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June 2, 2023
Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition
An Eighth Circuit panel today issued a significant ruling rejecting a federal criminal defendant's claim that "he had a constitutional right under the Second Amendment to possess a firearm as a convicted felon." The ruling in US v. Jackson, No. 22-2870 (8th Cir. June 2, 2023) (available here), should be read in full by anyone following post-Bruen jurisprudence closely. Here are some excepts from the opinion:
ackson also appeals the district court’s denial of his motion to dismiss the indictment. He argues that § 922(g)(1) is unconstitutional as applied to him, because his drug offenses were “non-violent” and do not show that he is more dangerous than the typical law-abiding citizen.
We conclude that the district court was correct that § 922(g)(1) is not unconstitutional as applied to Jackson based on his particular felony convictions. The Supreme Court has said that nothing in District of Columbia v. Heller, 554 U.S. 570 (2008), which recognized an individual right to keep and bear arms, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626; see McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion). The decision in Bruen, which reaffirmed that the right is “subject to certain reasonable, well-defined restrictions,” 142 S. Ct. at 2156, did not disturb those statements or cast doubt on the prohibitions. See id. at 2157 (Alito, J., concurring); id. at 2162 (Kavanaugh, J., concurring, joined by Roberts, C.J.); id. at 2189 (Breyer, J., dissenting, joined by Sotomayor and Kagan, JJ.). Given these assurances by the Supreme Court, and the history that supports them, we conclude that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).
History shows that the right to keep and bear arms was subject to restrictions that included prohibitions on possession by certain groups of people. There appear to be two schools of thought on the basis for these regulations. A panel of the Third Circuit recently surveyed the history in light of Bruen and concluded that legislatures have longstanding authority and discretion to disarm citizens who are not “lawabiding” — i.e., those who are “unwilling to obey the government and its laws, whether or not they had demonstrated a propensity for violence.” Range v. Att’y Gen., 53 F.4th 262, 269 (3d Cir. 2022) (per curiam), vacated, reh’g en banc granted, 56 F.4th 992 (3d Cir. 2023). Jackson contends that a legislature’s traditional authority is narrower and limited to prohibiting possession of firearms by those who are deemed more dangerous than a typical law-abiding citizen. While the better interpretation of the history may be debatable, we conclude that either reading supports the constitutionality of § 922(g)(1) as applied to Jackson and other convicted felons, because the law “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130....
In sum, we conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms. 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. Consistent with the Supreme Court’s assurances that recent decisions on the Second Amendment cast no doubt on the constitutionality of laws prohibiting the possession of firearms by felons, we conclude that the statute is constitutional as applied to Jackson. The district court properly denied the motion to dismiss the indictment.
June 2, 2023 at 07:43 PM | Permalink
Comments
I think I predicted this as soon as Bruen came down. There will be some nibbling around the edges, and there has been, but the basic FIP statute will stand, as per Scalia's dictum in Heller. It's well-settled in the law at this point, it draws a sensible (although not a perfect line (yes, yes, Martha Stewart), and there is neither a judicial nor a political groundswell against it.
Posted by: Bill Otis | Jun 3, 2023 9:12:23 AM
Once we abolish/re-amend 2A this will be moot. But apart from that, restrictions after a sentence is complete are tricky. Should people who served time for felony theft be forbidden from things not related to theft (like firearms possession)? I would think not. People with chronic DUI’s can lose their license forever, repeat sex offenders have to report. Those seem reasonable (when reasonably written and enforced).
But in addition to our insane appetite for over-punishment, we also never want it to end. But, as with everything justice related, it’s a balance between safety and individual rights, that should skew toward liberty.
Posted by: SBradley | Jun 3, 2023 10:29:55 AM
It seems to me that the appellant's counsel are trying to set up a grant of Certiorari by the U. S. Supreme Court, trying to change the precedents, in light of Justice Barrett's dissenting opinion in "Kanter v. Barr", No. 18-1478, pp. 27-64 (7th Cir. March 15, 2019). That dissent gives the attorneys encouragement that if they can get an appropriate case before the Supreme Court, Justice Barrett will get enough Justices to change their views, so that for the gun prohibition to apply, the defendant's prior felony conviction must be some kind of violent felony; felony non-support (not paying child support) would no longer disqualify one from possessing a firearm. But it's just a wish.
