ponders Rahimi – the case that questions whether prohibiting people subject to domestic protection orders from having guns – lower courts are expressing doubts about whether 18 USC § 922(g), the statute prohibiting felons from possessing firearms, remains constitutional after the Supreme Court’s 2022 New York State Rifle & Pistol Assn v. Bruen decision.

The leading decision against unconstitutionality, of course, is Range v. Atty General, a 3rd Circuit en banc decision last June. Range held that § 922(g)(1) was unconstitutional as applied to Bryan Range, who had been convicted of a welfare fraud offense 25 years ago. The government has filed for Supreme Court review in Range and asked SCOTUS to sit on the petition until it decides Rahimi next spring.

At the same time, the 8th Circuit went the other way in United States v. Jackson.

Down in the trenches, however, two federal district courts have held in the last several weeks that the felon-in-possession statute is unconstitutional.

In Chicago, Glen Prince – who the Government said had been robbing people at gunpoint on commuter trains – was arrested late one night while standing on a train platform with a gun. Ten days ago, a district court threw out his pending 18 USC § 922(g)(1) indictment – which alleged that Glen was Armed Career Criminal Act-eligible – as unconstitutional under Bruen.

The court ruled that Bruen did not hold that the Second Amendment categorically protects only law-abiding citizens, despite repeated use of such qualified language as “law-abiding citizens” in the decision. The district judge concluded instead that “the government has not met its burden to prove that felons are excluded from ‘the people’ whose firearm possession is presumptively protected by the plain text of the Second Amendment.

gun160711Because the right of a person with a prior felony conviction to possess a gun is presumptively protected by that Amendment, the court said, Bruen gives the government the authority to prohibit possession only when it can “demonstrate that the statute is part of this nation’s historical tradition of firearm regulation… Where a ‘distinctly modern’ regulation is at issue, the government must offer a historical regulation that is ‘relevantly similar’ and… must determine whether historical regulations ‘impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified’ as the burden imposed by § 922(g)(1).”

The “first federal statute disqualifying certain violent felons from firearm possession was not enacted until… 1938,” the court noted, finding “no evidence of any law categorically restricting individuals with felony convictions from possessing firearms at the time of the Founding or ratification of the Second or 14th Amendments.” The district court concluded that § 922(g)(1) “imposes a far greater burden on the right to keep and bear arms than the historical categorical exclusions from the people’s Second Amendment right. The government has not demonstrated why the modern ubiquity of gun violence, and the heightened lethality of today’s firearm technology compared to the Founding, justify a different result.”

Glen’s ACCA count was dismissed.

Meanwhile, in the Eastern District of Pennsylvania, a district court declared § 922(g) unconstitutional as applied to a man convicted of a DUI two decades ago.

Ed Williams had a prior drunk-driving conviction when he was arrested for DUI in Philadelphia 20 years ago. The prior conviction, combined with the fact that his blood alcohol concentration was three times the legal limit, made the second offense “a 1st-degree misdemeanor punishable by up to 5 years in prison.” That was enough to trigger § 922(g)(1), which prohibits guns to anyone convicted of a crime carrying a maximum sentence of over a year in prison (not just felonies).

gunb160201The district court ruled that “[p]rohibiting [Ed]’s possession of a firearm due to his DUI conviction is a violation of his Second Amendment rights as it is inconsistent with the United States’ tradition of firearms regulation. The Constitution ‘presumptively protects’ individual conduct plainly covered by the text of the Second Amendment, which includes an individual’s right to keep and bear arms for self-defense… Protected individuals presumptively include all Americans… The Supreme Court has held that an individual’s conduct may fall outside of Second Amendment protection ‘[o]nly if a firearm regulation is consistent with this Nation’s historical tradition…’”

The district court relied on the fact that the 3rd Circuit had “determined that Bryan Range, who had a qualifying conviction under Section 922(g)(1) for making a false statement to obtain food stamps and who wished to possess firearms to hunt and to defend himself, could not be denied his 2nd Amendment right to possess a firearm due to that conviction.” The judge held that “the narrow analysis in Range also applies to the Plaintiff here.”

