Thursday, July 18, 2024

Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional

As discussed in this post, a couple months ago, 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), finding that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition on gun possession by nonviolent felons.  Now, as set forth here, yesterday a "vote of a majority of nonrecused active judges ... ordered that this case be reheard en banc."  Judge VanDyke issued a 12-page dissent from the grant of rehearing en banc that is worth a full read.  Here is an excerpt:

Nothing in the Supreme Court’s recent Rahimi decision controls or even provides much new guidance for these [felon-in-possession] cases, which is undoubtedly why the federal government took the unusual step of asking the Court to review one or more of these pending cases immediately after Rahimi instead of following the Court’s usual practice of GVRing (granting, vacating, and remanding) related cases.  It’s also why the original panel in this case, after careful consideration, saw no reason to modify our opinion after Rahimi came down.  But the Supreme Court rejected the government’s request and kicked the can down the road, GVRing all the pending Section 922(g)(1) decisions and instructing the lower courts to take another look at them in light of Rahimi.

The Supreme Court’s docket this next term is no doubt full of important issues to decide, and this delay-the-inevitable approach to pressing Second Amendment questions would be just fine if the circuit courts were populated with judges committed to faithfully applying the considerable instruction already provided to us by the Court.  But that is clearly not the case.  In this circuit, you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court’s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court.  The other 17/29ths of our bench is doing its best to avoid the Court’s guidance and subvert its approach to the Second Amendment.  That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud.... 

Section 922(g)(1) applies to anyone “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1).  This applies to the many felons whose crime or conduct show they pose a “clear threat of physical violence to another.” Rahimi, 144 S. Ct. at 1901.  But it equally applies to felons who have no history of or expected propensity towards violence, like Martha Stewart.  When assessing the burden on the Second Amendment right imposed by the surety and affray laws, the Court in Rahimi found it key that the laws “involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon.” Id. at 1902.  This tracks the view of scholars who have linked these historical laws to a principle of disarming those who pose a threat of physical violence to another.  Here the government not only failed to show that Duarte “likely would threaten or had threatened another with a weapon.” Id.  It conceded he has no history of violence.  Duarte, 101 F.4th at 663 n.1. 

July 18, 2024 in Collateral consequences, Offender Characteristics, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (6)

Wednesday, July 10, 2024

Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi

This week has brought some new press pieces capturing some of the uncertainty about Second Amendment limits on federal criminal prohibtions of gun possessiom after the Supreme Court's ruling last month in Rahimi.  Here are links to the pieces and excerpts:

From the Washington Post, "The Supreme Court upended gun laws nationwide. Mass confusion has followed."

[O]n both sides of the gun-control debate, people say the [Rahimi] ruling will do little to ease the confusion and disruption unleashed by the high court’s 2022 historical mandate. Only eight of roughly 500 federal court cases that are challenging the constitutionality of firearms restrictions since the Bruen decision that are being tracked by the gun-control advocacy group Brady involve the law recently upheld by the Supreme Court, according to a Washington Post review of the data. Those opposing gun regulations said they still plan to aggressively target laws that they believe violate the Constitution....

The Post identified about 500 distinct federal challenges under Bruen.  Nearly 40 percent of those federal cases involve challenges to laws that keep guns away from people who are charged with or convicted of felonies, according to a review of the data. Roughly 15 percent involve bans on types of firearms such as machine guns, military-like weapons and ghost guns.

From Bloomberg Law, "Law Keeping Guns From Drug Users Gets Fifth Circuit Questioning":

How the US Supreme Court’s recent decision in US v. Rahimi bears on the constitutionality of a law barring drug users from possessing guns was the focus of questioning by Fifth Circuit judges Tuesday.

“How would the statute operate in a place like Colorado, which has much more liberal marijuana usage laws?” Judge Kurt D. Engelhardt asked the government. “Would the state law have any type of impact, or do we just say anybody who regularly and habitually uses marijuana in the state of Colorado would be a felon under the section?”

“If they possess a firearm, our position is the latter,” said Mahogane Denea Reed, an attorney for the government. But, Reed said, that could be taken up on an as-applied challenge and not resolved in the case before the court.

“With the benefit of Rahimi from the Supreme Court, they want us to look at this from every different point of view that we can imagine,” Engelhardt responded.

The questioning came as the US Court of Appeals for the Fifth Circuit heard oral arguments in the government’s appeal of a district court ruling that the law, Section 922(g)(3), is unconstitutional. US District Judge Kathleen Cardone’s 2023 order tossed a federal indictment against Paola Connelly on Second Amendment grounds.

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

July 10, 2024 in Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (3)

Wednesday, June 26, 2024

"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.

June 26, 2024 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (2)

Monday, June 24, 2024

After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden?