Posted by: Jim Gormley | Jun 3, 2023 11:26:08 AM
"Kanter v. Barr", 919 F.3d 437 (7th Cir. 2019).
Posted by: Jim Gormley | Jun 3, 2023 11:38:34 AM
SBradley --
"Once we abolish/re-amend 2A this will be moot."
When will that be? Is there any viable support in either party for doing it? Any other portions of the Bill of Rights that should get tanked?
"But apart from that, restrictions after a sentence is complete are tricky."
Actually the law is full of them and has been for decades.
"Should people who served time for felony theft be forbidden from things not related to theft (like firearms possession)?"
Possessing a firearm can come in quite handy if the person who owns what you're in the process of stealing comes home unexpectedly.
Posted by: Bill Otis | Jun 3, 2023 2:53:48 PM
Bill, Tarls, et al
I recently read an article in which it was argued that first time non-violent "non-contact" sex offenders (i.e., those who did not have any contact nor attempted contacts with a minor/others, and are not repeat offenders) should be exempt from 922(g)(1) prohibitions. It was argued that this sub-set of offenders are particularly vulnerable to acts of vigilantism and the like.
The article pointed to a recent increase of vigilantism stemming from incendiary propoganda fed to volatile and irrational folks who frequent 4Chan websites, and other Extreme Right/QAnon-like forums. (Far Right politicians, particularly, like to single out these folks, fomenting such vigilante mindsets).
As public sex offender registries are now easily accessible nationwide, many of these former offenders have their photos AND addresses displayed for all to see. Everyone living in the household then becomes equally as vulnerable, including spouses, children, parents, grandparents, etc.
Would you think it reasonable and rationale for this sub-set of offenders be allowed to possess firearms for self-defense purposes?
Arguments could be made that "contact sex offenders" (i.e., had actual contact with a minor, or attempted to do so) present a heightened risk as there exists a potential to use a firearm to commit their crime (although actual use of a firearm or display thereof is not all that common in such offenses), and therefore, should continue to be subjected to the prohibition.
I'm also familiar with arguments made for non-violent white-collar criminals, but this sub-set are not particularly vulnerable to vigilante attacks, nor do they have their photos/addresses published on the internet.
Posted by: SG | Jun 3, 2023 4:32:28 PM
Mr. Otis, you say "Possessing a firearm can come in quite handy if the person who owns what you're in the process of stealing comes home unexpectedly."
How likely is that for someone like me who was accused of office burglary 45 years ago, whose record is otherwise perfectly clean before and since, and whose alleged victim was convinced of his innocence, as was the part of the federal government that grants security clearances? If I were to peacefully possess an unloaded deer rifle in my own home, should I really get a mandatory five year prison sentence? The Commonwealth of Virginia thinks so.
As for Martha Stewart, perhaps you can explain how someone can be guilty of lying when she claims she didn't commit a crime, while being innocent of that crime. Maybe that makes sense to a prosecutor, but it doesn't make sense to me.
I paid my imagined debt to society before most people alive today were born. All of my rights should be restored, and my false conviction should be expunged. Even if I had been guilty, I've obviously long since reformed.
Posted by: Keith Lynch | Jun 3, 2023 5:10:05 PM
SG --
"Would you think it reasonable and rationale for this sub-set of offenders be allowed to possess firearms for self-defense purposes?"
I would think that any individual claiming to fit the very unusual profile you describe should petition the court for relief and make his case. In addition, he can lobby Congress to change the law to fit cases like his and to make the change retroactive.
But, as "Mark" pointed while taking time out from smearing my wife's religion, I'm old. I've been around the track a couple of times. I suspect that, if and after you get the very narrow exception you seek in your comment, you'll be back the next day seeking to broaden that exception just a wee bit. And if that works, back the day after that with a little more broadening. Of course, if you affirm that you'd stop, period, with the narrow set of facts you describe (rather than use it as the opening wedge), that might cast things in a different light. Do you so affirm?