United States v. Prince, Case No. 22-CR-240, 2023 U.S. Dist. LEXIS 196874 (N.D. Ill., November 2, 2023)

Williams v. Garland, Case No. 17-cv-2641, 2023 U.S. Dist. LEXIS 203304 (E.D.Pa., November 14, 2023)

WLS-TV, Chicago judge rules statute barring felons from having guns unconstitutional under Bruen decision (November 16, 2023)

Reason, He Lost His Gun Rights Because of a Misdemeanor DUI Conviction. That Was Unconstitutional, a Judge Says (November 15, 2023)

– Thomas L. Root

Supreme Court May Walk Back Bruen, But Constitutionality of 922(g)(1) Still Up In The Air – Update for November 13, 2023

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HARD CASES MAKE BAD LAW

The Supreme Court appears poised to refine the New York State Rifle & Pistol Association v. Bruen Second Amendment test for the constitutionality of gun laws, adding a “dangerousness” element that – surprisingly enough – may help a lot of people convicted of felon-in-possession crimes.

SCOTUS heard argument last week in United States v. Rahimi, the case that challenged whether subsection (8) of 18 USC 922(g) – that bans people subject to domestic protection orders from possessing guns – is constitutional under the Second Amendment.

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.

Defendant Zackey Rahimi was a bad actor. While under a domestic protection order for stalking an ex-girlfriend, he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even loosing off five rounds into the air when a credit card was declined at a Whataburger. In short, he was the government’s dream defendant for its position that Uncle Sam has the right to keep some people away from guns.

And the government needed a dream defendant. The Supreme Court’s 2022 Bruen decision adopted a new standard, specifically that when the Second Amendment covers one’s conduct (such as possessing a firearm), the government can limit that conduct only by showing “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 Second Amendment’s “unqualified command.” Bruen thus 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 Second Amendment rights.

Last week’s argument suggests the Court may write some “public safety” back into the Bruen standard. The government argued that the “destabilizing consequences” of the 5th Circuit’s Rahimi ruling require the Court to uphold 18 USC § 922(g)(8) based on the general tradition of Congress taking guns from people who are not responsible, law-abiding citizens – “for example, people who had been loyal to the British government during the Revolutionary War, felons, and drug addicts,” as Amy Howe put it in SCOTUSBlog.

lawabiding231113But the justices puzzled over what “responsible” or “law-abiding” citizen meant exactly. “Responsibility,” Chief Justice John Roberts told the government, is “a very broad concept.” Justice Amy Coney Barrett agreed that domestic violence is dangerous. But in more marginal cases, she asked, how does the government show that other kinds of behavior are dangerous?

The government argued that “responsibility” is “intrinsically tied to the danger you would present if you have access to firearms.” The government told the Court that it can disarm “dangerous individuals” without violating the  Second Amendment.

Roberts clearly thought Zack had no business possessing a gun: “You don’t have any doubt that your client’s a dangerous person, do you?” he asked Zack’s counsel. Justice Samuel Alito wondered whether Rahimi’s position was that “except for someone who has been convicted of a felony, a person may not be prohibited from possessing a firearm in his home?” Justice Elena Kagan interpreted Rahimi’s position as being that the government had to show a historical regulation “essentially target[ed] the same kind of conduct as the regulation under review” to be constitutional.

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

There seems to be a majority of Justices (and perhaps even all the Justices) who are prepared to rework the Bruen originalist approach to the Second Amendment to uphold the federal criminal firearm prohibition in Rahimi. But I… was especially struck by the claim by Rahimi’s lawyer that there were no complete criminal bans on the possession of guns by certain people until 1968. If originalism as a mode of constitutional interpretation really cared about history, that would seem to be a quite significant bit of history for resolving this case.

nickdanger220426The Rahimi issue is whether people subject to domestic protection orders are dangerous. But if SCOTUS focuses on “dangerousness,” that suggests that maybe people disqualified from owning firearms because of prior convictions – like Bryan Range in the 3rd Circuit case now awaiting a decision on certiorari – convicted of nonviolent crimes may still benefit from Bruen.

