Sentencing Law and Policy

What kind of Second Amendment case will be next for SCOTUS after Bruen and Rahimi?

Anyone and everyone following Second Amendment litigation since the Supreme Court's landmark Bruen ruling knows that it is not a question of whether, but just a matter of when, the Justices will take up challenges to various federal criminal gun prohibitions to continue adumbrating for lower courts just how they think originalistism is supported to work here.  The Rahimi ruling, perhaps unsurprisingly, only deepened uncertainties (and lower court splits) on various issues, and a number of recent pieces highlighting just some of the Second Amendment jurisprudential messiness has me feeling somewhat more sure another Second Amendment cert grant will be coming soon.  But these articles and other matters also have me feeling somewhat less sure about what particulars issues and cases the Court will decide to take up:  

From Bloomberg Law, "Gun Litigation Will Keep Federal Appeals Courts Busy in 2025"

From the New York Times, "Courts in ‘State of Disarray’ on Law Disarming Felons"

From Reason, "5th Circuit Reaffirms That Prosecuting a Marijuana User for Illegal Gun Possession Was Unconstitutional"

From Stateline, "Judges topple gun restrictions as courts chart an uncertain path forward"

From The Volokh Conspiracy, "Ohio Court Strikes Down Categorical Prohibition on Gun Possession by People Under Indictment"

As some of the above articles highlight, there is a wide array of churning lower-court litigation assailing gun restrictions well beyond federal criminal prohbitions in 18 USC § 922(g), and so it is certainly possible that the Justices might take up disputes over restrictions on types of guns or other regulatory matters before addressing federal possession prohibitions again.  In addition, because the incoming Trump administration could be more supportive of a more expansive view of the Second Amendment, the Supreme Court's approach to 922(g) disputes migth get influence by some new advocacy coming soon from the Justice Department.

Interesting times.

En banc Third Circuit again finds federal felon-in-possesion ban unconstitutional as applied to Byran Range

Eighteen month ago, as reported in this post, the full en banc Third Circuit found unconstitutional, on the basis of the landmark Second Amendment Bruen opinion, the application of federal felon-in-possession law to a person with a false statement conviction from decades prior.  The Supreme Court called upon the Third Circuit to review its work following the Justices' subsequent 2024 Second Amendent ruling in Rahimi.  Today, the en banc Third Circuit reached the same Second Amendment outcome in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (available here).

The new majority opinion in Range runs only 20 pages, and it is followed by nearly 150 pages of concurrences and dissents. Here's the full run down for those interested in the headcount:

HARDIMAN, Circuit Judge, filed the Opinion of the Court with whom CHAGARES, Chief Judge, and JORDAN, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, and CHUNG, Circuit Judges, join.

MATEY, Circuit Judge, filed a concurring opinion.  PHIPPS, Circuit Judge, filed a concurring opinion.  KRAUSE, Circuit Judge, filed an opinion concurring in the judgment, with whom ROTH, Circuit Judge, joins in part.  ROTH, Circuit Judge, filed an opinion concurring in the judgment, with whom KRAUSE and CHUNG, Circuit Judges, join in part. AMBRO, Circuit Judge, concurs in the judgment only. SHWARTZ, Circuit Judge, filed a dissenting opinion with whom RESTREPO, Circuit Judge, joins.

For those who celebrate Festivus traditions, it would appear the Third Circuit has served up some "feats of strength" as well as some "airing of grievances."  As for the basics, here is how Judge Hardiman's majority opinion starts and ends:

Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-inpossession” law — 18 U.S.C. § 922(g)(1) — violates his Second Amendment right to keep and bear arms.  We agree with Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that the principles underlying our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand....

Our decision today is a narrow one.  Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).  Range remains one of “the people” protected by the Second Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms.  More than two decades after he was convicted of foodstamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm.  The record contains no evidence that Range poses a physical danger to others.  Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his Second Amendment rights.  We will reverse the judgment of the District Court and remand so the Court can enter a declaratory judgment for Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

As I have mentioned in the past, Bryan Range's case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime.  Because this Range ruling creates a clear circuit split on the constitutionality of 18 U.S.C. § 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the US Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the Second Amendment in this particular "narrow" case.

Is attempted murder under New York law a "crime of violence" under federal law?

The question in the title of this post likely seems a bit ridiculous.  And yet this question is the issue being considered by the Supreme Court at oral argument this morning in Delligatti v. US.  To be precise, here is the (lengthy) question presented in the petitioner's brief: 

Under 18 U.S.C. § 924(c)(3)(A), a felony qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 

Courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action. In the decision below, the Second Circuit held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if it can be committed through inaction — such as by failing to provide medicine to someone who is sick or by failing to feed a child. 

The question presented is: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

The government's brief is more economical in its statement of the issue in Delligatti: "Whether attempted murder, in violation of the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. 1959(a)(5), is a crime of violence under 18 U.S.C. 924(c)(3)."  (The charge of attempted murder underlying petitioner’s Section 924(c) count was premised on petitioner’s commission of New York attempted second-degree murder.)

Though I expect "normies" could answer the question in the title of this post without difficulty, astute federal criminal lawyers likely know why this question is not so simple.  The so-called "categorical approach" to sorting out what are "crimes of violence" under federal law has been bedeviling lawyers and judges for decades now, and Delligatti is just the latest variation on the theme.  Helpfully, this recent Law360 analysis of the case, headlined "High Court 'Violent Crimes' Case Tangled Up In Hypotheticals," provides a detailed account of this tale as old as ugly jurisprudential time as well as the parties' arguments in Delligatti.  I recommend that piece in full, and it concludes with a call to Congress to jettison the mandatory minimum at issue here altogether:

Delligatti shows how the categorical approach relies on hairsplitting legal hypotheticals and reaches absurd results.... So long as the Supreme Court remains supportive of the categorical approach and requires its implementation when analyzing elements clauses, lower courts cannot simply get rid of the categorical approach.  However, Congress can get rid of Section 924(c), with minimal consequences.

As the federal defenders explained in their amicus brief, even without Section 924(c), those convicted of violent crimes will still face long sentences, "even if their crimes are not technically ones of 'violence.'"...  Even without mandatory sentences, judges can impose sentences that fit the specific circumstances of individual defendants. In some cases, this might reduce the costs of our overgrown carceral system.  And where it is warranted, decades-long incarcerations can still be imposed without Section 924(c), and without the time-wasting uncertainty caused by the categorical approach. 

After Delligatti, Congress should recognize that requiring hypertechnical arguments regarding enhancements leads to counterintuitive outcomes and unnecessarily long prison sentences, and repeal Section 924(c). 

I am not expecting Congress to get rid of 924(c) mandatory minimums anytime soon, but it will be interesting to see if SCOTUS is willing to keep advancing limiting constructions of this statute.

Notable new accounting of post-Bruen Second Amendment claims brought by 1,450 criminal defendants

This new Trace article, headlined "A Supreme Court Decision Claimed to Take Partisanship Out of Gun Cases. It Didn’t," provides a new accounting of Second Amendment cases since the Supreme Court transformed the applicable jurisprudence in its landmark 2022 Bruen decision.  The subtitle of the article highlights it general themes: "A Trace analysis of more than 1,600 rulings found that the Bruen decision has given judges remarkable leeway. The results have been starkly partisan."  

This article details that the vast majority of the post-Bruen rulings are in criminal cases, though I am not sure these reported data on these criminal cases make compelling the "starkly partisan" claim:

The Trace’s analysis identified 150 lawsuits seeking to overturn state assault weapons bans, age limits on buying firearms, licensing rules, and other gun restrictions. In these cases — many of which were brought by the National Rifle Association and other gun rights groups — Republican-appointed judges sided with plaintiffs 48 percent of the time. 

That is four times the rate of Democratic appointees, who did so in 13 percent of the cases they heard.

The remaining 1,450 rulings reviewed by The Trace involved criminal defendants, many of whom were using Bruen in an attempt to have their charges or convictions thrown out. In these cases, some Democratic judges have been sympathetic to arguments that gun regulations not only have little historical support but also disproportionately affect marginalized groups.

Democratic appointees have sided with gun rights claims in 30 out of the 525 criminal cases they’ve heard, or 6 percent. Two judges — Robert Gettleman and Staci Yandle, both in Illinois — alone issued 17 of those 30 rulings. By comparison, Republican-appointed judges ruled in favor of defendants in 22 out of 748 criminal cases, or 3 percent. (The remaining criminal cases were heard by nonpartisan magistrate judges.)

It seems there are two "outlier" Democratic appointees who may be rejecting many or most federal gun charges, whereas all other Democratic appointees are siding with gun defendants at nearly the exact same (very low) rate as Republican-appointed judges.  And, perhaps most notable, these Trace data show that, roughly speaking, there has been ten times as much post-Bruen Second Amendment litigation in criminal cases as in civil cases.

Another review of the jurisprudential mess of the Second Amendment ... and originalism's deep challenge

Adam Liptak's latest Sidebar column in the New York Times, headlined "Supreme Court’s Gun Rulings Leave Baffled Judges Asking for Help," is focused on the mess that is Second Amendment jurisprudence.  I recommend the piece in full, and here are excerpts: 

Federal appeals courts were busy this summer trying to make sense of the Supreme Court’s recent Second Amendment decisions. It has not gone well.  In 2022, Justice Clarence Thomas introduced a new test to assess the constitutionality of laws meant to address gun violence.  Such laws must be struck down, he wrote, unless they are “consistent with the nation’s historical tradition of firearm regulation.”

Last month, Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., writing for six judges, said that approach had created “a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”  He added: “Courts, tasked with sifting through the sands of time, are asking for help.”....

In June, in United States v. Rahimi, the Supreme Court upheld a federal law that made it a crime for people subject to domestic violence restraining orders to have guns.  In his majority opinion, Chief Justice John G. Roberts Jr. looked to history in very general terms and said lower courts bore the blame for the confusing state of the law.  “Some courts have misunderstood the methodology of our recent Second Amendment cases,” the chief justice wrote. “These precedents were not meant to suggest a law trapped in amber.”

Chief Judge Diaz was not convinced. The Rahimi decision, he wrote, “offered little instruction or clarity.”... Judge Pamela Harris of the Fourth Circuit, speaking at a conference on Saturday at William & Mary Law School, said appeals court judges faced a perplexing task.  “The trick is that we all need to go back in time and become historians,” she said. “And short of that, I find this to be very, very challenging.”

She gave an example. “I just got two briefs,” she said. “One brief says, ‘This happened in history.’ The other says, ‘No, it didn’t.’”

“What do I do?” she asked.

I noted in this post a few days ago that the three federal circuit courts which have weighed in on what Rahami and the Second Amendment means for federal felon-in-possession law have reached three different conclusions using, in essence, three different interpretive methodologies.  And this comes after the Supreme Court has had three major opinions embracing an originalist approach to the Second Amendment (Heller, Bruen and Rahimi), with the latter two seemingly serving as a bold statement that lower courts could not properly understanding and apply the Supreme Court's prior originalist rulings.

I do no want to go too far in suggesting that modern Second Amendment developments show that the originalist jurisprudential emperors wear no clothes.  But I do think the problems is these gun cases reflect the unavoidable difficulties in turning the wholesale concepts of originalism into detailed retail rules for precises case-by-case application and adjudication.  And these problems seem especially acute in various criminal justice settings where there are literally thousands of factual and legal variations being litigated in federal and state courts nationwide all the time.  (And that's why, as I have discussed here and here, I suspect some of the current conservative Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket.) 

Notable state court ruling finds violation of Iowa Constitution prosecuting gun possession by "nonviolent drug-offense felons"

In the wake of Bruen and Rahimi, I have primarily sought to follow federal Second Amendment litigation over various provisions of federal criminal gun dispossession laws.  But a kind reader has sent me a notable new state court ruling on this topic, Iowa v. Dickson, No. FECR020524 (Iowa D. Ct. Sept. 13, 2024).  The full ruling, which can be downloaded below, runs a full 31-pages and covers lots of state and federal law.  Here are a few excerpts which highlight why its merits a full read:

This Court ... generally finds [persuasive] the historical analysis set forth in a dissenting opinion by then-Judge Barrett in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).... [showing] that history does not support a conclusion that a legislature may disarm all felons — violent and nonviolent alike — merely on account of their status as felons.  But this Court is not convinced that the historical evidence discussed in Jackson and then-Judge Barrett's dissent in Kanter is really best read as establishing the principle that a legislature may, consistent with the right to keep and bear arms, prohibit the possession of arms by all of the members of any group which the legislature, constrained only by its own discretion, deems to be dangerous.