As to vigilantes: Some would prosecute them to the full extent of the law (and take brickbats for being mindlessly "tuff" on crime). Others would defend them and make one excuse after another for their lawless conduct. I think you know which category I'd be in. Which category would you be in?
Posted by: Bill Otis | Jun 3, 2023 6:34:32 PM
Keith Lynch --
1. I've managed to live longer than you without possessing a loaded or unloaded deer rifle, or any other rifle, in my home or elsewhere. It's not a hardship at all, so I wouldn't worry about it. Over 99% of the population does it and never even thinks about it.
2. "As for Martha Stewart, perhaps you can explain how someone can be guilty of lying when she claims she didn't commit a crime, while being innocent of that crime."
Easy. Consider this scenario: She tells the agents that she talked to her broker about selling Exxon on December 1 while vacationing in Aruba. But actually she talked to him about selling General Motors on October 1 while at her home in Maine. The misinformation causes the investigators to go down a few blind alleys. Whether of not she turns out to be guilty of the underlying object offense of insider trading, she has still lied to the FBI in a material matter, and is therefore guilty under 1001.
This is conceptually similar to what the Special Counsel seems to be gearing up to charge against Trump. It may turn out that the documents he took were not classified, or that the government cannot prove BRD that they were. But if he's moving them around his Florida estate to stay one step ahead of a search warrant or a subpoena, that's obstruction regardless of his guilt or innocence of the underlying crime.
You can't play games and you can't lie. That's the law. If you want to get the law changed, talk to your Congressman.
As to your own felony conviction, I have two observations since you brought it up. First, if you want expungement, petition the court to get it. I don't know that much about Virginia state law, so I don't know what your chances are. Second, and better than that: Let it go. If it was 45 years ago -- more than half a lifetime -- time to kiss it goodbye. Past time, really.
Posted by: Bill Otis | Jun 3, 2023 6:59:07 PM
SG,
I’m not for sex offender registries. I’m for putting them in prison and throwing away the key. The damage they do is too great.
Posted by: TarlsQtr | Jun 3, 2023 8:52:26 PM
Bill,
While you seek to minimize this issue by stating these are a 'very narrow set of facts' which are 'very unusual', I would disagree with such characterizations.
When reviewing statistics in just the federal system, the total number of individuals who have been convicted of possession/receipt of CP over the past 20 years approximate 30,000 +/-. Each of them are rendered to public registries (with photos and adresses published) for the remainder of their lifetimes. Each of them, as well as whoever may also reside in the households, are subject to the clear and present danger of random attack by the aforementioned vigilantes.
If we should then consider similar stats from every State, I approximate the number to be 10 times that of the federal. We're talking 300k or so. And for argument's sake, let's reduce that number by half, just because - that's still 150k. Please keep in mind that these are real people, not just a statistic. And these numbers increase when considering the other occupants of the household who are equally as vulnerable.
As to your assumption that I would advocate for further exceptions to the 922 statute (the 'old slippery slope' argument), well, yes...I would so advocate IF another sub-set of non-violent offenders were similarly targeted by psycho vigilantes.
As to my position on punishment of such vigilantes? I advocate for the incapacitation of all violent offenders (not just vigilantes) for a reasonable amount of time, after which they would undergo a risk assessment prior to release.
As to your 'suggestion' that an offender "can lobby Congress to change the law to fit cases like his and to make the change retroactive". We all know the chance of any elected official sponsoring a bill that effectively "takes the knee off the neck" of a sex offender, is absolute zero, unless there is an elected official who has announced their retirement, and still...very, very unlikely.
This is why the Courts are far more likely to be the forum where relief would be sought and gained.
Posted by: SG | Jun 3, 2023 9:55:37 PM
I would not characterize the third judge in Jackson as dissenting. He concurred in the judgment nothing his belief that Heller was still binding. It is unclear if he disagreed with the Bruen analysis or just felt that it was not needed given the language in Heller.
Obviously, with the various opinions floating around, the validity of felon in possession statutes needs to be resolved by the Supreme Court sooner rather than later as what federal laws applies can't be different in different circuits.