For criminal law practitioners, as well as for those who take constitutional gun rights seriously, the provision of federal criminal gun control that was upheld by the Supreme Court in US v. Rahimi, 18 USC § 922(g)(8) (basics here), is not really a matter of frequent concern.  As noted in this new Quick Facts publication from the US Sentencing Commission, the vast majority of federal criminal gun control prosecutions involve persons who "were convicted under 18 U.S.C. § 922(g) because of a prior felony conviction."  Of just over 8000 persons sentenced in federal court for illegally posessing a gun in Fiscal Year 2023, well over 7000 were in violation of federal 18 USC § 922(g)(1) for having a firearm after having "been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."

Of course, just in the last few months, a couple of high profile individuals have "been convicted [of] a crime punishable by imprisonment for a term exceeding one year."  Because both former President Donald Trump and son-of-the-current-President Hunter Biden have now both been convicted of felonies, they would be committing a new federal felony crime if they now or in the future were to "possess ... any firearm or ammunition."  (There is perhaps an irony that one of Hunter Biden's felony convictions involves another different (suspect?) provision of 18 USC § 922(g), but he also was convicted of two other crimes that trigger the criminal gun possession prohibition of § 922(g)(1).)   So, to comply with federal statutory criminal law, Donald Trump and Hunter Biden should make sure they do not now or in the future posssess any firearm or ammunition. 

But what about their Second Amendment rights?  Notably, at least two circuit courts and a number of district courts have read the Supreme Court's landmark Bruen opinion to lead to the conclusion that the federal criminal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offenders.  Both Donald Trump and Hunter Biden could surely make a claim that they are nonviolent, nondangerous offenders, so can they also claim they have a constitutional legal right to possess a gun regardless of federal statutory law? 

Of course, this past Friday, the Supreme Court in Rahimi explained how Second Amendment law is now supposed to work, and so Donald Trump and Hunter Biden (and their legal teams) have new guidance as to the scope and limits of their gun rights.  But, from my read of key language in Rahimi, I am still scratching my head on this important front.  Here, I believe, is much of the key operative language from the Court's Rahimi opinion:

Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms....   From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others....

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed....

While we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, see Heller, 554 U. S., at 626, we note that Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another....

Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home.  In fact, our opinion stated that many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.”...

Section 922(g)(8) ... presumes, like the surety laws before it, that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others.... [O]ur Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not....  Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others....

Finally, in holding that Section 922(g)(8) is constitutional as applied to Rahimi, we reject the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” Brief for United States 6; see Tr. of Oral Arg. 8–11. “Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law....

[W]e 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.

I do not believe Donald Trump or Hunter Biden "poses a clear threat of physical violence to another," and § 922(g)(1) notably serves to permanently disarm anyone with a felony conviction.  Further, the federal government has, since Bruen, generally argued for the constitutionality of 922(g)(1) based on the notion that only "responsible" individuals have Second Amendment rights.  The Rahimi court directly and expressly rejected that notion.  But still, as we saw before in Second Amendment cases like Heller and McDonald, the Court in the Rahimi seems to still embrace dicta that can be read to suggest that the very broad criminal prohibition set forth in 18 USC § 922(g)(1) is still constitutional.  

So, to repeat the question in the title of this post: After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 

June 24, 2024 in Collateral consequences, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (15)

Friday, June 21, 2024

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. 

June 21, 2024 in Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (30)

Saturday, June 01, 2024

Could Donald Trump, as felon dispossessed of guns, (further) impact Second Amendment jurisprudence?

I believe Donald Trump does not formally become a convicted felon until judgment is entered following his sentencing next month.  But it is not too early to think about some of the collateral consequences of his conviction.   Today I got to thinking about the fact that Trump, as a convicted felon, needs to soon become dispossessed of any firearms due to federal law (and also state laws) making it a serious crime for a felon to possess a gun.  This HuffPost piece, headlined "Donald Trump, Convicted Felon, Just Lost His Gun Rights," discusses these issues, and it notes that Trump has said that he owns and carries guns:

Trump rarely discusses his personal use of firearms.  But in a 2012 interview, he told The Washington Times that he held a concealed carry license in New York and owned two handguns — a .45-caliber H&K and a .38-caliber Smith & Wesson. Trump told French Magazine Valeurs Actuelles four years later, “I always carry a weapon on me.”

Not discussed by HuffPost piece is the fact that two federal circuit courts and some federal district courts have decided that the federal felon-in-possession criminal law, 18 USC § 922(g)(1), is unconstitutional as applied to non-violent offenders after the Supreme Court's landmark Second Amendment Bruen ruling.  And, of course, the Supreme Court is actively considering the reach and application of its Bruen ruling in the Rahimi cases concerning another § 922(g) prohibition on certain justice-involved persons possessing guns.  But it is unlikley the Rahimi case will clearly resolve the constitutionality of § 922(g)(1).

Donald Trump has already had a profound impact on Second Amendment jurosprudence because he appointed three Justices to the Supreme Court who had a key role in the Court's 2022 Bruen ruling.  But I cannot help but wonder if Trump's status as a non-violent felon subject to § 922(g)(1) might possibly add momentum to the developing Second Amendment jurisprudence that limits who can be forever dispossessed of firearms.  (A notable 2009 article on these issues, titled "Why Can't Martha Stewart Have a Gun?," detailed the lack of longstanding constitutional history supporting a ban on non-violent felons possessing firearms.  Perhaps it is time for an updated new title for this work:"Why Can't Donald Trump Have a Gun?".)