The Court's doubt about the conclusion is based in part on common sense.  If that broad reading of the principle reflected in the historical evidence is correct, then, for example, Congress presumably could pass a statute categorically prohibiting all persons who are not members of the military or sworn peace officers from keeping and bearing arms, and so long as that statute contained a statement declaring that the law arose from Congress's conclusion that persons other than members of the military and sworn peace officers are too dangerous to possess firearms, the prohibition would be constitutional under the Second Amendment.  It seems to this Court exceedingly unlikely that the right to keep and bear arms which the Second Amendment protects has ever been understood to permit firearms regulations of that kind, or to be consistent with a principle from which such a regulation could arise....

Accordingly, the Court is not persuaded that our General Assembly may, consistent with the right to keep and bear arms recognized in article 1, section 1A, disarm any category of individuals whom the General Assembly deems to be dangerous.  And the Court therefore concludes that the State has failed to carry its burden to "affirmatively prove that" § 724.26(1), as applied to nonviolent drug-offense felons like the Defendant here, "is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Bruen, 597 U.S. at 19....

The Defendant's prior felony convictions are for nonviolent drug distribution offenses.  Nothing about such offenses inherently raises a suspicion that a person who has committed such offenses is a threat to public safety.  And the State has produced no evidence suggesting that one convicted of such offenses is likely to be violent or dangerous.

Accordingly, the Court is unable to conclude that that § 724.26(1), to the extent that it disarms nonviolent felons like the Defendant, is narrowly tailored to serve a compelling government interest.  And as such, the Court concludes that § 724.26(1) is unconstitutional as applied to the Defendant, under article 1, section 1A of the Iowa Constitution.

Download Order granting motion to dismiss filed 9-13-24 Iowa v. Dickson 922g

New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law

In my very first post after reporting on the Supreme Court's 2022 landmark Second Amendment case, Bruen, I wondered on this blog "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?".  Two years later with lots and lots of lower court litigation and the follow-up SCOTUS case of Rahimi, it seems quite clear now the answer is "yes," felon-in-possession criminal gun prohibitions are "constitutional suspect," but the answer as to exactly whether and when they may be unconstitutional remains quite unclear.  The latest data point for these discussion comes from this new article from The Trace, fully headlined "More Than a Thousand Felons Have Challenged Their Gun Bans Since the Supreme Court’s Bruen Decision: The Trace reviewed more than 2,000 court cases that cited Bruen and found that no group has used the decision more often than people whose felony records bar them from possessing guns."  And here are some excerpts:

Bruen set off a wave of legal challenges to gun restrictions across the country, but no other group has taken to the courts as frequently as people with felony convictions, who are prohibited from possessing guns under a federal statute known as the felon gun ban.

The Trace reviewed more than 2,000 federal court decisions that cited Bruen over the past two years. More than 1,600 of them answered challenges to a wide variety of federal, state, and local gun laws — from assault weapons restrictions to bans on guns at the U.S. Post Office. The majority — some 1,100 — of the decisions included a challenge to the felon gun ban, making it the single most frequently contested statute by far.

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. 

Those decisions, albeit rare and frequently narrow, chart new legal pathways for other defendants and judges to follow, meaning that more people convicted of felonies could have their cases thrown out.  Over the past two years, judges have issued on average two Bruen-related rulings each working day, the majority of which have been on challenges to the felon gun ban. And the pace is increasing....

The sheer volume of Bruen challenges to the felon gun ban has the potential to gum up the legal system. Margaret Groban, a former federal prosecutor who focused on gun crimes and domestic violence cases, described the fallout as “a mess.”   “It does take up a lot of resources,” she said. “There are cases to prosecute, and then you spend all your time defending the cases that have already been prosecuted.”...

A felon in possession of a firearm is one of the most commonly charged federal crimes, according to the U.S. Sentencing Commission. In 2022 and 2023, more than 7,000 people with felony records were convicted of this crime — in the federal court system alone.  The majority of these defendants were Black....

“I represent a lot of kids who have never in their lives even fired a gun,” said Christopher Smith, a public defender in the Bronx. “But it’s a dangerous neighborhood.” His clients, he added, would rather be tried for carrying an illegal gun than killed for not having one to defend themselves. Bruen has shifted the legal strategy in gun possession cases, particularly for clients who had prior felony convictions, Smith said. “The biggest change is now we just write a different motion in gun cases, where we challenge on Second Amendment grounds.”

Fifth Circuit panel declares unconstitutional application of federal prohibition on gun possession by “unlawful user” of controlled substances

A Fifth Circuit panel today declared unconstitutional a federal gun possession prohibition as applied to a "non-violent, marijuana smoking gunowner." The unanimous panel ruling in US v. Connelly, No. 23-50312 (5th Cir. Aug. 28, 2024) (available here), starts and ends this way:

Paola Connelly is a non-violent, marijuana smoking gunowner.  El Paso police came to her house in response to a “shots fired” call. When they arrived, they saw John, Paola’s husband, standing at their neighbor’s door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. A sweep revealed that the Connellys’ home contained drug paraphernalia and several firearms, including firearms owned by Paola.  There was no indication that Paola was intoxicated at the time.

Paola was charged with violating: (1) 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2) 18 U.S.C. § 922(d)(3) by providing firearms and ammunition to an unlawful user of a controlled substance. Paola argued in a motion to dismiss, and the District Court ultimately agreed, that §§ 922(g)(3) and 922(d)(3) were facially unconstitutional and that § 922(g)(3) was unconstitutional as applied to her under the Second Amendment.

This appeal asks us to consider whether Paola’s Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation.  The short of it is that our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon (and for that reason Paola’s facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage.  Nor, contrary to what the government contends, do restrictions on the mentally ill or more generalized traditions of disarming “dangerous” persons apply to nonviolent, occasional drug users when of sound mind.  We AFFIRM as to Paola’s as-applied challenge and REVERSE as to her facial challenges....

Paola’s § 922(g)(3) charge is inconsistent with our history and tradition of firearms regulations for the reasons discussed above, so we AFFIRM the judgment of dismissal as to her as-applied challenge.  But that holding is narrow. There undoubtedly exist circumstances where § 922(g)(3) may apply constitutionally, such as when it bans a presently intoxicated person from carrying firearms, so we REVERSE as to Paola’s facial challenge.  Finally, we REVERSE as to Paola’s facial challenge to § 922(d)(3).

Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"

A panel of the Sixth Circuit handed down an interesting and intricate opinion in US v. Williams, No. 23-6115 (6th Cir. Aug. 23 , 2024) (available here), which rejects a Second Amendment challenge to a federal illegal gun possession charge by a "dangerous" person with a felony record. The lengthy opinion for the Court concludes with this very helpful summary:

To summarize, we hold today that § 922(g)(1) is constitutional on its face and as applied to dangerous people.  Our nation’s historical tradition confirms Heller’s assumption that felonin-possession laws are “presumptively lawful.”  The history reveals that legislatures may disarm groups of people, like felons, whom the legislature believes to be dangerous — so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.

A person convicted of a crime is “dangerous,” and can thus be disarmed, if he has committed (1) a crime “against the body of another human being,” including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous.

A more difficult category involves crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements. But such a case is not before us today.

In any event, district courts need not find a “categorical” match to a specific common-law crime to show that a person is dangerous. Rather, district courts should make fact-specific dangerousness determinations after taking account of the unique circumstances of the individual, including details of his specific conviction. Finally, when considering an individual’s dangerousness, courts may evaluate a defendant’s entire criminal record — not just the specific felony underlying his section 922(g)(1) prosecution.

Here, Williams availed himself of his constitutionally required opportunity to show that he is not dangerous—albeit after he violated the law, not before. Because his record demonstrates that he is dangerous, we reject his challenge. We thus affirm.

By my read, this opinion means that any and every person within the Sixth Circuit criminal charged with illegal firearm possession under 922(g)(1) — and perhaps other federal and state gun control provisions? — can now seek dismissal of that charge by making "an individualized showing that he himself is not actually dangerous."   In addition, I wonder if this Williams opinion might now provides a means for the millions of persons with non-violent felony convictions in the Sixth Circuit to seek a declaratory judgment that they are "not actually dangerous" and thus have a Second Amendment right to possess (and purchase) firearms like all their fellow citizens.

A few of many rior related posts:

• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi 
• Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional 
• After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possesion charge

New Third Circuit panel ruling rejects Second Amendment challenge to felon-in-possession charge for person on supervised release

The Third Circuit issued a notable panel ruling yesterday that rejected a Second Amendment claim raised by a person convicted of a federal felon-in-possession charge in Third Circuit in US v. Moore, No. 23-1843 (3d Cir. Aug. 2, 2024) (available here). Here is the start of the opinion and a few key passages:

This appeal arises under the Second Amendment to the United States Constitution and presents a question of first impression in this Court.  Does a convict completing his sentence on supervised release have a constitutional right to possess a firearm?  The answer is no....

The bottom line is this: during the founding era, forfeiture laws temporarily disarmed citizens who had committed a wide range of crimes.  Convicts could be required to forfeit their weapons and were prevented from reacquiring arms until they had finished serving their sentences.  This historical practice of disarming a convict during his sentence — or as part of the process of qualifying for pardon — is like temporarily disarming a convict on supervised release. After all, “[t]he defendant receives a term of supervised release thanks to his initial offense, and . . . it constitutes a part of the final sentence for his crime.” United States v. Haymond, 588 U.S. 634, 648 (2019) (plurality opinion); see also United States v. Island, 916 F.3d 249, 252 (3d Cir. 2019) (“The supervised release term constitutes part of the original sentence.”) (cleaned up).  Consistent with our Nation’s history and tradition of firearms regulation, we hold that convicts may be disarmed while serving their sentences on supervised release....

Our conclusion is bolstered by the Supreme Court’s recent decision in Rahimi.  As the Court explained, early American surety and affray laws establish the principle that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Rahimi, 144 S. Ct. at 1901.  The Court applied that principle to uphold the federal law prohibiting an individual subject to a domestic violence restraining order from possessing firearms. See id. (citing 18 U.S.C. § 922(g)(8)). Taken together, the early American forfeiture laws — which required forfeiting property in general and arms in particular — likewise yield the principle that a convict may be disarmed while he completes his sentence and reintegrates into society. And this principle justifies applying § 922(g)(1) to Moore, a convict on supervised release.

Interestingly, this Moore ruling rejecting a Second Amendment challenge to a § 922(g)(1) conviction was authored by Judge Hardiman, the same Judge who authored the majority opinion in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (discussed  here), which sustained a Second Amendment challenge to a § 922(g)(1) conviction (albeit before the Supreme Court's recent Rahimi decision) .  Notably, the Moore ruling does not cite or mention Range, perhaps suggesting the court here sees a critical difference between criminalizing gun possession for a period of supervised release and criminalizing gun possession for life based on any and every felony.

"Guns, Judges, and Trump"

The title of this post is the title of this notabe new article authored by Rebecca Brown, Lee Epstein and Mitu Gulati. Here is its abstract:

This Essay reports data on the impact of Bruen and its predecessor, Heller, on gun rights cases.  Put mildly, the impact was significant, increasing not only the number of cases in the courts but also the partisanship displayed in the application of Bruen.  And that partisanship increase was particularly large on the part of Trump-appointed judges. The Supreme Court has now decided Rahimi, its first opportunity to apply Bruen.  While the Court's new decision blunted some of the sharpest concerns raised by Bruen, it did not eliminate the key concern, recommitting itself to a test that places considerable unguided discretion in judges, inviting partisan bias.  Thus, the revolution that the Court has wrought through Bruen and Heller seems only to have just begun.

