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August 31, 2023

Dissenting from denial of en banc review, Eighth Circuit judges make case that blanket felon disarmament violates the Second Amendment

Yesterday in this lengthy dissent from the denial of rehearing en banc in US v. Jackson, Eighth Circuit Judge Stras make a full-throated case that the broad criminal prohibition under federal law precluding persons with felony records from possessing a gun is constitutionally suspect after Bruen.   This opinion, which is joined by Judges Erickson, Grasz, and Kobes, starts this way:

By cutting off as-applied challenges to the federal felon-in-possession statute, see 18 U.S.C. § 922(g)(1), Jackson and Cunningham give “second-class” treatment to the Second Amendment. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022) (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)).  Even worse, they create a group of second-class citizens: felons who, for the rest of their lives, cannot touch a firearm, no matter the crime they committed or how long ago it happened. See United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023); United States v. Jackson, 69 F.4th 495, 501–02 (8th Cir. 2023). I dissent from the decision to deny rehearing en banc.

The full opinion is a must-read for anyone following Second Amendment jurisprudence, and here is a flavor of the opinion:

Practices shortly after the Founding are consistent with the dangerousness rationale. See Bruen, 142 S. Ct. at 2136–37 (discussing the concept of “liquidation”). Of the states that protected the right to keep and bear arms, none disarmed non-dangerous felons. Cf. Handbook on the National Conference of Commissioners on Uniform State Laws and Proceedings of the Thirty-Fifth Annual Meeting 862–63 (1925) (cataloging the earliest felon-in-possession laws in the states). You read that right, none.

Even violent felons, as a class, were not disarmed until the early 20th century, nearly 150 years later. See Federal Firearms Act, ch. 850, §§ 1(6), 2(e), 2(f), 52 Stat. 1250, 1250–51 (1938). And it was only in 1961, just 62 years ago, that the federal government finally abandoned dangerousness as the litmus test for disarmament in enacting § 922(g)(1)’s predecessor. See An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757 (1961); see also Range, 69 F.4th at 104. There is nothing about felon-dispossession laws that is longstanding, unless six decades is long enough to establish a “historical tradition” of the type contemplated by Bruen. Spoiler alert: it is not. See Bruen, 142 S. Ct. at 2156 (holding unconstitutional a century-old licensing regime).

In sum, the decades surrounding the ratification of the Second Amendment showed a steady and consistent practice. People considered dangerous lost their arms. But being a criminal had little to do with it....

Disarmament is about dangerousness, not virtue. We know that because colonial and post-ratification gun laws targeted rebellion and insurrection, not criminality. There have always been criminals, but there is no suggestion in any “historical analogue” that criminality alone, unaccompanied by dangerousness, was reason enough to disarm someone. Bruen, 142 S. Ct. at 2133 (emphasis omitted). And history certainly does not support Jackson’s unbending rule that felons can never win an as-applied challenge, no matter how non-violent their crimes may be or how long ago they happened.

August 31, 2023 at 01:55 PM | Permalink


It probably does violate constitution since anything can be called a "felony" . . . .

Posted by: federalist | Aug 31, 2023 1:57:49 PM

It is now clear that the U.S. Supreme Court must soon take up the issue of whether 18 U.S. C. section 922(g)(1) violates the Second Amendment, either in toto, or on an "as applied" basis in individual cases. U.S. v. Jackson (8th Cir. 6/2/2023)(rehearing en banc denied) plainly conflicts with Range v. Attorney General, and United States v. Bullock, (S.D. Miss. June 28, 2023).

Posted by: Jim Gormley | Sep 1, 2023 10:06:25 AM

Kentucky state law is unusual, in that a Governor's Pardon does not eliminate the felony conviction itself, just the consequences of it. By contrast, Federal law and the laws of many states provide that a governor's pardon actually eliminates the conviction itself, as though the defendant had never been convicted of it. Even though a Kentucky Governor's pardon may restore the Second Amendment right to keep and bear arms, nevertheless the defendant cannot buy a gun, because the pardon does not give the defendant the right to have his conviction expunged. What happens is that despite the defendant having received a Ky. Governor's Pardon, restoring the defendant's gun rights, the conviction itself still remains in the N.C.I.C. computer system, so the defendant cannot pass a background check to buy a firearm! See, Harscher v. Commonwealth of Kentucky, 327 F.3d 519 (Ky. App. 2010).

Posted by: Jim Gormley | Sep 1, 2023 10:16:53 AM

It is now fascinating to look back at Amy Coney Barrett's dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (arguing that defendants convicted of non-violent felonies should not be banned from possessing firearms, based upon legal history between 1791 and 1938), before she became a Justice, and set how prescient she was then about where Second Amendment law was headed. I am betting that she writes the majority opinion when the case comes before the U. S. Supreme Court.

Posted by: Jim Gormley | Sep 1, 2023 11:59:28 AM

JIm Gormley --

Too bad every Senate Democrat voted against confirming Justice Barrett. Whatever one might make of her views on the Second Amendment, there is no serious doubt that she's qualified by intellect and temperament to sit on the Court. But when being a partisan hack is all that matters, a party-line rejection is what you get.

Posted by: Bill Otis | Sep 1, 2023 11:06:51 PM

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