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

SCOTUSBlog, Justices appear wary of striking down domestic-violence gun restriction (November 7, 2023)

Sentencing Law and Policy, Some press pieces reviewing SCOTUS argument in Rahimi Second Amendment case (November 7, 2023)

Reason, Only ‘Dangerous Individuals’ Lose Their Gun Rights Because of Protective Orders, the Government Says (November 8, 2023)

– Thomas L. Root

Gunning for Bruen – Update for November 3, 2023

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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

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

Maybe Guns and Drugs Do Mix – Update for April 14, 2023

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GUNS, DRUGS AND ROCK AND ROLL

Last summer’s Supreme Court decision in New York State Rifle & Pistol Ass’n v. Bruen continues to reverberate.

Last week, a second federal district court ruled that 18 USC § 922(g)(3) – which bans people who consume unlawful controlled substances from possessing guns or ammo – is unconstitutional. The court held that the same legal principle also applies to the sale and transfer of guns to such people.

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)

Bruen held that a court must “determine whether ‘the Second Amendment’s plain text covers an individual’s conduct,’” If it does, Constitution “presumptively protects that conduct.” Then, in order to regulate the conduct, the Government “must justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation,” pointing to “historical precedent from before, during, and even after the founding” of the country that “evinces a comparable tradition of regulation.”

Applying Bruen, courts have found that § 922(g) bans on possession of guns by people subject to domestic protection orders and by people unlawfully using controlled substances violate the Second Amendment. Currently, a Third Circuit en banc court is wrestling with whether the Second Amendment bars the Government from prohibiting the possession of firearms by an individual convicted of the felony of submitting a false application for food stamps over 25 years ago. The Dept of Justice has appealed decisions that the § 922(g)(3) ban on drug users possessing guns is unconstitutional in the 10th Circuit. A group of marijuana users seeking the right to possess guns have appealed an adverse ruling in the 11th Circuit.

In last week’s decision, the U.S. District Court for the Western District of Texas threw out charges that Paola Connelly had violated both 18 USC § 922(g)(3) by possessing a gun as an admitted pot smoker and 18 USC § 922(d)(3) by transferring a gun to her husband, an alleged cokehead.

potscooby180713Neither Paola nor her hubby had been proven to be unlawful drug users. But in the pretrial motion decision, Judge Kathleen Cardone said it didn’t matter if they had been: “[E]ven if Connelly and her husband used controlled substances to the extent alleged by the Government, the Court would find § 922(g)(3) and (d)(3) unconstitutional… Connelly’s alleged drug use more resembles private drinking than public drunkenness, casting doubt on the idea that history supports criminalizing or disarming her for this behavior,” Cardone writes. “And more generally, nothing in § 922(g)(3) limits its applicability to public dangers or active intoxication, putting it out of step with colonial-era attitudes.”

The Judge was clearly troubled that unlike prohibitions on felons possessing guns, § 922(g)(3) does not provide for any pre-deprivation process. The Government need not conduct a hearing or make any offer of proof before it deems someone an “unlawful user” of controlled substances and proceeds to bludgeon the unfortunate stoner with a § 922(g)(3) felony. Citing a prior Western District of Oklahoma case, Judge Cardone complained that “this lack of process makes § 922(g)(3) an ‘outlier in our legal tradition.’”

For “the millions of individuals who use marijuana in states that have legalized the practice,” the Judge observed, “§ 922(g)(3) categorically prevents them from owning a firearm without a hearing or any preliminary showing from the Government. They must choose to either stop their marijuana use, forgo possession of a firearm, or continue both practices and face up to fifteen years in federal prison.”

America’s historical tradition of disarming “unlawful” individuals, the Court held, “appears to mainly involve disarming those convicted of serious crimes after they have been afforded criminal process.” This tradition makes § 922(g)(3) unconstitutional.