Posted by: tmm | Jun 4, 2023 11:47:18 AM
Mr. Otis, you wrote:
> I've managed to live longer than you without possessing a loaded or
> unloaded deer rifle, or any other rifle, in my home or elsewhere.
> It's not a hardship at all, so I wouldn't worry about it."
Millions of people live long and healthy lives without ever possessing
a fire extinguisher or a smoke alarm, without ever being vaccinated,
and without ever wearing a seat belt when driving. It doesn't follow
from that that anyone should get five years in prison for possessing
a fire extinguisher or a smoke alarm, for being vaccinated, or for
wearing a seat belt.
Of course millions of others died young because they failed to
possess, do, or use those things.
I don't actually want to possess a gun. But I do want the right to
possess one. And all other rights. Wouldn't you be bothered by
being wrongfully permanently stripped of a right, even one you had no
current intention of exercising? I might need a gun someday. Or I
might want to accept an invitation from a friend to go target shooting
at a range. (NRA headquarters, which includes a range, is in my county.)
More importantly, I don't want to be at risk of a mandatory five-year
prison sentence if I were to inadvertently possess a gun. I often help
friends move house. I have to warn them to set aside any box that may
contain a firearm or ammunition, as I'm not allowed to pick it up.
And I'm also not allowed to ever be alone in a home, office, or
vehicle that contains a gun.
There's a case here in Virginia of a boat owner whose boat was
inspected. Had it lacked a flare pistol, he would have been guilty
of a misdemeanor, as that's a required piece of safety equipment.
Unfortunately for him, it *did* have a flare pistol. That made him
guilty of a felony. Sucks to be him.
There are countless other state and federal restrictions on my rights,
with ones being added or removed every year. There's no central
location where I can look up the current definitive list. How much of
my time should I have to spend to try to keep track of the list? No
matter how hard I try, I'm sure there are some I've missed. Especially
since according to Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006),
Americans are bound by secret laws. But ignorance of the law is no
excuse.
> As to your own felony conviction, I have two observations since you
> brought it up. First, if you want expungement, petition the court
> to get it. I don't know that much about Virginia state law, so I
> don't know what your chances are.
I've been told by more than one Virginia lawyer that my chances are
minuscule, and that representation would be expensive. Of course I
could file pro se. It's about like the difference between the odds of
winning the lottery by buying a ticket versus the odds of winning the
lottery by keeping an eye out for a discarded ticket. My chances are
very small with the former and much smaller with the latter.
As for "expungement," it's not clear whether that's the same as being
officially not guilty, or whether it just means that my records are
sealed. If the latter, whom are they still open to? And would I then
be lying if I were to claim to have never been convicted?
I have already had some of my rights restored, in 2016. Not for any
virtue on my part, but because Virginia's governor restored some of
the rights of everyone who had completed their sentences, in a failed
attempt to get his gang's crook rather than the rival gang's crook
elected president in 2016. (I voted -- for the first time in my life
-- for a third party candidate.)
> Second, and better than that: Let it go. If it was 45 years ago --
> more than half a lifetime -- time to kiss it goodbye. Past time,
> really."
My alleged crime was 45 years ago. I was released from prison
43 years ago. My parole ended 41 years ago. But the collateral
consequences -- which are what this thread is about -- are ongoing.
And it's *not* all about me. The system hasn't changed significantly
in the past half century. Similar and worse injustices are being
done to hundreds of thousands of other innocent Americans every year.
Millions every decade. I have first-hand knowledge of this, and I
make the world a better place by sharing it. If I'd had a chance to
talk to Martha Stewart before she talked to the FBI, I would have
advised he to zip the lip and hire the best lawyer she could afford.
(Unlike most Americans, she could afford a good one.)
As I've said before, if someone were to stomp on my foot, I'd forgive
them and move on. But not until they removed their foot from mine.
I won't apologize for spending about 2% of my time since my retirement
on this. The other 98% of the time I make the world better in
other ways. For instance I recently made contributions of original
mathematical research to OEIS.