New post-Rahimi SG filing urges SCOTUS to "grant plenary review to resolve Section 922(g)(1)’s constitutionality"

In this post yesterday, I highlighted why the Supreme Court's Second Amendment ruling in US v. Rahimi (basics here), did not make it any easier to figure out if the most prosecuted federal criminal gun prohibition, 18 USC § 922(g)(1), is or is not constitutionally sound in many (most?) cases.  This provision, often described as "felon in possession," formally prohibits all sorts of firearm activity and possession for anyone and everyone  who has "been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."  In the comments to the post, the discussion turned to some of the pending cases on this issue and speculated about what the Justices might do with these cases.

Helpfiully, a kind reader made sure I did not miss this new SCOTUS filing from US Solicitor General covering five pending cases challenging the constitutionality of the broad "felon in possession" prohibition.  Here is how this filing starts: 

These five cases present the question whether 18 U.S.C. 922(g)(1), the statute prohibiting a person from possessing a firearm if he has been convicted of “a crime punishable by imprisonment for a term exceeding one year,” ibid., violates the Second Amendment.  In each case, we asked this Court to hold the petition for a writ of certiorari pending its decision in United States v. Rahimi, No. 22-915 (June 21, 2024).  Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1)’s constitutionality.  In particular, the Court should grant the petitions in Doss, Jackson, and either Range or Vincent; consolidate the granted cases for briefing and argument; and hold the remaining petitions pending the resolution of the granted cases.  If the Court chooses not to take that course, it should grant, vacate, and remand (GVR) in Range and deny certiorari in the remaining cases.

The rest of the filing makes the case for resolving this constitutional question in short order, and I was pleased to see this paragraph highlighting the same recent data from the US Sentencing Commission that I flagged in my post:

Although Rahimi undermines the reasoning of the decisions holding Section 922(g)(1) invalid, the present conflict is unlikely to resolve itself without further intervention by this Court. And the costs of deferring this Court’s review would be substantial: Disagreement about Section 922(g)(1)’s constitutionality has already had widespread and disruptive effects. Out of the approximately 64,000 criminal cases reported to the Sentencing Commission in Fiscal Year 2022, more than 7600 involved convictions under Section 922(g)(1). See U.S. Sentencing Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses 1.  Those convictions accounted for nearly 12% of all federal criminal cases.  See ibid. Uncertainty about the statute’s constitutionality thus affects a significant proportion of the federal criminal docket.

Based on part on the vague (and sometimes contradictory) language in Rahimi, I agree wholeheartedly that "the present conflict is unlikely to resolve itself without further intervention" by the Supreme Court. For a variety of reasons, I am fearful that SCOTUS will GVR all these cases and try to keep dodging this issue. But it was obvious to me from the day Bruen was decided (see my post here from two years ago) that an originalist turn in Second Amendment jurisprudence served to make all broad felon-in-possession criminal statutes constitutionally suspect.  SCOTUS has let this critical post-Bruen issue — which impacts roughly one in every six (non-immigration) federal propecutions as well as the Second Amendment rights of up to 10% of the US population — develop (and fester) long enough.  The Justices will have to grant cert on this issue evetually, why not now?

A few (of many) prior related posts (recent and past):

• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender 
• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• "Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs"
• Imagining post-Heller federal felon-in-possession litigation (from 2008)
• "Why Can’t Martha Stewart Have a Gun?"

Supreme Court, by an 8-1 vote, rejects Second Amendment challenge to § 922(g)(8)

The Supreme Court this morning in US v. Rahimi, No. 22-915 (S. Ct. June 21, 2024) (available here), reversed a Fifth Circuit ruling that the Second Amendment was violated by a federal criminal law that prohibits any persons under a domestic violence restraining order from possessing a gun. Chief Justice Roberts authored a relatively short opinion for the Court and it starts and ends this way:

A federal statute prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual. 18 U.S.C. §922(g)(8). Respondent Zackey Rahimi is subject to such an order. The question is whether this provision may be enforced against him consistent with the Second Amendment....

In Heller, McDonald, and Bruen, this Court did not “undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” Bruen, 597 U. S., at 31.  Nor do we do so today.  Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.

The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Lengthy concurrences -- one by Justice Sotomayor joined by Justice Kagan and separate ones by Justice Gorsuch, by Justices Kavanaugh, by Justice Barrett and by Justice Jackson -- provide a whole lot more for Second Amendment folks to sort through. And Justice Thomas has a lengthy dissent that is of note in part because he was the author of th landmark Bruen decision.

I am certain a lot of other folks who are expert in the Second Amendment (as well as those who are not) will have a lot to say about Rahimi.  But the closing "only this" statement in the opinion for the Court leads me to think that litigation over the Second Amendment is not going to get much easier for lower courts after this ruling. 

Interesting 6-3 split in ruling for feds in reach of ACCA covering state drug convictions

Regular readers know the Armed Career Criminal Act (ACCA) is a messy statute that has divided the Supreme Court for decades regarding how to categorize various prior convictions as possible triggers for ACCA's 15-year mandatory minimums.  Another divided Supreme Court opinion was handed down in this arena today  in Brown v. US, No. 22–6389 (S. Ct. May 23, 2024) (available here). The opinion for the Court was authored by Justice Alito, and it starts this way:

These cases concern the application of the Armed Career Criminal Act (ACCA) to state drug convictions that occurred before recent technical amendments to the federal drug schedules.  ACCA imposes a 15-year mandatory minimum sentence on defendants who are convicted for the illegal possession of a firearm and have a criminal history that is thought to demonstrate a propensity for violence.  These defendants are subject to ACCA’s enhanced penalty if, among other things, they have “three previous convictions” for “a serious drug offense.” 18 U.S.C. §924(e)(1).  For a state crime to qualify as a “serious drug offense,” it must carry a maximum sentence of at least 10 years’ imprisonment, and it must “involv[e] . . . a controlled substance . . . as defined in section 102 of the Controlled Substances Act” (CSA). §§924(e)(1), (2)(A)(ii). The CSA, in turn, includes five schedules of controlled substances and provides that these schedules must be updated each year by the Attorney General. 84 Stat. 1245, 1247, 21 U. S. C. §§811, 812.

The two cases now before us present the question whether a state crime constitutes a “serious drug offense” if it involved a drug that was on the federal schedules when the defendant possessed or trafficked in it but was later removed.  We hold that such an offense qualifies. 

Intriguingly, five other Justices joined Justice Alito's opinion for the Court, but not the "usual suspects" when there are 6-3 divides on this Court. In this iteration, Justice Sotomayor joins the marjoirty in this ruling for the government, whereas Justice Jackson wrote a dissenting opinion, in which Justice Kagan and Gorsuch joined (though the latter joined only as to Parts I, II, and III of the dissent). Here is how the dissent gets started:

The Court maintains that, “[s]tanding alone,” the text of 18 U. S. C. §924(e)(2)(A)(ii) “does not definitively answer” the question presented in these cases. Ante, at 7. Instead, says the majority, we must look beyond the text to precedent, statutory context, and purpose — which apparently converge to persuade the majority that §924(e)(2)(A)(ii) requires sentencing courts to apply the drug schedules in effect at the time of a defendant’s prior state drug conviction when determining the applicability of the 15-year mandatory minimum in the Armed Career Criminal Act (ACCA). But the relevant text does definitively answer the question presented here. And it establishes that courts should apply the drug schedules in effect at the time of the federal firearms offense that triggers ACCA’s potential application. Nothing else — not precedent, context, or purpose — requires a different result. Therefore, I respectfully dissent.

I am hopeful, but not especially optimistic, that a faculty meeting and other commitments will not prevent me from fiding time in short order to review these opinions closely.

Split Ninth Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen

Yesterday, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), to become the second circuit to find that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition in on gun possession by nonviolent felons.   The 60-page opinion for the court was authored by Judge Bea, and here is part of how it starts:

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.”  Steven Duarte, who has five prior non-violent state criminal convictions — all punishable for more than a year — was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car.  Duarte now challenges the constitutionality of his conviction.  He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 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.  We agree.

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge.  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....

At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an “arm” within the meaning of the Second Amendment’s text and that Duarte’s “proposed course of conduct — carrying [a] handgun[] publicly for selfdefense”— falls within the Second Amendment’s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32.  The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry.  We do not share that view.  Bruen and 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.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment’s publicly understood meaning also confirms that the right to keep and bear arms was every citizen’s fundamental right....

At Bruen’s second step, we conclude that the Government has failed to prove that § 922(g)(1)’s categorical prohibition, as applied to Duarte, “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. Bruen, 597 U.S. at 19. The Government put forward no “well-established and representative historical analogue” that “impose[d] 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. Id. at 29, 30. We therefore vacate Duarte’s conviction and reverse the district court’s judgment entering the same. 

The 10-page dissent authored by Judge Milan Smith concludes this way:

The majority reads Bruen, a Supreme Court decision reviewing New York’s gun licensing regime, as an invitation to uproot a longstanding prohibition on the possession of firearms by felons. Bruen extends no such invitation.  As Justice Alito cautioned, Bruen decides “nothing about who may lawfully possess a firearm.” Bruen, 597 U.S. at 72 (emphasis added).

One day — likely sooner, rather than later — the Supreme Court will address the constitutionality of § 922(g)(1) or otherwise provide clearer guidance on whether felons are protected by the Second Amendment. But it is not our role as circuit judges to anticipate how the Supreme Court will decide future cases.... Until we receive contrary definitive guidance from the Supreme Court, or from a panel of our court sitting en banc, we are bound by our decision in Vongxay.

I respectfully dissent and express the hope that our court will rehear this case en banc to correct the majority’s misapplication of Bruen.

The 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). 

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amdndment test is to be applied to broad federal criminal gun control laws.  I would expect coming Rahimi opinion will lead to the Ninth 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.

Is Rahimi an "easy case" for any true originalist to rule for the criminal defendant and against the prosecution?

I have not written much recently about US v. Rahimi, in part because there is not much to write about while we wait to see how the Supreme Court chooses to apply its (new originalist) Second Amendment test to the federal criminal firearm prohibition of gun possession by persons subject to domestic violence restraining orders, 18 USC § 922(g)(8).  Moreover, based on the November Rahimi SCOTUS oral argument, it seemed like a majority of the Justices were quite disinclined to agree with the Fifth Circuit's view that a criminal bar on gun posession by those subject to domestic violence restraining orders is unconstituional. 

But Nelson Lund has this notable new New York Times opinion piece, headlined "The Fidelity of ‘Originalist’ Justices Is About to Be Tested," which prompted the quesiton in the title of this post.  Here are excerpts from the piece:

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 subject of the case, Zackey Rahimi, however, is an unsympathetic defendant.  His ex-girlfriend obtained a protective order against him on the ground that he had assaulted her, and he has been charged with several crimes involving the misuse of firearms.  Although he apparently had not been convicted of any offenses when the restraining order was issued, that order immediately and automatically criminalized his possession of a firearm under federal law.

If the court pretends that a historical tradition of such laws existed, 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.”

Imagine that an overwrought woman called her ex-boyfriend and threatened to scratch his eyes out.  If a state court ordered her to refrain from making such calls and from physically attacking him, the federal statute at issue in Rahimi would automatically make her a felon if she kept a gun in her own home.  And that would be true even if she had good reason to fear a violent attack from the ex-boyfriend or his criminal associates.  But no court would uphold a statute that made this restraining order a sufficient basis on which to criminalize her possession of a telephone.  We will soon find out whether the Supreme Court takes the Second Amendment as seriously as the First.

I generally do not find the analogy between guns and telephones (and between the Second and First Amendments) to be all that apt.  But I do find quite notable the suggestion that any true originalists should find it "easy" to determine the unconstitutionality of any laws that threaten to punish criminally any "American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes."  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.

"Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs"

The title of this post is the title of this new article now available via SSRN authored by Laura Ginsberg Abelson.  Here is its abstract:

The legal landscape surrounding firearm possession is evolving rapidly.  In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle and Pistol Association v. Bruen.  Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with one notable exception: felon-in-possession laws.  This paper examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior, possession of a firearm, that is constitutionally protected for everyone else.

