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June 23, 2022

Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?

I am still working my way through the Supreme Court's various opinions in today's big Second Amendment case, Bruen (basics here). And, because I am not a Second Amendment expert, my first-cut reactions to Bruen may not be worth much.  But, since the majority opinion in Bruen seems to reject lots of recent lower court rulings regarding the application of the Second Amendment, I cannot help but start wondering now if all broad felon-in-possession criminal statutes are constitutionally suspect.

Lower courts have largely upheld felon-in-possession criminal prohibitions even since Heller decided the Second Amendment provided for an individual right. But I read Part II of the Court's opinion in Bruen as rejecting much lower-court jurisprudence since Heller and creating a new textual and historical approach for the consideration of Second Amendment claims:

In keeping with Heller, we hold that when the Second 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 Second Amendment’s “unqualified command.”...

Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms....

We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”  

American citizens with felony records are surely part of "the people" covered by the plain text of the Second Amendment, and so their conduct in possessing a firearms would seem presumptively protected.  Turning then to "the Nation’s historical tradition," I surmise from various academic articles (see here and here; see also here) that only dangerous and violent people, not all felons, were historically disallowed to have firearms.  As one of these articles puts it: "there is no historical justification for completely and forever depriving peaceable citizens — even nonviolent felons — of the right to keep and bear arms." 

 But one need not take an academic's word for this notion that there is not historical tradition for dispossessing all felons. Then-Judge, now Justice Amy Coney Barrett made this point quite effectively when dissenting in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). Here is the start of her lengthy dissent in a case upholding application of the federal felon-in-possession ban to a nonviolent felon:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.  But that power extends only to people who are dangerous.  Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.  Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.  In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

Notably, the Bruen opinion for the Court makes repeated reference to the petitioners as "law-abiding" individuals. But I am not sure that dicta alone could or should undermine what Second Amendment's plain text and historical tradition now seem to suggest, namely that governments are on very shaky constitutional ground if and whenever they seek to criminalize gun possession by nonviolent (or "non-dangerous") persons with criminal records.

June 23, 2022 at 12:56 PM | Permalink

Comments

Doug --

You are a positive genius at finding some way to turn a disaster for liberals into a big victory that others are inexplicably missing. Do you have an actual evidence that the present Court is going to ditch Scalia's Heller dictum? Prohibiting felons as a class from gun possession has a long, long historical pedigree, and that all the majority is demanding.

Posted by: Bill Otis | Jun 23, 2022 3:22:12 PM

I am wondering how much weight to put on the Justice Kavanaugh concurrence. It appears that, for now, at least he and the Chief Justice are still agreeing the the Scalia dicta from Heller about what types of "traditional" rules will be followed including laws related to felons in possession and the ability to bar dangerous and unusual weapons (like machine guns).

For proposed gun control reforms, the issue will become what is sufficiently dangerous and unusual to fit within that tradition -- high capacity magazines for example.

The concurrence also seems to permit licensing/permit schemes as long as they are an objective test with qualifications that the average person can meet. Does that mean that the government could require a training/gun safety course before a person can buy a handgun?

Posted by: tmm | Jun 23, 2022 3:53:30 PM

Bill, have you read then-Judge Barrett's opinion in Kanter or any of the academic sources I cited? Neither the text of the Second Amendment nor historical traditions support a broad felon exception to the Second Amendment. I will reprint some of the history reviewed by the Duke Center for Firearm Law, which I believe maintains a fairly comprehensive repository of gun laws:

"[T]here are laws from the Revolutionary War that disarmed persons who failed to take an oath of loyalty. There are also laws in the Repository preceding that time that prohibited the sale to Native Americans 'in order to prevent such dangers of isolated murders and assassinations' and because such sale was 'very poisonous and destructive to the English.'

"However, there is not a law that explicitly addresses taking weapons from a person who has been convicted of a crime in the Repository until 1885. That law came out of Florida, and it authorized sheriffs and other officers making an arrest to 'take possession of any arms found upon the person arrested under this act.' Law enforcement officials were then to retain the weapons until after the trial of the person arrested, and if the person was convicted then his arms were forfeited. Only the arms that were on the person are covered by the law. The statute does not reference any other arms that the person convicted possessed or may later purchase, and thus seems to only cover those weapons that were on their person at the time of arrest.

