« Interesting gendered jury history in the application of the death penalty | Main | Encouraging steps reported in Justice Department's latest annual report on First Step Act implementation »
July 10, 2024
Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi
This week has brought some new press pieces capturing some of the uncertainty about Second Amendment limits on federal criminal prohibtions of gun possessiom after the Supreme Court's ruling last month in Rahimi. Here are links to the pieces and excerpts:
From the Washington Post, "The Supreme Court upended gun laws nationwide. Mass confusion has followed."
[O]n both sides of the gun-control debate, people say the [Rahimi] ruling will do little to ease the confusion and disruption unleashed by the high court’s 2022 historical mandate. Only eight of roughly 500 federal court cases that are challenging the constitutionality of firearms restrictions since the Bruen decision that are being tracked by the gun-control advocacy group Brady involve the law recently upheld by the Supreme Court, according to a Washington Post review of the data. Those opposing gun regulations said they still plan to aggressively target laws that they believe violate the Constitution....
The Post identified about 500 distinct federal challenges under Bruen. Nearly 40 percent of those federal cases involve challenges to laws that keep guns away from people who are charged with or convicted of felonies, according to a review of the data. Roughly 15 percent involve bans on types of firearms such as machine guns, military-like weapons and ghost guns.
From Bloomberg Law, "Law Keeping Guns From Drug Users Gets Fifth Circuit Questioning":
How the US Supreme Court’s recent decision in US v. Rahimi bears on the constitutionality of a law barring drug users from possessing guns was the focus of questioning by Fifth Circuit judges Tuesday.
“How would the statute operate in a place like Colorado, which has much more liberal marijuana usage laws?” Judge Kurt D. Engelhardt asked the government. “Would the state law have any type of impact, or do we just say anybody who regularly and habitually uses marijuana in the state of Colorado would be a felon under the section?”
“If they possess a firearm, our position is the latter,” said Mahogane Denea Reed, an attorney for the government. But, Reed said, that could be taken up on an as-applied challenge and not resolved in the case before the court.
“With the benefit of Rahimi from the Supreme Court, they want us to look at this from every different point of view that we can imagine,” Engelhardt responded.
The questioning came as the US Court of Appeals for the Fifth Circuit heard oral arguments in the government’s appeal of a district court ruling that the law, Section 922(g)(3), is unconstitutional. US District Judge Kathleen Cardone’s 2023 order tossed a federal indictment against Paola Connelly on Second Amendment grounds.
A few (of many) prior related posts (recent and past):
- Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?
- Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
- Fifth Circuit panel declares unconstitutional federal prohibition on gun possession by “unlawful user” of controlled substances
- After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden?
- New post-Rahimi SG filing urges SCOTUS to "grant plenary review to resolve Section 922(g)(1)’s constitutionality"
- Surpeme Court grants cert on First Step resentencing, GVRs gun issues, and lots of statements in (final?) order list
- "Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs"
July 10, 2024 at 12:47 PM | Permalink
Comments
The "Second Amendment Wars" seem likely to continue in the lower Federal Courts for years to come, until the Supreme Court tells us whether 922(g)(1), the felon in possession of a firearm" statute violates the Second Amendment or not. Under the subsections of 922(g), the (1) cases make up 88% of the cases. I am presently working on a Motion to Dismiss concerning a case pending in the Eastern District of Kentucky. Our client took a personal pistol with him in his backpack to Marine Corps Reserve Training one weekend. He did not want to leave the pistol at home, because his stepfather, who lives with him and his mother, is a felon. An Officer became aware of the personal pistol and called the F.B.I. The client, who has no criminal history at all, is charged with a misdemeanor violation of 18 U.S. Code sec. 930(a), possession of a firearm in a federal facility (the Marine Corps Reserve Training Center). In January 2024, a District Judge in Tampa declared section 930(a) to violate the Second Amendment, as to a U.S. Postal Service truck driver, who brought a personal pistol to work. That defendant also had no criminal history and possessed a Florida permit to carry a concealed weapon. The Tampa Judge found that there was no government history of regulating the possession of firearms in U.S. Postal facilities until 1968. In fact, during the 19th and early 20th century when mail was transported by stagecoach and train, the custodians of the mail were usually armed. We are hopeful that we can get our Kentucky case dismissed because of the Second Amendment too. Obviously, there are guns at a Marine Corps Reserve Training facility, and in the early days, Marines frequently carried personal weapons along with their Government-issued rifles. Our client was not involved in committing any crime, and he has a clean criminal history. This is one of the silliest Federal criminal prosecutions I have seen, since a Kentucky defendant was prosecuted for riding his 4-wheeler in the Daniel Boone National Forest (where motorized vehicles are not permitted). That defendant paid a $1,500 fine and was placed on 1 year of probation. Then, 4 months into his probation, he got a Kentucky DUI, which violated his probation, so the Judge made him serve 1 year flat (with no good conduct time) at FCI - Manchester, Kentucky. At the time, the defendant's wife was pregnant with their third child.
Posted by: Jim Gormley | Jul 10, 2024 1:24:05 PM
The Tampa case referred to in the prior comment is "United States v. Emmanuel Ayala", No. 8:22-cr-369-KKM-AAS, 2024 U. S. Dist. LEXIS 7326, ____ F. Supp.3d ____ (Jan. 12, 2024), appeal filed, No. 24-10462 (11th Cir. Feb. 12, 2024)
Posted by: Jim Gormley | Jul 10, 2024 1:27:33 PM
We are still waiting for a decision from the Eighth Circuit on Missouri's Second Amendment Preservation Act (technically the claims are more supremacy clause based than Second Amendment based) which allows any person to sue a police department who hires a former federal agent whom, in the opinion of the plaintiff, enforced an unconstitutional federal gun law.
Posted by: tmm | Jul 12, 2024 10:45:40 AM