Getting back to my case, one irrelevant update is that the office
building that I was falsely convicted of burglarizing when it was new,
and later worked at for a year, is currently being torn down. This
can be seen on YouTube by searching on "RCA Building demo." This puts
an end to my faint hope that someday some super-advanced forensic
science could rule out my presence in that office 45 years ago,
perhaps doing a complete molecular inventory and showing that all
my DNA there dates to 43 to 42 years ago, with none older or newer.
In another thread this morning, you mention policies that "worship
criminals as martyrs." Unless you're speaking of criminals who wear
a badge, you're delusional. There are no such policies in the US.
Posted by: Keith Lynch | Jun 4, 2023 5:07:14 PM
Keith Lynch --
"If I'd had a chance to talk to Martha Stewart before she talked to the FBI, I would have advised he to zip the lip and hire the best lawyer she could afford."
Thank you for not disputing my explanation about why Ms. Stewart could be (and is) guilty of obstruction even while being not guilty of the object offense under investigation.
P.S. If she'd just told the truth instead of lying, she wouldn't have needed advice from either you or a lawyer. Telling the truth to the FBI is really easy. I've done it dozens of times, never once feeling the need for anyone's legal advice.
Posted by: Bill Otis | Jun 4, 2023 7:41:00 PM
Bill,
Are you saying that you were the subject of criminal investigations several times in which you spoke with the FBI? I think you need to clear this up immediately.
Posted by: SG | Jun 5, 2023 10:31:36 PM
SG --
I don't need to "clear" anything up, immediately or slowly, to people who won't even identify themselves (or to anyone else on this blog, now that we're at it). However, as has become my wont, I'll humor you, notwithstanding your quite odd belief that criminals aren't responsible for what they do but everyone else is.
I have never been so much as questioned by the police or FBI about a crime, and never arrested for or charged with a crime. I have held several posts for which clearance is needed -- at DOJ, the DEA, and the White House. While a private citizen, I was also nominated for a Senate-confirmed position. For each of those, there are extensive background checks conducted by the FBI. I was happy to answer every question asked of me and never even thought of having a lawyer present. You don't need a lawyer to tell the truth.
There are lots and lots of criminals, con men, punks and liars posting in the comments section. Some or many of them may have been questioned about criminal matters. I don't happen to be one of them -- as I'm pretty sure you already knew. Good effort at pulling my leg, though.
Posted by: Bill Otis | Jun 5, 2023 11:17:51 PM
Mr. Otis, thank you for answering my question about lying to the FBI.
However, just because the FBI claims she lied doesn't mean she did. She might have. I don't know. But given that she would have nothing to gain and plenty to lose by telling a lie, especially one that could be easily proven to be a lie, and given that the FBI doesn't record interrogations or allow the suspect or the suspect's lawyer to record, meaning that they can "mis-remember" what the suspect said without fear that they'll be proven wrong, I still think the only reasonable thing to do when questioned about a crime is to zip the lip. Fortunately, hardly anyone still thinks that this conveys guilt.
As for being questioned for a security clearance, that's obviously a completely different situation.
I'm not aware of any con-men, punks, criminals, or liars who post here. Could you identify them, please?
Posted by: Keith Lynch | Jun 5, 2023 11:51:47 PM
Keith Lynch --
Punks -- "Mark," the guy who said my wife is a self-hating Jew (a remark to which, conspicuously, you took no exception). Actually, "punk" is too mild a word for him. Or if you want to tell us why he's wonderful, feel free.
Criminals -- All of us! Haven't you read Harvey Silvergate's "Three Felonies a Day"? Its thesis is that we are all not merely criminals but repeat criminals, because the web of criminal law is so complex and so all-over-the-place that committing crime is inescapable. But if you want a more conventional example, try someone who, with the assistance of counsel and after ample time to think about it, pleads guilty to a crime. Such a person is a criminal by his own admission. Know anyone like that?
Liars -- the numerous commenters who claim we have "mass incarceration." That is simply and breathtakingly false. One-half of one percent of the population is not mass anything. And no, you don't get unilaterally to mangle the meaning of the word "mass." Also: you. You have claimed that "all" police lie as a "job requirement" and the justice systems of Russian and China are no worse than that of the United States. These claims are not merely outlandish smears. They're lies. It's instructive that not a single commenter other than you makes them. For a less embittered person, that would be a lesson. It won't be for you.