I argue that as the Second Amendment expands to protect more and more firearm possession, a dichotomy has arisen in which those who live in the communities most heavily targeted by the war on drugs of the 1980s and 1990s are increasingly becoming virtually the only Americans for whom firearm possession is illegal.  I examine the history and development of felon-in-possession statutes to show that they were not enacted with a clear purpose, and are not narrowly tailored to criminalize the most dangerous behavior. Further, I show how existing federal enforcement priorities and the structure of the United States Sentencing Guidelines compound the harms of the war on drugs by punishing individuals with prior drug offenses most harshly, even when there is limited evidence to suggest that they pose the greatest danger from firearm possession.

The Supreme Court is currently considering how to assess the question of danger in relation to the Second Amendment in United States v. Rahimi.  I argue that as Second Amendment jurisprudence evolves, prosecutors and legislators must be cognizant of the lasting effects of the war on drugs, and question the assumption that a prior felony conviction is an accurate proxy for dangerousness.

"Going Federal, Staying Stateside: Felons, Firearms, and the ‘Federalization’ of Crime"

The title of this post is the title of this new paper authored by Jonathan Abel now available via SSRN.  Here is its abstract:

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers.  Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity.  Yet, no one has obtained the state-court data needed to substantiate these comparisons.  This Article fills that gap with an examination of the crime of being a felon in possession of a firearm, an offense that now accounts for nearly 10% of the federal criminal docket.

The Article makes three main contributions to the literature.  First, it shows how the literature’s claims about the superiority of federal prosecutions (compared to state ones) are rarely substantiated by data about actual state court prosecutions.  In essence, the literature considers only the cases that went federal, not the far more numerous cases that could have gone federal yet stayed in state court.  Second, using a novel case study of all the federal and state felon-in-possession prosecutions in one of the nation’s largest counties — Alameda County, California — the Article tests several bedrock claims about federalization.  The testing leads to surprising results regarding conviction rates, sentencing severity, and racial disparities in charging practices.  Finally, the Article connects these findings to the larger problem of academia’s fixation on all things federal — a fixation that comes at the expense of state and local topics.

"One Year Post-Bruen: An Empirical Assessment"

The title of this post is the title of this new article authored by Eric Ruben, Rosanna Smart and Ali Rowhani-Rahbar just published in the Virginia Law Review Online. Here is its abstract:

In the year after New York State Rifle & Pistol Association v. Bruen, a steady stream of highly publicized opinions struck down a wide range of previously upheld gun restrictions.  Courts declared unconstitutional policies ranging from assault weapon bans to domestic abuser prohibitions to various limits on publicly carrying handguns.  Those opinions can frequently be paired with others reaching the opposite conclusion.  The extent to which Bruen shook up the Second Amendment landscape and has caused widespread confusion in the courts is starting to come into focus.

This Essay measures Bruen’s aftereffects by statistically analyzing a year’s worth of Second Amendment opinions.  We coded more than 450 challenges for dozens of variables including both case and judge characteristics, resulting in a comprehensive post-Bruen Second Amendment dataset.  The findings of our analysis provide an objective basis for assessing the upheaval wrought by Bruen and highlight both unanswered questions and immense challenges for Second Amendment doctrine in the coming years.

"Refining the Dangerousness Standard in Felon Disarmament"

The title of this post is the title of this essay recently posted to SSRN and authored by Jamie G. McWilliam. Here is its abstract:

For a regulation of the Second Amendment right to be upheld, Bruen requires a showing of historically analogous laws.  In the context of felon disarmament, the primary group of laws that the government has put forward involve disarming classes that the government deemed dangerous, such as Loyalists, Catholics, and Blacks.  While the theme of dangerousness within these laws is strong, their prejudicial nature is concerning.  How can a court rely on them without implicitly importing a prejudicial analysis?

This essay argues that the takeaway from these historical analogues should be a broad theme of dangerousness, rather than the particular conceptions embodied therein.  Instead, to determine the scope of the dangerousness standard, courts should look to the principles embodies by the Second Amendment itself — in particular, defense against immediate personal violence.  Ultimately, this essay suggests that only those who have actually created the kind of danger that the amendment was meant to protect against — i.e., who have perpetrated physical violence — should be disarmed.  This standard may defend against potentially prejudicial discretion, while simultaneously upholding Second Amendment rights and protecting our community.

"Firearms Carceralism"

The title of this post is the title of this notable new article authored by Jacob Charles and now available via SSRN. Here is its abstract:

Gun violence is a pressing national concern.  And it has been for decades.  Throughout nearly all that time, the primary tool lawmakers have deployed to staunch the violence has been the machinery of the criminal law.  Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun offenders.  This Article spotlights and specifies this approach — what it calls “firearms carceralism” — and details how a decades-long bipartisan consensus generated a set of state-centered solutions to gun violence that has not meaningfully impacted the problem.  Instead, those policies have exacerbated racial inequity and compounded civic and community harms.

The Article traces the escalating punitive measures visited on gun offenders over the past half century.  It first peers down into one microcosmic exemplar of firearms carceralism etched into federal mandatory minimum provisions and Supreme Court case law magnifying those penalties.  It describes how criminal justice reforms have traditionally excluded those whose offenses are categorized as violent, and specifically and emphatically those who offend with guns by their side.  It then draws out promising hints of a path to including gun offenders in efforts to reform the criminal legal system.  Most fundamentally, however, the Article wages a sustained critique of the system of firearms carceralism that fronts aggressive law enforcement and draconian terms of incarceration.  It describes the unjustifiable breadth and depth of these practices and the harmful, racialized, and exclusionary values they simultaneously draw from and reinscribe.

Finally, the Article argues in favor of three alternative paths for equitable peace and safety.  First, it outlines private sector steps to, for example, dampen illicit firearms supply.  Second, it highlights civil legal interventions like red flag laws and tort lawsuits against irresponsible gun sellers.  Third, and most prominently, it underscores the promise of community violence intervention and restorative justice programs to bring meaningful safety apart from the carceral tools of coercive control.

Some division in headlines covering SCOTUS divisions in ACCA drug priors cases

I flagged here yesterday the Supreme Court's oral arguments scheduled for today in the ACCA cases of Brown and Jackson.  Like so many ACCA cases, the task here of sorting out what prior drug offenses trigger ACCA's 15-year mandatory minimum prison term for illegal gun possession is not for the faint of heart.  The full 85 minutes of argument can be accessed here, and I welcome thoughts about where the Court may seem headed.  The press accounts of the argument, partially linked below, seem to highlight the Justices' division though also suggest that the defense seem perhaps more likely to prevail:

From Bloomberg Law, "Justices Back Criminal Defendants in Firearm Sentencing Rule"

From Courthouse News Service, "Justices split over longer sentences for defunct drug charges"

From Law360, "Justices Hear Dueling Rules In ACCA Drug Definition Case"

From the New York Times, "Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes"

From the Washington Examiner, "Supreme Court divided on how firearm sentencing law applies to criminal drug offenders"

Federal court rules Second Amendment precludes felon-in-possession prosecution for defendant facing 15-year ACCA mandatory minimum

I have not sought to keep track of all the on-going litigation in district courts over whether federal felon-in-possession prosecutions under 18 USC § 922(g)(1) are still constitutional after Bruen.  But this new story in the Chicago Tribune, headlined "Chicago judge rules federal statute barring felons from possessing guns is unconstitutional but says it’s a ‘close question’," seemed notable because it appears that a federal district judge in Chicago has concluded that it violated the Second Amendment to prosecute for gun possession someone who would qualify for the Armed Career Criminal Act's 15-year mandatory minimum federal prison term.  Here are some of the reported details:

As a five-time convicted felon, Glen Prince was facing a mandatory minimum 15 years behind bars when he was charged in federal court with being a felon in possession of a handgun stemming from an armed robbery on CTA train in 2021. Instead, Prince’s case was tossed out earlier this month by a federal judge who ruled the statute barring felons from possessing handguns is unconstitutional in light of a recent U.S. Supreme Court decision.

The ruling by U.S. District Judge Robert Gettleman is the first of its kind to come down in Chicago’s federal court and joins a host of other similar cases that have thrown the decades-old law into a sort of legal limbo as the issue works its way back to the high court. The implications are particularly large in Chicago, where there are hundreds of pending felon-with-firearm cases stemming largely from the U.S. attorney’s office efforts to throw federal law enforcement resources into the fight against the city’s relentless gun violence.

Gettleman’s Nov. 2 ruling in Prince’s case was immediately appealed by the U.S. attorney’s office. The 7th Circuit U.S. Court of Appeals has set a Dec. 19 deadline for prosecutors to file a brief, court records show. It contradicts a handful of recent rulings by other district judges here upholding the felon-with-firearm law, saying that Second Amendment protections on gun possession have traditionally applied only to “law-abiding citizens.”

On the national level, the U.S. Justice Department last month urged the Supreme Court to overturn a lower-court ruling in Philadelphia that the law violated the constitutional rights of a man who possessed a weapon after pleading guilty years earlier to food-stamp fraud. The Biden Administration argued in its petition that the ruling conflicts decisions from two other appeals courts upholding the ban and “opened the courthouse doors to an untold number of future challenges by other felons.”...

In his opinion throwing out the charge against Prince, Gettleman wrote that while the government has historically prohibited certain people from possessing guns, prosecutors had not met their burden “to prove that felons are excluded from ‘the people’ whose firearm possession is presumptively protected by the plain text of the Second Amendment.”

Gettleman said the blanket ban on felons having guns “imposes a far greater burden” on gun rights than other historical categorical exclusions, such as one during the Revolutionary War when “individuals who refused to declare a loyalty oath to the emerging government” were barred from having firearms. The judge also wrote the fact that modern guns are more deadly and violence is more prevalent in today’s society doesn’t “justify a different result.”

“This nation’s gun violence problem is devastating, but does not change this result under Bruen, which this court finds rests on the severity of (the felon-with-firearm law) rather than its categorical prohibition.” Gettleman did, however, note the issue was a “close question” in his mind, as “violence plagues our communities and that allowing those who potentially pose a threat to the orderly functioning of society to be armed is a dangerous precedent.”

Prince, 37, was ordered released from the Metropolitan Correctional Center the day after Gettleman’s decision — but he didn’t walk free, records show. Court records show Chicago police arrested him at the jail at 71 W. Van Buren St. on new charges filed in Cook County accusing him of being an armed habitual criminal. He’s now being held without bond in the Cook County Jail.

According to the charges filed in federal court, Prince was a suspect in the armed robbery of three men on a CTA train in September 2021. After following the usage of a Ventra card stolen during the robbery, police arrested Prince on Sept. 12, 2021, on a CTA train platform in the 200 block of South State Street. He was allegedly carrying a loaded 9mm Smith and Wesson handgun as well as a fully loaded magazine, cocaine, and the victims’ Ventra card. He was originally charged in Cook County with aggravated unlawful use of a weapon by a felon, but those charges were dropped by state prosecutors after the federal indictment was filed last year, records show.

Prince’s criminal history includes three other armed robbery convictions as well as 2014 conviction for aggravated battery to a police officer, court records show.... Prince’s federal case was among more than 600 similar cases filed by the U.S. attorney’s office over the past five years where investigations by Chicago police and other local law enforcement are later removed to U.S. District Court. At least 50 people have been charged in 2023 alone with violating the felon-with-firearm ban, court records show.

The reasons to charge a defendant in federal court vary, but prosecutors generally promote it as a tool to get the city’s most violent, repeat offenders off the street instead of putting them back into the Cook County justice system. The potential penalties also are typically much tougher. Not only does the federal charge of unlawful possession of a weapon by a felon carry a maximum 10-year prison sentence, defendants must serve 85% of their sentence, instead of being eligible for day-for-day credit in the state system. If a defendant, such as Prince, has previously been convicted of three or more violent felonies, federal prosecutors can seek an enhanced, mandatory minimum sentence of 15 years behind bars, or up to life.

UPDATE: The 22-page opinion in US v. Prince, No. 1:22-cr-00240 (N.D. Ill Nov. 02, 2023), is available at this link.