"Laws that ban possession of some firearms by felons begin to pop up in the Repository in 1914.... These are the same laws that were already referenced in our first blog post in this series out of North Dakota, California, Nevada and Oregon, which banned possession of certain weapons capable of being concealed by aliens and felons (among others in some). As mentioned in that post, the statute adopted in all four states is vastly similar in phrasing and effect. All of these statutes refer to a person who has been convicted of a felony as opposed to a person who has been convicted of a crime of violence.

"There is currently only one law on the Repository that completely bans possession of all firearms by felons (not just those capable of being concealed). It was enacted by Rhode Island in 1927, and only concerns those who have been convicted of a crime of violence."

In other words, at the time the Second Amendment was ratified AND at the time the Fourteenth Amendment was ratified, broad felon dispossession statutes were entirely unknown to American history. You and perhaps many other think such modern laws --- such as the broad federal felon-in-possession law subjecting violators to up to 10 years in prison (or a mandatory minimum of 15 years if they have the wrong criminal history) --- make for really good policy. But the Supreme Court makes clear today the Second Amendment is not to be applied based on your or my view of good gun policy. It is to be applied based on text and history.

And, to repeat, neither the text of the Second Amendment nor the history of English or American gun laws prior to the 20th Century provides any support for a broad felon ban. Justice Barrett clearly gets that, and I suspect she is not the only one in the current majority willing to be consistent with textualism and originalism here. Whether there are five true textual/originalists on the Court on this issue (or in lower federal courts), though, is another question that is sure to be explored a whole lot in the coming weeks and months and years --- on average, 150 people are sentenced every weekday on FIP convictions in federal courts (though I suspect many of these folks would qualify as "dangerous" so that history/tradition might support their dispossession).

Posted by: Doug B. | Jun 23, 2022 4:08:10 PM

Doug --

Two quick questions: Do you know how many times over the last few years cert petitions have presented the question whether FIP laws cut too broad a swath under the Second Amendment and therefore cannot stand? And do you know how many times the Court has granted such a petition (much less decided on the merits in favor of your position)?

I don't know the answer to the first question. The answer to the second question is zero. Which five votes are you getting for your stance here? I can give you five votes against it right now: Roberts, Kavanaugh (if not assassinated per Senator Schumer), Kagan, Sotomayor and Breyer. I think a sixth, Alito, is also highly likely.

P.S. I met Justice Barrett a few weeks ago at one of my fancy-schmancy Georgetown parties. Why didn't I get to practice before judges who look like that?

Posted by: Bill Otis | Jun 23, 2022 6:03:37 PM

Whatever the answers to your discussions, and the absurd decisions of the Supreme Court to restrict the right to exercise gun control in the US, the one certainty is that more children and innocents will likely lose their lives after today. I thought the mantra of conservatives was the "right to life". Who really believes your children are going to be or feel safer tomorrow? The Supreme Court has a very warped idea of what constitutes Justice.

Posted by: peter | Jun 23, 2022 6:23:05 PM

I totally disagree with Barrett's originalist interpretation of the 2nd Amendment and find her analysis off center. However, if this opinion opens the door to (non-violent) felons retaining the right to possess firearms, then it strikes down most, if not all, statutes prohibiting felons from possessing firearms. This opinion, while lauded by gun nuts, may produce the unintended effect of allowing convicted felons to possess guns. Fewer people will be sentenced to prison and folks already serving time on FIP charges may see their sentences reduced. I disagree with originalism, but this could see a positive consequence for criminal defendants.

Posted by: anon | Jun 23, 2022 6:43:10 PM

Bill, two quick answers:

1. Denials of cert do not make constitutional law, Supreme Court rulings do. Today's Supreme Court decision provides that, for a restriction of gun possession to be constitutional, "the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Until the 20th Century, there was absolutely no historical tradition that persons with nonviolent convictions were excluded from Second Amendment protections.

2. It could be years before Bruen's application to federal FIP cased get to the Court. Notably, the current Supreme Court has only 4 of the 9 Justices who were on the Court when Heller was decided (and one of those four will be gone in two weeks). Even with the current Justices, if the case were to involve, say, Martha Stewart who took possession of a gun in order to protect herself from a violent threat, who knows. More important for now is what lower court federal judges, who are duty bound to apply Bruen's new constitutional test, might have to say on this issue. If they faithful comply with their duty to only uphold gun restricts that are "consistent with the Nation’s historical tradition of firearm regulation," they ought to have deep concerns with broad application of the federal firearm law criminalizing possession by nonviolent felons.