Con-men -- The fellow who has said that I'm TarlsQtr's "defense attorney." Why he wants to do this con, other than to be what he considers cute, is beyond me. Got any ideas?
Posted by: Bill Otis | Jun 7, 2023 12:27:46 AM
Mr. Otis:
> Punks -- "Mark," the guy who said my wife is a self-hating Jew (a
> remark to which, conspicuously, you took no exception).
I don't know your wife, so I have nothing to say about her. And I may not
have even seen that comment. I don't read every comment on every post.
> Criminals -- All of us! Haven't you read Harvey Silvergate's "Three
> Felonies a Day"? Its thesis is that we are all not merely criminals
> but repeat criminals, because the web of criminal law is so complex
> and so all-over-the-place that committing crime is inescapable.
I have read that, but I'm not convinced that he's right. I for one am
not aware of ever having committed anything that's currently a felony
under Virginia or US law. Of course it's possible that I'm guilty of
something that I'm not aware is a federal felony, as it's not humanly
possible to read all federal laws even if there weren't some laws that
are secret. (I *have* read all Virginia statutes, believe it or not.)
But my conscience is clear. I haven't done anything that's what most
people are thinking of when they talk about crime.
> But if you want a more conventional example, try someone who, with
> the assistance of counsel and after ample time to think about it,
> pleads guilty to a crime. Such a person is a criminal by his own
> admission. Know anyone like that?
You seem to think you're making some kind of clever point when you
bring up the fact that I, like millions of other innocent Americans,
was part coerced and part tricked into mouthing words I didn't fully
understand when I was young and still gullible enough to trust
authorities. But the only point you're actually making is that
the criminal justice system is itself criminal.
Were there witches in Salem? Some who were accused pleaded guilty.
None of them were executed. Nearly all of those who pleaded not
guilty were convicted and executed. How would you have pled?
> Liars -- the numerous commenters who claim we have "mass
> incarceration." That is simply and breathtakingly false.
The US locks up a higher proportion of its population than any other
large country.
> One-half of one percent of the population is not mass anything.
> And no, you don't get unilaterally to mangle the meaning of the
> word "mass."
So you claim that Tim McVeigh was not a mass murderer? He killed less
than a millionth of the US population. And there has never been a
"mass casualty incident" in the US? It's you who are mangling the
meaning of "mass." Check a dictionary.
> Also: you. You have claimed that "all" police lie as a "job
> requirement"
Look up the "Reid technique." Or your own past posts in which you've
pointed out that SCOTUS gave its dispensation to lying police. Are
you implying that if a liar is legally allowed to lie, then his lies
don't count as lies?
> and the justice systems of Russian and China are no worse than that
> of the United States.
I didn't say that.
> These claims are not merely outlandish smears. They're lies.
Just because someone disagrees with you doesn't mean that they're
lying. Or even that they're mistaken. Or even that you didn't
misread what they said.
> It's instructive that not a single commenter other than you makes them.
If I don't respond to a comment about your wife, that means I agree
with whatever that comment said? But if people don't respond to a
comment I make, that means they disagree with me? Is that what passes
for reasoning among prosecutors?
I don't claim to be familiar with the legal systems of all other
nations. Do you? Certainly the legal systems were very bad in
Stalin's Russia and Mao's China. And even today, you can go to jail
in those countries for criticizing their governments. But I'm not
convinced that someone who isn't criticizing their government is more
likely to be falsely convicted in those countries than in the US, or
is likely to get a shorter sentence if they are.
There is a lot of hypocrisy. Biden criticized Russia for harshly
sentencing Brittney Griner for possessing a small amount of marijuana
oil -- something there's no dispute that she was guilty of. Is he
really not aware that some people in the US are serving longer
sentences for possessing less marijuana?
> For a less embittered person, that would be a lesson.
Do you consider all activists to be embittered?
Posted by: Keith Lynch | Jun 9, 2023 12:11:45 AM