Some press pieces reviewing SCOTUS argument in Rahimi Second Amendment case

As previewed in this post, the Supreme Court today heard oral argument in US v. Rahimi to consider how its (new originalist) Second Amendment test applies to the federal criminal firearm prohibition of gun possession by persons subject to domestic violence restraining orders, 18 USC § 922(g)(8).  The 90+ minute oral argument (and its transcript) is available at this link.  As highlighted by the press coverage, most SCOTUS watchers expect the Court to uphold the federal law against a Second Amendment challenge:

From CBS News, "Supreme Court wary of striking down 1994 law protecting domestic violence victims in high-stakes gun case"

From Reuters, "US Supreme Court leans toward allowing domestic-violence gun curbs"

From Vox, "The Supreme Court appears poised to rein in its worst decision on guns"

From The Washington Post, "Court seems likely to allow gun bans for those under protective orders"

Upon listening to the oral argument, I share the view that 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 still found the entire oral argument quite interesting, and 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.  We shall see in a few months if history and originalism really matters in this context.

"A Comprehensive Analysis of the Effect of Crime-Control Policies on Murder"

The title of this post is the title of this notable new paper authored by Carlisle Moody recently posted on SSRN.  Here is its abstract:

This study investigates the effects of most of the major firearm and crime control policies on murder.  We use two-way fixed-effects models based on state-level panel data from 1970-2018.  We include a comprehensive list of relevant policy variables to control for their influence in determining the effect of each.  We do a specification search using four commonly used econometric methods to estimate three models of the crime equation.  A Bonferroni correction is used to control for false rejections. A robustness check using new difference-in-differences estimators confirms the results.  We find that, with the possible exception of constitutional carry laws, no firearm policy can be shown to have a significant long-run effect on murder.  However, we find that the traditional policies of prison incarceration and police presence significantly reduce murder in the long run.  We also find that executions have no significant long-run effect on murder.  Finally, there is considerable evidence that three-strikes laws increase murder in the long run.

New CAP report asserts "Cities in Blue States Experiencing Larger Declines in Gun Violence in 2023"

Yesterday, the Center for American Progress Action Fund released this new report which it claims "shows that, on average, cities in blue states have lower rates of gun homicides and shooting incidents than comparably sized cities in red states and are seeing larger single-year decreases in gun violence rates in 2023."  Here is the report's "Introduction and Summary" (with footnotes removed):

Gun violence anywhere is unacceptable. Yet increasingly, Americans are forced to grieve the unimaginable horrors of school and hate-motivated shootings in innocent communities, in addition to the daily occurrence of gun violence across the United States.  It is no wonder that Americans see gun violence as a top issue for Congress.  To stop gun violence in this country, every lawmaker at every level of government must come together to pass commonsense gun laws and stop violence before it happens.  Unfortunately, this has not been the case.

Even though gun violence is an epidemic — touching the lives of Americans everywhere — instead of passing stronger gun laws, Republican leaders are choosing to weaponize the issue for political gain by using misinformation to stoke fears of “Democrat-controlled” cities.  In 2022, for example, after a shooter took the lives of 19 children and two teachers at Robb Elementary School in Uvalde, Texas, Gov. Greg Abbott (R-TX) claimed that gun violence in the cities of New York, Los Angeles, and Chicago is evidence that tougher gun laws are “not a real solution.”  Similarly, despite evidence that New York City actually has relatively low rates of gun violence when controlling for its size, in April 2023, Rep. Jim Jordan (R-OH) used his powers as the House Judiciary Committee chair to hold a field hearing on violent crime in Manhattan to disrepute Manhattan District Attorney Alvin Bragg after Bragg brought charges against former President Donald Trump.  These examples demonstrate a larger coordinated effort by conservatives to make violent crime a “Democrat” issue while at the same time diverting attention from their own public safety failures to address gun violence, including neglecting to make it harder for individuals with violent intentions to obtain a gun.

However, despite the millions of dollars spent on this misinformation campaign, the data on gun violence homicides in America paint an entirely different picture. Original analysis conducted by the Center for American Progress Action Fund on the 300 most populous U.S. cities comparing gun homicide rates from January 2015 to August 2023 finds that, after controlling for population size:

• Cities in blue states, based on how a state voted in the 2020 presidential election, are consistently safer from guns than cities in red states, regardless of which party is represented in city leadership.
• From 2018 to 2021, red-state cities experienced larger increases in gun violence rates than blue-state cities.
• In 2023, blue-state cities are experiencing larger declines in gun violence rates than red-state cities.

Not only do blue-state cities on average experience lower rates of gun violence in each year of the study, but now, gun violence rates appear to be decreasing faster on average in these cities than in red-state cities.  Put simply, the data do not back up the blame-game politics of Republican lawmakers such as Texas Gov. Abbott and Rep. Jordan.

Notable defender amicus briefs submitted in support of Second Amendment claims in Rahimi

This week brought the final submission of the main merits and amicus briefs in the Supreme Court for the case of US v. Rahimi, which will address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization.  In this post a couple of year ago, I flagged this notable amicus brief filed by various defender offices in support of expanding Second Amendment rights in Bruen.  Looking over the recent amicus filings, I noticed at least three different defense submission on behalf of the defendant in Rahimi.  A quick scan of some of these briefs reveals a number of notable passages, and I thought the very start of this brief from some California public defender groups highlighted some of the dimensions of this latest notable high-profile Second Amendment litigation:

The State of California aggressively criminalizes the possession of firearms.  We have seen that this disproportionately affects people of color, particularly Black people.  Since New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment.  And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.”  We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.

As to the particular statute at issue in this case, 18 U.S.C. Section 922(g)(8), we acknowledge the need to protect people from domestic violence.  Many of our clients are themselves victims of domestic violence.  But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.

A few prior related posts:

• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
• Some more commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi

Tenth Circuit panel rejects new challenge to federal felon-in-possession gun prohibition after Bruen

The Tenth Circuit handed down a panel ruling on Friday in Vincent v. Garland, No. 21-4121 (10th Cir. Sept. 15, 2023) (available here), which deepens the still-developing divides surrounding federal criminal gun prohibitions after the Supreme Court's Bruen ruling last year.  Here is how the court's opinion in Vincent starts:

Roughly 50 years ago, Congress banned the possession of firearms by convicted felons.  Gun Control Act of 1968, § 922(h)(1), Pub. L. No. 90 618, 82 Stat. 1213, 1220 (codified as amended at 18 U.S.C. § 922(g)(1)).  After Congress enacted this ban, the Supreme Court held that the Second Amendment guarantees a personal right to possess firearms. District of Columbia v. Heller, 554 U.S. 570, 595 (2008).  Based on the Court’s language, we upheld the constitutionality of the ban on convicted felons’ possession of firearms.  United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009).

The Supreme Court has recently created a new test for the scope of the right to possess firearms.  N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2129–30 (2022).  Based on the Supreme Court’s creation of a new test, the plaintiff challenges the constitutionality of the ban when applied to individuals convicted of nonviolent felonies.  To resolve this challenge, we must consider whether the Supreme Court’s new test overruled our precedent.  We conclude that our precedent has not been overruled.

A few (of many) prior recent related posts:

• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition 
• En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender 
• Bruen brouhahas: split Seventh Circuit panel remands for "Ph.D.-level historical inquiry" on felon in possession
• US District Court concludes Second Amendment requires dismissal of federal felon-in-possession prosecution 

Hunter Biden formally indicted on three federal charges related to his 2018 gun purchase

As reported in this Fox News piece, "Hunter Biden was indicted Thursday on federal gun charges out of Special Counsel David Weiss' investigation." Here is more:

Biden was charged with making a false statement in the purchase of a firearm; making a false statement related to information required to be kept by a federal firearms licensed dealer; and one count of possession of a firearm by a person who is an unlawful user of or addicted to a controlled substance....

These are the first charges Weiss has brought against the first son since being granted special counsel status.

Fox News first reported in 2021 that police had responded to an incident in 2018, when a gun owned by Hunter Biden was thrown into a trash can outside a market in Delaware....

The charges come after an original plea agreement collapsed in July. Hunter Biden was expected to plead guilty in July to two misdemeanor tax counts of willful failure to pay federal income tax as part of a plea deal to avoid jail time on a felony gun charge. Hunter Biden was forced to plead not guilty to two misdemeanor tax charges and one felony gun charge.

The full four-page indictment is available in the Fox News piece.

Prior related posts:

• Hunter Biden agrees to plea deal seeking to avoid prison time on tax and gun charges
• A "sweetheart deal"?: Minor (mostly uninformed) musings about Hunter Biden's prosecution and plea deal
• Some reflections in headlines on Hunter Biden's "sweetheart" plea deal 
• On eve of plea hearing for Hunter Biden, House Committee Chair urges district court to consider "improper conduct" surrounding prosecution
• Not a done deal: Hunter Biden ends up pleading not guilty to federal charges after district judge raises concerns about plea deal particulars 

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.

Split Fourth Circuit panel reverses denial of sentence reduction motion and orders 20-year reduction based on stacked § 924(c)

A helpful reader made sure that I did not miss a notable Fourth Circuit ruling today in US v. Brown, No. 21-7752 (4th Cir. Aug. 16, 2023) (available here). The majority opinion for the court begins this way:

On July 30, 2014, a jury convicted Kelvin Brown on seven counts, including two counts of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). At the time of Brown’s sentencing, his two § 924(c) convictions carried a five- and twenty-five-year mandatory minimum sentence, respectively. The district court thus sentenced Brown to thirty years in prison for his § 924(c) convictions, and, together with his other five convictions, to fifty-seven years’ imprisonment total.

In July 2020, Brown moved for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Brown primarily argued that his release was warranted because he was at risk of serious illness from COVID-19 and because, under the First Step Act’s amendment to § 924(c) sentencing, he would only be subject to a combined ten-year mandatory minimum for his two § 924(c) convictions if sentenced today.  The district court twice denied Brown’s motion, each time without addressing the disparity between his § 924(c) sentence and the much shorter mandatory minimums the First Step Act now prescribes.

We hold that the district court abused its discretion by denying Brown’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the § 3553(a) sentencing factors overwhelmingly favor a sentence reduction.  We therefore reverse and remand with instructions to rectify that disparity and reduce Brown’s prison sentence by twenty years.

The majority opinion concludes with some explanation for why it orders a 20-year sentence reduction rather than another remand:

“Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions.” Malone, 57 F.4th at 177.  So, in a different case, we might remedy the district court’s error by remanding for the district court to consider Brown’s disparate sentence in the first instance.  Yet the district court here has already had two opportunities to review Brown’s compassionate release motion: its initial denial of Brown’s motion in July 2020, and its second denial in December 2021 after we remanded Brown’s case for further consideration.  Each time, the district court neglected to address Brown’s disparate sentence. That neglect persisted despite our express recognition in our previous remand order that McCoy — and its holding that disparate § 924(c) sentences can constitute “extraordinary and compelling reasons” for release — “is relevant to this case.” Brown, 2021 WL 4461607, at *2 n.4.

The dissent, authored by Judge Quattlebaum, starts this way:

In an extraordinary and, in my view, regrettable decision, the majority reverses the district court’s order denying Brown’s motion for compassionate release.  It does so only by imposing a standard for explaining decisions that is more demanding than what the Supreme Court recently established. Concepcion v. United States, 142 S. Ct. 2389, 2405 (2022) (“All that is required is for a district court to demonstrate that it has considered the arguments before it.”).  But the majority does not stop there. It then usurps the district court’s assigned responsibility by stepping in to re-weigh the sentencing factors, substitute its judgment for that of the district court and order a 20-year sentence reduction.  The majority may well be troubled by the length of Brown’s original sentence.  But our ordered system of justice requires that appellate courts apply standards set forth by the Supreme Court. And it requires that discretionary sentencing decisions be made by district court judges.  The majority today does neither.  I dissent.