My question back: Do you dispute my assertion that neither the text of the Second Amendment nor the history of English or American gun laws prior to the 20th Century provides any support for a broad felon ban? If text and history are what matters, they both point in one direction here, no?

Posted by: Doug B. | Jun 23, 2022 7:22:05 PM

Doug --

Look at the Kavanaugh (with Roberts) concurrence. It's crystal clear from that that the FIP ban will survive. You take those two and add them to the three dissenting liberals (who would curtail gun rights much more than either of us, or the Court majority), and you get five. End of story. Supreme Court cases are not won with debating points on blogs. They are won with five votes. FIP bans have them and Martha Stewart doesn't.

I swear, it's always the same thing. Your side never, ever loses no matter what the opinions say!!! When you bomb out on qualified immunity, it's really a disguised announcement of the seeds of tomorrow's victory. When you bomb out on capital punishment, same deal. When you bomb out on acquitted conduct, ditto.

Blogs are neat and I like them, obviously. But law gets made in court. That's where I practiced for about a quarter of a century. I know what wins and what loses, and FIP is here to stay.

Posted by: Bill Otis | Jun 23, 2022 10:06:42 PM

Bill, I sincerely do not think the Constitution and the interpretation and applications of the rights it protects is about "sides." That you apparently do, and talk about these important issues in this partisan way, makes it so very clear that for you this is all really just about personal policy preferences, and not about fidelity to the rule of law. That's fine, but just own up to the fact that you just want judges to bless your policy preference and do not actually care at all about fidelity to the text or history of the Constitution.

Tellingly, you have not answered this fundamental question: Does either the text of the Second Amendment or the history of English or American gun laws prior to the 20th Century provide any support for a broad felon ban?

You have claimed elsewhere that constitutional interpretation should be focused on the text and original meaning, and you have criticized judges and Justices who do not focus on the text and constitutional history. This serves as a useful opportunity to help me understand what you really mean. As I read the text and understand the history, there is no constitutional foundation for a broad felon ban as an exception to the Second Amendment. Does text and history matter to you in this setting? Should it matter to judges and Justices? Or do those things only matter when they fit your policy views and are simply to be ignored when you do not like the policy consequences? Plenty of reasonable people ignore constitutional text and history when they do not produce a preferred policy outcome -- including perhaps the Chief and Justice Kavanaugh. But I am just seeking to determine if are among those for whom constitutional interpretation, when it gets hard, is about policy preferences and not about text and history.

Posted by: Doug B. | Jun 23, 2022 10:53:24 PM

Peter,

The constitution does not care about your “feelings.” SCOTUS should not either. They are not a “superlegislature” of unelected people in robes. They should not make policy, as the liberals on the court believe.

A law can be 100% great and 100% unconstitutional. Likewise, it can be 100% awful, and 100% constitutional. It’s not the court’s job to decide based on good or awful policy preferences.

Posted by: Peter | Jun 23, 2022 11:07:09 PM

My apologies. The above post had “Peter” in the name of the poster. It was a response to Peter.

Posted by: TarlsQtr | Jun 23, 2022 11:08:42 PM

Doug --

So now you're more of an originalist than Nino Scalia, the author of the famous FIP approval passage in Heller?? Well that's rich! Where is your originalist criticism of Miranda for making up out of thin air mandatory police warnings that appear nowhere, and are not even hinted at, in the text of the Constitution? No, really, where is your criticism of that?

It doesn't exist so far as I've seen. And the reason it doesn't exist is that you are less driven by originalism than by whatever interpretive hook will help the criminal get back on the street earlier. It's only a small exaggeration to say that you've devoted your very noteworthy career to that end. Your originalism, such as it occasionally may be, seems merely to be ad hoc interpretive "flexibility" wearing a fig leaf.

You support a bunch of positions that have lost in court for decades, like opposition to qualified immunity, prohibition on the use of acquitted conduct, bans on FIP penalties, and bans on appeal waivers. But after years and years of failing to persuade judges of all parties and ideologies, you portray yourself as the champion of law, while I'm a mere ideologue.

Ummmmmmmmm, I don't think so. And I've got a long -- and if I don't say so, successful -- record in federal appellate litigation to prove it.