Notably, Judge Cardone quoted a 2019 dissent that Supreme Court Justice Amy Coney Barrett wrote as a judge on the U.S. Court of Appeals for the 7th Circuit. Barrett argued that the federal ban on gun possession by people with nonviolent felony records sweeps too broadly. In making that case, she took it for granted that a nonviolent misdemeanor is not enough to justify depriving someone of his Second Amendment rights.

marijuana160818Reason observed, “The Biden administration continues to argue that forbidding cannabis consumers to own guns is like telling people not to carry guns when they’re drunk. The Justice Department, meanwhile, is appealing Wyrick’s decision, and it can be expected to appeal Cardone’s as well… For those keeping partisan score, it is notable that all three of these judges were appointed by Republican presidents: Cardone by George W. Bush, Wyrick and Winsor by Donald Trump. Their disagreement seems to reflect evolving conservative views of marijuana as well as the impact of Bruen.

Look for plenty more judicial rock-and-roll on gun issues.

United States v. Connelly, Case No EP-22-CR-229(2)-KC, 2023 U.S. Dist. LEXIS 62495 (W.D. Tex. Apr. 6, 2023)

United States v. Harrison, Case No CR-22-00328-PRW, 2023 U.S. Dist. LEXIS 18397, (W.D. Okla. Feb. 3, 2023)

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting)

Reason, Another Federal Judge Rejects the DOJ’s Argument That Cannabis Consumers Have No Second Amendment Rights (April 11, 2023)

– Thomas L. Root

Courts Blast Away at Constitutionality of Gun Possession Law – Update for February 6, 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.

APPEALS COURT DECLARES 18 USC § 922(g)(8) UNCONSTITUTIONAL, WHILE ELSEWHERE, DISTRICT COURT OK’S GUN-TOTING POT SMOKERS

The Supreme Court’s June 2022 New York State Rifle and Pistol Ass’n v. Bruen decision claimed another victim last week, as the 5th Circuit held that denying the right to possess guns to people subject to domestic violence protection orders violated the 2nd Amendment.

guns200304“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the Circuit said. “The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the 2nd Amendment of the Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen… it is not.”

Bruen held that when the 2nd Amendment’s plain text covers an individual’s conduct, “the Constitution presumptively protects that conduct.” The government must then prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, the 5th Circuit said, “clearly fundamentally changed our analysis of laws that implicate the Second Amendment… rendering our prior precedent obsolete.”

creditcardshooting230206Zack was a bad actor. While under a domestic protection order for stalking an ex-girlfriend, he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even loosing off five rounds into the air when a credit card was declined at a Whataburger.

The government argued that the 2nd Amendment applies to only “law-abiding, responsible citizens,” neither of which Zack was. But the 5th rejected that interpretation:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the 2nd Amendment’s protections…

The Circuit held that the government had not shown that § 922(g)(8)’s restriction of 2nd Amendment right “fits within our Nation’s historical tradition of firearm regulation… As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the 2nd Amendment.”

gun160711Meanwhile, a Western District of Oklahoma court last Friday dismissed an indictment alleging violation of 18 U.S.C. § 922(g)(3) – prohibiting a drug abuser from possessing a gun – based on Bruen. The defendant had moved to dismiss the indictment because 18 U.S.C. § 922(g)(3) was so vague as to violate 5th Amendment due process. But in a 52-page decision that read more like a law review article than an order granting a pretrial motion, the court ignored due process and applied Bruen instead: “Because the Court concludes that 18 U.S.C. § 922(g)(3) violates Harrison’s Second Amendment right to possess a firearm, the Court declines to reach Harrison’s vagueness claim.”

United States v Rahimi, Case No 21-11001, 2023 U.S. App. LEXIS 2693 (5th Cir. Feb 2, 2023)

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

United States v. Harrison, Case No. CR-22-00328-PRW, 2023 U.S. Dist. LEXIS 18397 (W.D. Okla. Feb. 3, 2023)

– Thomas L. Root