Fifth Circuit panel declares unconstitutional federal prohibition on gun possession by “unlawful user” of controlled substances

In a post last summer right after the Supreme Court's landmark Second Amendment ruling, I wondered "Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?".  A handful of district courts have concluded that federal law prohibiting dug possession by unlawful drug user violates the Second Amendment, and now a circuit court has joined these ranks.  Specifically, in US v. Daniels, No. 22-60596 (5th Cir. Aug. 9, 2023) (available here), a Fifth Circuit panel has decided the federal prohibition on firearm possession for “unlawful user” of a controlled substance is unconstitutional.  Here is how the opinion for the court in Daniels gets started:

Title 18 U.S.C. § 922(g)(3) bars an individual from possessing a firearm if he is an “unlawful user” of a controlled substance. Patrick Daniels is one such “unlawful user” — he admitted to smoking marihuana multiple days per month. But the government presented no evidence that he was intoxicated at the time of arrest, nor did it identify when he last had used marihuana. Still, based on his confession to regular usage, a jury convicted Daniels of violating § 922(g)(3).

The question is whether Daniels’s conviction violates his right to bear arms.  The answer depends on whether § 922(g)(3) is consistent with our nation’s “historical tradition of firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is a close and deeply challenging question.

Throughout American history, laws have regulated the combination of guns and intoxicating substances.  But at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another.  A few states banned carrying a weapon while actively under the influence, but those statutes did not emerge until well after the Civil War.  Section 922(g)(3) — the first federal law of its kind — was not enacted until 1968, nearly two centuries after the Second Amendment was adopted.

In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage.  Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users.  As applied to Daniels, then, § 922(g)(3) violates the Second Amendment.  We reverse the judgment of conviction and render a dismissal of the indictment.

Are many district courts ordering Second Amendment briefing in felon-in-possession cases (and are charges and sentencings being impacted)?

The question in the title of this post came to mind upon seeing this new order in US v. Sims, a federal case from Illinois in which the district judge has set a briefing schedule to address an elaborate set of questions in response to a defendant's motion to dismiss a federal firearms charge.  These questions were prompted and framed by the Seventh Circuit's recent remand ruling in Atkinson v. Garland, No. 22-1557 (7th Cir. June 20, 2023) (available here).  I discussed Atkinson in this post last month, noting that the dissenting opinion in that case expressed great concern with "saddling [a district court] with a Ph.D.-level historical inquiry" in order to address a Bruen-based Second Amendment challenge to 18 USC § 922(g)(1), the federal criminal prohibition on felons possessing firearms.

As discussed in a few recent posts here and here, the Supreme Court next year will be addressing a Second Amendment challenge to a different section of federal firearm possession criminalization in US v. Rahimi.  But, according to this 2022 US Sentencing Commission report about federal firearm prosecutions and sentencings, it seems that maybe only a few hundred federal criminal  prosecutions are brought each year under § 922(g)(8), the provision at issue in Rahimi, whereas perhaps more than 6000 federal criminal  prosecutions are brought each year under § 922(g)(1).  We likely will need to wait nearly a year for a SCOTUS decision in Rahimi, and there is no certainty that such a decision will conclusively resolve federal challenges to the broad federal felon-in-possession prohibition.  Federal district courts, which historically have sentenced hundreds of felon-in-possession cases each and every month, likely cannot readily defer resolution of Second Amendment challenges until getting additional guidance from SCOTUS.

Of course, at least one circuit (the Eighth) has seemingly categorically rejected broad constitutional challenges to § 922(g)(1), while another circuit (the Third) has held that some applications of § 922(g)(1) are unconstitutional.  This leads me to assume district courts in the Eight Circuit can readily dismiss any Second Amendment challenge to 18 USC § 922(g)(1), while district courts in the Third Circuit surely need to carefully sort through such claims.  As the Sims order reveals, district courts in the Seventh Circuit may feel obligated to seek elaborate briefing.  And there is been at least one high-profile ruling from a district court in the Fifth Circuit (where Rahimi came from) which declares § 922(g)(1) unconstitutional.

In addition to wondering what district courts around the country are doing, I also wonder whether and how federal prosecutorial charging and bargaining practices are being impacted by all the constitutional uncertainty produced by Bruen.  Are federal prosecutors, at least in some districts, now less likely to bring § 922(g)(1) charges (at least in cases involving nonviolent priors)?  Are federal prosecutors, at least in some districts, now more likely to provide more favorable plea terms in these cases because of the constitutional uncertainty?  (I have speculated that Hunter Biden's plea deal may have been influenced by post-Bruen questions about yet another provision of 922(g).)

Speaking of plea deals, I especially wonder if there maybe be (significant?) sentencing echoes from all this constitutional churn.  Notably, felon-in-possession cases are the hook for the severe 15-year mandatory minimum prison term of the Armed Career Criminal Act (ACCA).  Might some prosecutors agree not to seek ACCA's severe term in exchange for a defendant's waiving of constitutional challenges?  In less aggravated cases, might prosecutors agree to recommend a less severe prison term in order to avoid a Bruen brouhaha?  

I could go on and on speculating about all the federal criminal ripples from Bruen, but I am hoping that in the comments some practitioners might be able to report on what's actually going on in district courts these days with respect to thousands of pending felon-in-possession cases.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• US District Court concludes Second Amendment requires dismissal of federal felon-in-possession prosecution
• En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender
• Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition

Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi

In this post, I noted that the Supreme Court in its final order list granted cert review in US v. Rahimi to address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization.  Since that grant, I have seen some new comment on the case, and here is a smattering of those pieces:

From HuffPost, "This Man Is A Suspect In Multiple Shootings. His Case May Decide The Future Of Gun Rights."

From the Independent, "Should domestic abusers have the right to be armed? The Supreme Court could upend protections for survivors"

From Mother Jones, "A Federal Gun Law Has Protected Domestic Violence Survivors for 30 Years. Now SCOTUS Will Decide Its Fate."

From Slate, "The Supreme Court’s YOLO Approach to Guns Is About to Face a Major Test"

Some (of many) prior recent related posts:

• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• How long until the Supreme Court takes up another Second Amendment case after Bruen? 
• With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by those subject to DV orders? 

"Subtracting 420 from 922: Marijuana Legalization and the Gun Control Act After Bruen"

The title of this post is the title of this notable new paper authored by Nicholas Goldrosen now available via SSRN. Here is its abstract:

Numerous states have legalized marijuana for medical and recreational use.  Nonetheless, federal law prohibits users of marijuana, which remains illegal federally, from possessing firearms.  I interrogate this legal tension from two angles. First, this paper brings empirical evidence to this conversation: Does legalizing marijuana lead to more gun deaths?

It doesn’t.  This article analyzes the effect of recreational and medical marijuana legalization on gun homicides, suicides, and deaths as well as on gun prevalence, gun purchasing, and federal gun prosecutions.  I combine administrative data from the National Vital Statistics System, National Instant Criminal Background Check System, and United States Sentencing Commission for the period from 2010 through 2020.  To estimate a causal effect, I employ a difference-in-differences method with staggered treatment timing from Callaway and Sant’Anna (2021) to compare states that have legalized marijuana to those that have not yet legalized marijuana but will during the study period. There is no evidence of a statistically significant treatment effect of either recreational or medical marijuana legalization on firearms deaths, homicides, or suicides.  Additionally, there is no evidence that legalization causes greater firearms sales or prevalence, or that the federal gun prohibition for marijuana users deters gun killings post-legalization.

Secondly, this regulation has received new scrutiny after the Supreme Court’s recent ruling in NYSRPA v. Bruen, under which firearms regulations must be justified by consistency with “this Nation’s historical tradition of firearm regulation.”  Courts have come to conflicting answers on whether the prohibition on gun ownership by marijuana users accords with the Second Amendment under Bruen.  I therefore survey three potential legal paths for resolving the conflict between state legalization of marijuana and federal gun laws.  First, legislators might directly amend the Gun Control Act to allow for gun possession by some or all marijuana users.  Second, legislators might reform marijuana’s status within the Controlled Substances Act more broadly.  Finally, an uncertain future for the controlled-substance-user prohibition exists in the courts post-Bruen.  The Bruen decision’s unworkable tests do not clearly support either upholding or striking down this ban. If anything, the interpretation of the federal ban on gun possession by marijuana users under Bruen highlights the impracticability of its test.  Amongst these solutions, I argue that broader Controlled Substances Act reform is the likeliest to provide consistency while not harming public safety.

With Bruen follow-up cases making their way to SCOTUS, round-ups of federal Second Amendment litigation

Just shy of a year ago, the Supreme Court handed down its landmark Second Amendment decision in Bruen, and at the time I suggested in a series of posts (some linked below) that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges. In fact, Bruen has lead to an extraordinary amount of litigation surrounding many federal gun restrictions in 18 U.S.C. § 922, and constitutional challenges are now splitting federal circuit courts and making their way to the Supreme Court. This past week, I have noted a number of notable new press pieces and commentary on these fronts. Here is a round up of some of these Second Amendment round ups:

From Reason, "Second Amendment Roundup: Third Circuit Rules Felon Ban Invalid as Applied: Range would be the best § 922(g) case for the Supreme Court to resolve.

From Reason, "Originalism in the Lower Courts: Fifth Circuit Panel Invites Amicus Briefs on Second Amendment: 'Of particular interest are historical gun regulations applicable to intoxicated or impaired individuals'."

From NBC News, "Supreme Court considers recoil from landmark gun rights ruling: After lower court rulings struck down longstanding gun restrictions, the Biden administration asks justices to uphold restrictions on people with domestic violence restraining orders."

From the New York Times, "Do People Subject to Domestic Abuse Orders Have the Right to Be Armed?: The Supreme Court will soon consider whether to hear an appeal of a ruling striking down a domestic-violence law under the Second Amendment."

From the Washington Examiner, "Starting pistol: 'Tidal wave' of gun laws struck down a year after Supreme Court Bruen ruling"

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• 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? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• After recent wave of notable rulings, a wave of new Second Amendment commentary 
• How long until the Supreme Court takes up another Second Amendment case after Bruen? 
• With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders?

Ninth Circuit panel rejects claim that Bruen precludes guideline sentence enhancement for gun possession

I already have blogged a bit about various ways the Supreme Court's landmark Second Amendment ruling in Bruen raises all sort of new and challenging questions about the enforcement of various federal criminal statutory provision (and I expect to be blogging more and more on these topics as the issues divide appeals courts).  But yesterday, a Ninth Circuit panel directly considered (and quickly rejected) a claim that Bruen precludes application of a federal sentencing enhancement under the guidelines for possessing a firearm in conjunction with a federal drug offense. Here is how the ruling in US v. Alaniz, No. 22-30141 (9th Cir. June 13, 2023) (available here), gets started:

This case requires us to consider whether United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1), which provides for an enhancement of the Guidelines calculation if a defendant possessed a dangerous weapon at the time of a felony drug offense, is constitutional under the Second Amendment following New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022).  We conclude that, in light of a well-established historical tradition of regulation, Miguel Michael Alaniz did not have the right to “keep and bear arms” during and in close proximity to his criminal activities.

And here is part of the substance of the opinion (with footnoted omittes):

The government offers on appeal a number of founding-era statutes to prove a historical tradition of sentencing enhancements tied to firearm possession.  We conclude that this historical tradition is well-established.  Notably, several States enacted laws throughout the 1800s that increased the severity of punishment for certain felonies when weapons were possessed, but not necessarily used, during the commission of the crime.  See, e.g., Commonwealth v. Hope, 39 Mass. (22 Pick.) 1, 9–10 (1839) (analyzing an 1805 statute that aggravated burglary to the first degree when a defendant possessed a weapon); People v. Fellinger, 24 How. Pr. 341, 342 (N.Y. Gen. Term 1862) (same); State v. Tutt, 63 Mo. 595, 599 (1876) (same); United States v. Bernard, 24 F. Cas. 1131, 1131 (C.C.D.N.J. 1819) (discussing a New Jersey statute that punished the possession and exhibition of a firearm during the robbery of a postal worker). Indeed, Bruen itself confirms that the right to keep and bear arms was understood at the Founding to be limited where there was a likelihood of a breach of peace.  See 142 S. Ct. at 2144–46 (citing Simpson v. State, 13 Tenn. 356, 358–61 (1833); State v. Huntly, 25 N.C. 418, 421–23 (1843) (per curiam); O’Neil v. State, 16 Ala. 65, 67 (1849)).