Posted by: Bill Otis | Jun 23, 2022 11:53:57 PM

Bill,

Sorry, but I have to agree with the Professor here. Actually, I have even more problems with the machine gun restrictions than I do the felon-in-possession ban (which has now expanded far past that basis anyway). They simply have no history that predates ratification of even the 14th amendment (the latest date I believe appropriate for such historical inquiry).

Posted by: Soronel Haetir | Jun 24, 2022 12:43:06 AM

TarisQtr - the Constitution was written and signed by good men in 1787 of integrity, with passion and feeling for their country and countrymen. It was practical, moral and acceptably authoritative for its time and gave a foundation for the future stabilization and future for the federal state. But the law created in 1787 was never intended to enslave future lawkeepers and lawmakers from adapting it to meet future needs and progress. The Supreme Court, whether its current membership or their supporters like it or not, earns its respect from the publicly perceived primary role as final arbiter of Justice. If all it becomes is the librarian of a dusty scrap of paper from 1787, its public credibility and hard earned respect will quickly fritter away. Justice is not served well by that. Belatedly, it looks like Congress may be beginning to understand that.

Posted by: peter | Jun 24, 2022 2:35:54 AM

I'm glad to hear there's a chance at overturning such absurd restrictions. I was falsely convicted of a non-violent crime 44 years ago. I was never accused of any crime of violence. My record is perfectly clear before and since. So I'm quite offended when people say that the way to prevent mass shootings is to further crack down on people like me, and I think that those people have taken complete leave of their senses. If universal access to guns was the cause of mass shootings, Switzerland would have lots of them.

What next, a mandatory five year prison sentence for possession of a car by someone who was falsely ticketed for riding a bicycle too fast half a century ago?

Posted by: Keith Lynch | Jun 24, 2022 7:07:53 AM

One thing should be clear from the opinions is that it is now open season for judicial activism in Second Amendment cases. The question for judges is now what weapons from the 1780s and 1860s are the equivalent to today's weapons. That is ultimately a matter of opinion rather than fact or law. I can make an argument that the main weapons in both eras had to be reloaded for each shot. While revolvers existed, the Colt .45 revolver only dates back to the 1870s after the fourteenth amendment. So a plausible argument can be made that neither framing generation intended the right to bear arms to cover semiautomatic weapons. On the other hand, the majority seems to feel that semiautomatics are the modern day equivalent of the musket and other common weapons of the time. But it will always be what judges feel are the equivalent weapons because modern weapons are simply not the equivalent of the old weapons. Guns evolve all the time and with each evolution (and attempts to legislate against the evolution), judges will have to decide whether the change to the weapon is legally significant.

Posted by: tmm | Jun 24, 2022 8:58:47 AM

Bill, you continue to talk about various topics without addressing a seemingly critical question after Bruen's account of how the Second Amendment is to be interpreted: Does either the text of the Second Amendment or the history of English or American gun laws prior to the 20th Century provide any support for a broad felon ban?

I am hoping you can answer that question without going on tangents about Miranda or your record inventing waivers for plea agreements. I do not claim to be an originalist; I think of myself as a legal process textualist (which does make me a critic of Miranda, but that's another conversation). By the same token, I do not assail persons who do claim to be originalists or who adopt other interpretive methodologies in good faith, I am just eager to better understand what various approaches to the Constitution might mean in various settings.

In contrast, Bill, you have claimed to be a textual and an originalist and you have often criticized judges and Justices (including our newest Justice) who do not show fidelity to these interpretive methodologies. Perhaps you want to say "flexibility" is needed in the context of the Second Amendment because, as we all know, guns in the wrong hands can be very dangerous. That's what I am trying to explore here: if, after Bruen's account of the Second Amendment, text and history really will be key or will courts continue to be guided by notions of sound gun policies.

I presume, Bill, that you think broad felon bans on gun possession make for good policy. But that is not what Bruen says really matters, and so I will ask again for your view on what seems to be a key question after Bruen: Does either the text of the Second Amendment or the history of English or American gun laws prior to the 20th Century provide any support for a broad felon ban?

Can you answer that question and/or explain why it should not be a concern for courts and others after Bruen?