Alaniz argues that the government cannot satisfy the step two inquiry because its analogues are not sufficiently similar to U.S.S.G. § 2D1.1(b)(1).  He asserts that in the government’s examples, possession was an element of the offense and therefore required proof beyond a reasonable doubt. He also contends that felony drug trafficking presents the same “perceived societal problem,” as did smuggling crimes in the founding era, thus, in his view, requiring the government to present a “distinctly similar” historical analogue. Id. at 2131.

Alaniz’s argument, however, is divorced from both reality and the law. Illegal drug trafficking is a largely modern crime. It is animated by unprecedented contemporary concerns regarding drug abuse and is not closely analogous to founding-era smuggling crimes, which primarily focused on punishing importers who evaded customs duties.  See Gonzales v. Raich, 545 U.S. 1, 10–13 (2005); see also Margarita Mercado Echegaray, Note, Drug Prohibition in America: Federal Drug Policy and Its Consequences, 75 Rev. Jur. U. P.R. 1215, 1219 (2006); Aaron T. Knapp, From Empire to Law: Customs Collection in the American Founding, 43 Law & Soc. Inquiry 554, 56566 (2018) (describing the Collection Act of 1789 that created “a customs collection regime” that aimed to “prevent fraud and evasion” through “punishing wrongdoing”).  And Bruen expressly recognized that “cases implicating unprecedented societal concerns,” like the one here, “may require a more nuanced approach.” 142 S. Ct. at 2132.

Arguing that Second Amendment rulings are serving "as a tool of progressive constitutionalism"

This new Slate commentary by Mark Joseph Stern, headlined "Progressive Judges May Have Found a Use for Clarence Thomas’ Terrible Guns Ruling," notes the alignment of judges in the recent en banc Third Circuit ruling in Range (discussed here) and makes some notable claims developing about Second Amendment jurisprudence.  Here are excerpts:

Will progressive judges ever find use for the Supreme Court’s recently expanded and disastrous interpretation of the Second Amendment? A major ruling on Tuesday suggests that they already are.  By an 11–4 vote, the U.S. Court of Appeals for the 3rd Circuit held that some people convicted of felonies retain their right to bear arms. The decision drew support from judges across the ideological spectrum, uniting the court’s most conservative and liberal judges despite — or perhaps because of—its potentially revolutionary implications. This consensus suggests that we may be entering a new era of Second Amendment litigation, one in which left-leaning judges reluctantly embrace gun rights as a tool of progressive constitutionalism....

What’s behind the cross-ideological support for Range?  Probably not a deep certainty that Hardiman’s cursory historical overview and logic were correct, at least on the left flank of the court: In her exhaustive dissent, Judge Cheryl Ann Krause, an Obama appointee, eviscerated the majority’s historical analysis with a mountain of evidence proving that “legislatures have historically possessed the authority to disarm entire groups, like felons, whose conduct evinces disrespect for the rule of law.” (Krause also pointed out that Range’s conduct would have been a capital offense in 1791, and it’s difficult to see how a crime could be punishable by execution but not disarmament.) In Bruen, though, Justice Thomas simply ignored or discredited any evidence that did not fit his preferred narrative, tacitly inviting lower courts to do the same.  We are long past the point of pretending that the actual historical record matters to judges who are eager to bulldoze gun safety laws.

What’s a progressive judge to do?  Public defenders have already offered an answer: employ the Second Amendment in furtherance of progressive constitutional values like equal protection and the rights of criminal defendants.  Because so many high-profile gun cases are manufactured by conservative activists — including this one — it’s easy to forget who’s really on the front lines of the Second Amendment revolution: criminal defense attorneys representing indigent clients charged with firearm offenses.  (It’s telling that one Biden appointee who joined the majority in Range, Arianna Freeman, spent her entire legal career as a federal public defender.)  Public defenders have a Sixth Amendment obligation to provide their clients with a zealous defense, which increasingly includes constitutional challenges to gun restrictions.

That’s why New York City’s public defenders filed a brief in Bruen urging the Supreme Court to strike down nearly all limitations on public carry.  And it’s why the 3rd Circuit’s top public defenders — Freeman’s former colleagues — filed a similar brief in Range attacking the federal felon-in-possession ban.  The Supreme Court’s Second Amendment decisions all envision “law-abiding, responsible citizens” who seek to protect themselves and their families from violence.  But in the real world, the people who have the most to gain from these rulings are criminal defendants facing down years or decades in prison.  Recent decisions establishing a right to scratch out a gun’s serial number and purchase a firearm while under indictment or restraining order all arose out of criminal prosecutions, not NRA-backed test cases.

Like a growing number of public defenders, liberal judges like Freeman, Ambro, Greenaway, and Montgomery-Reeves may think that the Second Amendment can be repurposed as a weapon against over-policing and mass incarceration.  If upheld by the Supreme Court, Range will certainly be a boon to the criminal defense bar, as well as a source of immense confusion for prosecutors.  The majority’s standard is extraordinarily vague: It acknowledges that some people may be disarmed for committing a felony, but a person “like Range” could not.  How can judges tell when someone falls on Range’s side of the line?  The majority didn’t say.  In 2019, then-Judge Amy Coney Barrett took a stab at a clearer standard, asserting that only “dangerous” and “violent felons” may be disarmed.  But which crimes count as “violent”?  Is selling or using cocaine “violent”?  How about possessing child pornography?  Drunk driving?  Burglary? Harassment?  In a 2015 decision, the Supreme Court found it impossible to give the term “violent felony” a “principled and objective” standard.  Why should courts have any more luck today?

This uncertainty would force prosecutors to think twice before bringing felon-in-possession charges, asking first whether they could persuade a court that the defendant is sufficiently “dangerous” or “violent” or “non-law-abiding” to justify disarmament.  And from a criminal justice reform perspective, that’s not necessarily a bad thing.  Plenty of left-leaning commentators have argued that the felon-in-possession ban is disproportionately enforced against people of color, contributing to mass incarceration and persecution of minority communities.  For many progressives, these problems raise concerns about equal protection, unlawful policing, and unconstitutional sentences.  But this Supreme Court doesn’t see them that way; it cares far more about gun rights than traditional civil rights, such as basic civic equality of Black Americans.  So progressive judges may instead seek to use the Second Amendment as a stand-in for constitutional principles that SCOTUS has abandoned.

If that’s the strategy, it carries real risks.  Most obviously, this approach risks legitimizing a sweeping and lethal interpretation of the Second Amendment during an epidemic of gun violence in America.  Liberal support for an expansive right to bear arms could entrench decisions like Bruen, contributing to their status as “settled” precedent that will be harder to overturn in the future.  In 2023, though, progressive judges must take their wins wherever they can find them.  Only they can decide whether the trade-offs are worth it.

A few prior related posts:

• En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender
• Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"? 

En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender

Creating a circuit split concerning the lawfulness of a frequently-applied federal gun control provision, the full en banc Third Circuit today found unconstitutional the application of federal felon-in-possession law to a person with a false statement conviction. The majority opinion in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (available here), runs less than 20 pages, but it is followed by 80+ pages of concurring and dissenting opinions.  (The vote for Range was 11-4.)  Here is how the majority opinion authored by Judge Hardiman concludes:

Our decision today is a narrow one. Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).  Range remains one of “the people” protected by the Second Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms.  Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his Second Amendment rights.  We will reverse the judgment of the District Court and remand so the Court can enter a declaratory judgment in favor of Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

The longest dissent was is authored by Judge Krause, and here are a few paragraphs of its introduction (with footnotes omitted):

Section 922(g)(1) of the U.S. Code, Title 18, embodies this delicate equilibrium and comports with traditional principles that have guided centuries of legislative judgments as to who can possess firearms.  As Justice Alito has observed, § 922(g) “is no minor provision.  It probably does more to combat gun violence than any other federal law.” And as a “longstanding” and widely accepted aspect of our national gun culture, the federal felon-possession ban — carefully crafted to respect the laws of the states — is the keystone of our national background check system, and has repeatedly been characterized by the Supreme Court as “presumptively lawful.”  Where, as here, the legislature has made a reasonable and considered judgment to disarm those who show disrespect for the law, it is not the place of unelected judges to substitute that judgment with their own.

Yet today’s majority brushes aside these realities and the seismic effect of its ruling.  It is telling that, although 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 Fifth 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.  And in the process, the majority creates a circuit split with the Eighth Circuit’s recent opinion in United States v. Jackson, which rejected the notion of “felony-by-felony litigation” and recognized that “Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.”

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 Second Amendment issues the Supreme Court is going to have to confront.

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.

SCOTUS grants cert in ACCA cases to address prior drug convictions as predicates for 15-year mandatory minimum

As predicted in this recent post, the Supreme Court today in this morning's SCOTUS order list granted cert in a pair of cases (which were consolidated) raising another question regarding the application of the Armed Career Criminal Act's mandatory minimum 15-year prison term for illegal gun possession.  The cases are Brown v. US, No. 22-6389 and Jackson v. US, No. 22-6640, and here are links to the Brown cert petition and the Jackson cert petition.  Here is the "Question Presented" from the Brown petition:

The Armed Career Criminal Act provides that felons who possess a firearm are normally subject to a maximum 10-year sentence.  But if the felon already has at least three “serious drug offense” convictions, then the minimum sentence is fifteen years. 

Courts decide whether a prior state conviction counts as a serious drug offense using the categorical approach. That requires determining whether the elements of a state drug offense are the same as, or narrower than those of its federal counterpart.  If so, the state conviction qualifies as an ACCA predicate.

But federal drug law often changes — as here, where Congress decriminalized hemp, narrowing the federal definition of marijuana.  If state law doesn’t follow suit, sentencing courts face a categorical conundrum.  Under an earlier version of federal law, the state and federal offenses match — and the state offense is an ACCA predicate.  Under the amended version, the offenses do not match — and the state offense is not an ACCA predicate.  So the version of federal law that the court chooses to consult dictates the difference between serving a 10-year maximum or a 15-year minimum.

The question presented is:

Which version of federal law should a sentencing court consult under ACCA’s categorical approach?

UPDATE: A helpful reader made sure I did not overlook the fact that a different drug is at issue in the Jackson case.  At issue in that case is the status of a conviction that came before 2015 when "the federal government removed ioflupane I123 from the federal drug schedules."  

Another federal judge finds Second Amendment violation in federal law criminalizing marijuana users from gun possession

Tihs new Marijuana Moment piece, headlined "Another Federal Court Rules That Banning Marijuana Consumers From Possessing Guns Is Unconstitutional," reports on another notable new post-Bruen ruling finding a provision of federal criminal gun control laws to be unconstitutional.  Here are the basics:

Another federal court has ruled that banning people who use marijuana from possessing firearms is unconstitutional—and it said that the same legal principle also applies to the sale and transfer of guns, too.

The Justice Department has recently found itself in several courts attempting to defend the cannabis firearms ban, and its arguments have faced increased scrutiny in light of broader precedent-setting Second Amendment cases that generally make it more difficult to impose gun restrictions.

Now the U.S. District Court for the Western District of Texas has weighed in, delivering a win to Paola Connelly, an El Paso resident who was convicted of separate charges for possessing and transferring a firearm in 2021 while admitting to being a cannabis consumer.

Judge Kathleen Cardone granted a motion for reconsideration of the case and ultimately dismissed the charges last week. While the court previously issued the conviction, it said that a more recent ruling in the U.S. Court of Appeals for the Fifth Circuit warranted a reevaluation. That case relied on U.S. Supreme Court precedent finding that any firearm restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.

The Supreme Court ruling has been central to several challenges against the gun ban for cannabis consumers. For this latest federal district court case, the Bush-appointed judge disputed the Justice Department’s attempts to assert historical analogues to the marijuana ban, including comparisons to laws against using guns while intoxicated from alcohol and possession by people deemed “unvirtuous.”

Further, the court said that because simple cannabis possession would only rise to a misdemeanor under federal law, “any historical tradition of disarming ‘unlawful’ individuals does not support disarming Connelly for her alleged marijuana use.” Notably, the judge also cited the fact that President Joe Biden issued a mass pardon last year for people who’ve committed federal marijuana possession offenses.

The full 32-page opinion in US v. Connelly, No. EP-22-CR-229(2)-KC (W.D. Tex. April 6, 2023), is available at this link.   Footnote 8 of the opinion highlights the split of authority within the Fifith Circuit on this topic:

District courts in the Fifth Circuit have upheld § 922(g)(3) against Second Amendment challenges post-Bruen, largely employing these broader traditions. See United States v. Black, --- F. Supp. 3d ----, 2023 WL 122920, at *34 (W.D. La. Jan. 6, 2023); United States v. Sanchez, --- F. Supp. 3d ----, 2022 WL 17815116, at *3 (W.D. Tex. Dec. 19, 2022); United States v. Daniels, 610 F. Supp. 3d 892, 89597 (S.D. Miss. 2022). The Court respectfully disagrees with these cases for the reasons detailed below.  Further, the Court notes that all three of these cases predated the Fifth Circuit's deciison in Rahimi, which cast doubt on the applicability of these broader historical traditions to § 922(g)(3).  See 61 F.4th at 45051, 453. 

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• Federal judge declares federal law criminalizing marijuana users from gun possession violates Second Amendment 
• With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders?

With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by those subject to DV orders?

The question in the title of this post is prompted by the interesting news that the feds have now filed a cert petition seeking review of the Fifth Circuit panel ruling in US v. Rahimi (first discussed here). The Rahimi opinion declared unconstitutional 18 USC § 922(g)(8)'s prohibition on gun possession by those subject to certain domestic-violence protective orders.

Notably, the government could have sought en banc review, but decided to seek cert. And within the petition, the government explains that, due to "the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer."  This Hill article provides some details:

The government argued in the petition that the Fifth Circuit “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals,” instead dismissing each historical example on the grounds that it differed from the law “in some way.”

“Although courts interpreting the Second Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the DOJ said. “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

The Justice Department's full cert petition is available at this link.  It should be quite interesting to see if SCOTUS decides to take up the case on an expedited basis even before there is a direct circuit split.  Notably, as discussed in this prior post, the Supreme Court's landmark Bruen decision has already created considerable legal uncertainty for a variety of federal gun control laws.  As suggested before, because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will get back to these Second Amendment matters pretty soon.   But "pretty soon" in Supreme Court timelines does not really mean "soon," so I would be eager to hear reader thoughts about when Rahimi or perhaps other cases may end up on the SCOTUS docket.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• After recent wave of notable rulings, a wave of new Second Amendment commentary 
• How long until the Supreme Court takes up another Second Amendment case after Bruen? 

How long until the Supreme Court takes up another Second Amendment case after Bruen?

As detailed in a number of prior posts, the Supreme Court's landmark Bruen Second Amendment decision has created considerable legal uncertainty, especially for various federal gun control laws.   And, as two recent press pieces highlight, it seems like only a matter of time, given the lower-court churn over application of Bruen, before the Justices are going to have to engage with all the post-Bruen jurisprudence.

From the AP, "Turmoil in courts on gun laws in wake of justices’ ruling."  An excerpt:

Courts in recent months have declared unconstitutional federal laws designed to keep guns out of the hands of domestic abusers, felony defendants and people who use marijuana.  Judges have shot down a federal ban on possessing guns with serial numbers removed and gun restrictions for young adults in Texas and have blocked the enforcement of Delaware’s ban on the possession of homemade “ghost guns.”

In several instances, judges looking at the same laws have come down on opposite sides on whether they are constitutional in the wake of the conservative Supreme Court majority’s ruling.  The legal turmoil caused by the first major gun ruling in a decade will likely force the Supreme Court to step in again soon to provide more guidance for judges.

From USA Today, "As nation reels from Michigan State shooting, courts wrestle with access to guns."  An excerpt:

The Supreme Court has said a lot recently about what the Second Amendment means. The next question for the justices may be: Who does it not apply to?

A series of criminal cases percolating in lower federal courts are striking at a question about when the government may deny someone -- such as a person convicted of a nonviolent felony -- access to a gun.  Experts on both sides of the gun debate say the question is likely to make its way to the Supreme Court soon.

For various reasons, I suspect the Justices will be inclined to avoid taking up these matters for as long as possible.  It was, after all, a dozen years between the the last major Second Amendment ruling (McDonald) and Bruen.  But, in part because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will have to get back to these matters pretty soon. 

"Pretty soon" in Supreme Court timelines likely still means a year or two, perhaps even longer. But I welcome in the comments any and all predictions as to when, and what kind of, a case ultimately serves as the vehicle for SCOTUS to clarify just where Bruen will take Second Amendment jurisprudence.

After recent wave of notable rulings, a wave of new Second Amendment commentary

When the Supreme Court's landmark ruling in Bruen recast the Second Amendment entirely around "the Nation’s historical tradition of firearm regulation," I had an inkling that a new originalist jurisprudence might prove quite disruptive to a number of federal criminal laws (see post-Bruen posts here and here).  With recent notable rulings finding unconstitutional the gun possession prohibitions in § 922(g)(3) and § 922(g)(8), I have seen a number of new commentaries discussing Second Amendment jurisprudence after Bruen:

From Law & Liberty, "Implementing Bruen"

From Salon, "Phony constitutional 'originalism' is likely to kill women after Second Amendment decision"

From Slate, "Brett Kavanaugh May Have Quietly Sabotaged Clarence Thomas’ Extreme Gun Ruling"

From The Trace, "Bruen Takes Gun Law Back to a Time Before ‘Domestic Violence’"

From the Washington Examiner, "Reefer madness: Second Amendment gun rights shouldn’t go to pot"

Also, the latest episode of one of my favorite the legal podcasts, Advisory Opinions, takes a deep dive into modern Second Amendment jurisprudence in this pod titled "The Problem With 'History and Tradition'."

Federal judge declares federal law criminalizing marijuana users from gun possession violates Second Amendment

In a post last summer right after the Supreme Court's landmark Second Amendment ruling, I wondered "Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?".  In that post, I flagged the notably broad provision of federal firearms law, 18 U.S.C. § 922(g)(3), which categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  I also noted that, in an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute could function to criminalize the behaviors of tens of millions of gun-owning Americans.

As detailed in this Reuters article, at least one federal judge had decided that the answer to my query is yes, § 922(g)(3) is constitutionally problematic.  Here is how the article describes the ruling: 

A federal law prohibiting marijuana users from possessing firearms is unconstitutional, a federal judge in Oklahoma has concluded, citing last year's U.S. Supreme Court ruling that significantly expanded gun rights.  U.S. District Judge Patrick Wyrick, an appointee of former Republican President Donald Trump in Oklahoma City, on Friday dismissed an indictment against a man charged in August with violating that ban, saying it infringed his right to bear arms under the U.S. Constitution's Second Amendment.

Wyrick said that while the government can protect the public from dangerous people possessing guns, it could not argue Jared Harrison's "mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm."  He said using marijuana was "not in and of itself a violent, forceful, or threatening act," and noted that Oklahoma is one of a number of states where the drug, still illegal under federal law, can be legally bought for medical uses.

"The mere use of marijuana carries none of the characteristics that the Nation's history and tradition of firearms regulation supports," Wyrick wrote. Laura Deskin, a public defender representing Harrison, said the ruling was a "step in the right direction for a large number of Americans who deserve the right to bear arms and protect their homes just like any other American."

The full opinion in this case from Judge Wyrick, which runs 54 pages with nearly 200 footnotes, is available at this link.  I am inclined to expect that the US Justice Department will plan to appeal this decision to the Tenth Circuit, and Judge Wyrick's thorough opinion will surely give litigants on any appeal and perhaps elsewhere in the country a lot of chew on.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order

A Fifth Circuit panel handed down today another big post-Bruen ruling declaring that the Second Amendment renders unconstitutional a federal prohibition on firearm possession for certain disfavored individuals.  The ruling today in US v. Rahimi, No. 21-11001 (5th Cir. Feb. 2, 2023) (available here), gets started this way:

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 question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.  In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a prior panel upheld the statute, applying this court’s pre-Bruen precedent. See United States v. Rahimi, No. 21-11011, 2022 WL 2070392 at *1 n.1 (5th Cir. June 8, 2022).  Rahimi filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen.  The prior panel withdrew its opinion and requested supplemental briefing on the impact of that case on this one.  Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We therefore reverse the district court’s ruling to the contrary and vacate Rahimi’s conviction.

Here are a few of many notable passages from the opinion:

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 Second Amendment’s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans,” Heller, 554 U.S. at 581.  Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal....

The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation.  The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id.  As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

UPDATE: This AP article about the Rahimi ruling provides a bit more context concerning the decision and also includes an official reaction from US Attorney General:

The U.S. Justice Department Thursday night issued the following statement from Attorney General Merrick B. Garland following the decision: “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm.  Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional.  Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

Seeking "further review," I suspect, will involve the Department of Justice first requesting en banc consideration of this panel decision in the Fifth Circuit.  If that does not happen, I would expect DOJ would then seek Supreme Court review.  Interestingly, were SCOTUS to take up this case (or any similar ones) anytime in 2023, we could reasonably expect another major Second Amendment ruling in the run up to the 2024 election.

Another look at some of the post-Bruen Second Amendment uncertainty

Folks who follow Second Amendment jurisprudence know that the Supreme Court's landmark ruling in Bruen last summer has created  lots of notable new questions and constitutional uncertainty concerning an array of gun control measures.  And folks who follow this blog know that I find especially interesting the legal debates over the constitutionality of various laws criminalizing gun posession by persons with certain prior convictions or other criminal-justice involvement.  So I wanted to flag some notable recent press coverage of these issues:

From ABC News, "Supreme Court decision creates confusion over which firearm restrictions are constitutional"

From the Brunswick News, "Should nonviolent crimes cost a man his 2nd Amendment rights?"

From Reuters, "Federal public defenders seek end to several gun restrictions"

I think it might only be a matter or when, not if, the Supreme Court has to take up the issue of th constitutionality of at least some felon-in-possession bans.  But when might be many years from now. 

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

In this post two months ago, I noted the lengthy per curiam Third Circuit panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), which concluded that a person convicted of state welfare fraud was "outside the class of people traditionally entitled to Second Amendment rights" and upheld felon disarmament under 18 U.S.C. § 922(g)(1) against a Second Amendment challenge.  This Range opinion was the first big circuit opinion addressing felon gun dispossession under federal law after the landmark Supreme Court Bruen ruling changes Second Amendment jurisprudence. 

But Second Amendment law is Range free: via this order entered this past Friday, the full Third Circuit decided that this panel opinion in Range is to be vacated as the case will be reheard en banc (with oral argument scheduled for February 15, 2023).  I do not know enough about the particulars of all the Third Circuit judges to make confident predictions about how Range will be resolved after en banc reconsideration.  But, generally speaking, full circuits do not take up issues en banc when most of the judges are generally content with the panel outcome.  Consequently, I can confidently predict this case is one worth watching closely and one that might make for some notable new Second Amendment law.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 

Some news and commentary amid the continuing Bruen brouhaha over the Second Amendment

Regular readers likely recall my series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here) in which I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges (see posts here are here).  We are not quite at the six months mark since Bruen, but I have already chronicled in a number of subsequent posts a number of notable rulings applying Bruen to strike down a number of gun control measures.  Not surprisingly, many folks are also taking note of these developments, and just this past week has brought plenty of notable news and commentary on this front that seemed worth rounding up:

From The Conversation, "A judge in Texas is using a recent Supreme Court ruling to say domestic abusers can keep their guns"

From The Hill, "Is the Supreme Court turning the Constitution into a homicide pact?"

From Syracuse.com, "Can you bring a gun to the zoo?  On a bus?  Syracuse judge eagerly rewrites NY firearms law"

From the Wall Street Journal, "States Advancing Gun-Control Proposals Face Legal Uncertainty: Questions remain for lawmakers, courts on forbidding the carrying of firearms in ‘sensitive places’"