Posted by: Doug B. | Jun 24, 2022 9:38:14 AM

Why was Johnny Cash a deputy sheriff ?

https://www.cbsnews.com/news/johnny-cash-deputy-card-found-nashville-sheriff-reveals-music-icon-became-a-deputy-in-1979/
Because back then there were no carry permits.. Now we can all have a gun in public.. I do think the convicted felon will not fall into the 2nd Amendment

Posted by: david raybin | Jun 24, 2022 10:57:59 AM

Peter,

Interesting that you mention “enslave future law keepers and lawmakers.” I’m not trying to change the subject but I believe it is relevant. What is your position on Dobbs?


Also, what does the phrase, “Congress shall make no law…” mean?

Posted by: TarlsQtr | Jun 24, 2022 11:13:50 AM

Doug --

Donald Trump was just as sure he was right about the election as you're sure you're right about felon in possession. But although I voted for Trump, I concluded publicly (https://ringsideatthereckoning.substack.com/p/why-the-jan-6-hearings-are-doing) that Trump is unfit for Office because he will not follow the law. I have exactly the same thinking about FIP bans. You must follow the law regardless of how sure you are it's wrong and that a better reading of the Constitution would vindicate you. That is what citizenship means.

The law, as uniformly announced in the circuits and in Heller (and Bruen properly read for that matter) is that FIP bans are legal. As I've already explained, given the Kavanaugh/Roberts concurrence, it's absolutely clear that the such bans are still legal and have five votes minimum.

If you think I'm wrong, you have a remedy: GO. WIN. YOUR. CASE.

Posted by: Bill Otis | Jun 24, 2022 11:49:55 AM

Again, Bill, can you address the question that the Supreme Court's opinion in Bruen, while rejecting lower court jurisprudence that you cite, makes the Second Amendment's touchstone: Does either the text of the Second Amendment or the history of English or American gun laws prior to the 20th Century provide any support for a broad felon ban?

I am sincerely interested in your answer to this question. Your answer, either way, is not going to lead me to incite a bunch of people with felony records to storm the Capitol. I am eager to understand whether those who claim to be textualist and originalist )and criticize others for failure to show fidelity to these interpretive methods) will be faithful to these principles in this context. Or, as seems likely, jurists may prove inclined to look for "flexibility" here because they favor on policy grounds certain gun control laws that seem inconsistent with the text and history of the Second Amendment.

I do not dispute that the Kavanaugh/Roberts concurrence suggests that these Justices may be eager to adopt a more "flexible" approach to the Second Amendment even in the face what the text and history of the Second Amendment indicate. I surmise you do, too. That's fine, but I think it useful for all of us to understand just when and how policy preferences can and will impact supposed commitments to the text and history of the Constitution in this context (and others).

Posted by: Doug Berman | Jun 24, 2022 12:52:44 PM

TarlsQtr- Dobbs is a huge mistake. Roe was one of those standout achievements that gave recognition to the right of women to exercise control of their own health and bodies. There is nothing more fundamental than that in terms of human rights. Dobbs demonstrates yet again that the Supreme Court has been hijacked by political interests and is no longer independently protecting the interests of individuals or Justice. "Congress shall make no law ..." refers, as I'm sure you already know, to the protection of the right of free speech and of the right to petition government for change. Congress can and should otherwise make federal law in the interests of good governance, national security, and for the benefit of society. It's time it got on with that and broke the wretched political stalemate that the Supreme Court is currently trying to take advantage of. Indeed, Congress has the power to amend the Constitution and has done so on multiple occasions in the past. It can also change the composition of the Supreme Court if current members overreach themselves as they currently are doing. Whilst a dramatic reaction to the Courts position on gun law and Dobbs, if Congress were serious about returning the Court to a truly balanced independent body, it in theory could do so. Of course, with the current impasse in Congress, it won't happen any time soon.

Posted by: peter | Jun 24, 2022 2:21:09 PM

Re: the weapons of 1791. Anyone who thinks the Second Amendment only applies to weapons that existed when the amendment was ratified in 1791 must logically also think that the First Amendment doesn't apply to anything said via telephone, radio, television, movies, or the Internet. Or to anything printed in newspapers, magazines, books, petitions, or protest signs unless they used printing presses of the type that existed in 1791. Or to freedom of religions that didn't exist in 1791, such as Mormonism. Did you write on your protest sign with a quill pen or with a Magic Marker? If the latter, go straight to jail.

Posted by: Keith Lynch | Jun 24, 2022 7:34:09 PM

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