Prior recent related posts:

June 1, 2024 in Celebrity sentencings, Collateral consequences, Second Amendment issues | Permalink | Comments (28)

Friday, May 10, 2024

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.

May 10, 2024 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Wednesday, April 10, 2024

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.

April 10, 2024 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (1)

Tuesday, February 27, 2024

"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.

February 27, 2024 in Collateral consequences, Drug Offense Sentencing, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (30)

Wednesday, February 07, 2024

"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.

February 7, 2024 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0)

Tuesday, January 16, 2024

"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.

January 16, 2024 in Collateral consequences, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (0)

Monday, November 20, 2023

After Rahimi(?): mapping out the next big Second Amendment cases

After the Supreme Court in Heller in 2008 (and McDonald in 2010) first established an enforceable individual Second Amendment right, we all had to wait another dozen years until the Supreme Court in Bruen explained more fully how that right is supposed to be applied.   But, perhaps unsurprisingly, with the more individual-right-friendly Second Amendment standard created by Bruen leading to more individuals prevailing on Second Amendment claims in federal criminal cases, it now seems quite likely that the Justices will be taking up a number of Second Amendment gun cases in the coming Terms.  Of course, the Court already has the notable Rahimi case pending, but a few recent major articles from major papers are already flagging what might be the next big Second Amendment cases.  Consider:

From the New York Times: "The Supreme Court’s Search for a More Attractive Gun Rights Case"

    Subhead: "The next big Second Amendment case, after one on domestic violence, could be about whether the government can disarm a man who lied to get food stamps."

From USA Today, "This man fudged his income to put his family on food stamps. Should he be denied a gun?"

    Subhead: "Second Amendment appeals are arriving at a moment of uncertainty over just how far the Supreme Court's conservative majority is willing to go to roll over gun laws."

Of course, regular readers know these issues have been percolating in lower courts in the roughly 17 months since the Bruen ruling. Indeed, as spelled out in the posts below, I have been flagging these issues since the hours after Bruen was handed down:

November 20, 2023 in Collateral consequences, Second Amendment issues, Who Sentences | Permalink | Comments (2)

Thursday, November 16, 2023

Applying Range, federal judge rules 922(g)(1) violates Second Amendment as applied to person with old DUI conviction

Over at Reason, Jacob Sullum has this effective account of yet another federal district court ruling that a federal criminal gun prohibition violates the Second Amendment.  Here is how Sullum's discussion starts (with links from the original):

The federal ban on gun possession by people with certain kinds of criminal records is often described as applying to "felons," but that shorthand is misleading.  The provision, 18 USC 922(g)(1), actually covers anyone convicted of "a crime punishable by imprisonment for a term exceeding one year."  That is why Pennsylvania resident Edward A. Williams lost his right to own a gun after he was convicted of driving under the influence, a misdemeanor, in 2005.  Had Williams defied Section 922(g)(1) by possessing a firearm, he would have been committing a federal felony punishable by up to 15 years in prison.

That consequence violated Williams' Second Amendment rights, a federal judge ruled on Tuesday.  U.S. District Judge John Milton Younge's decision in Williams v. Garland tracks the logic of a June ruling by the U.S. Court of Appeals for the 3rd Circuit, which includes Pennsylvania. The latter case, Range v. Attorney General, involved a Pennsylvania man who likewise was convicted of a nonviolent misdemeanor: food stamp fraud. Both cases illustrate the breadth of this "prohibited person" category, which includes many Americans with no history of violence.

The full 11-page ruling in Williams v. Garland is available at this link.

Just some (of many) prior related posts:

November 16, 2023 in Collateral consequences, Second Amendment issues | Permalink | Comments (2)

Wednesday, November 15, 2023

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.

November 15, 2023 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (4)

Tuesday, November 07, 2023

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.

November 7, 2023 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (6)

Monday, November 06, 2023

Just a few of many press pieces previewing SCOTUS argument in Rahimi Second Amendment case

Regular readers know that right after the Supreme Court's big 2022 Second Amendment decision Bruen, I have suggested that a number of broad federal criminal firearm prohibitions are now constitutionally suspect (see, eg, early posts here are here).  After Second Amendment challenges started producing mixed outcomes in lower federal courts, SCOTUS finally selected US v. Rahimi to be the first case to adumbrate how Bruen is to be applied to at least one form of federal firearm possession criminalization.   Oral argument in Rahimi is tomorrow morning (Nov 7), and here is a partial round-up of some argument previews from various press sources:

From the New York Times, "Texas Man at Center of Supreme Court Case Says He No Longer Wants Guns"

From Roll Call, "Supreme Court to hear arguments in case that could limit Congress on gun control"

From SCOTUSblog, "Court to hear major gun-rights dispute over domestic-violence restrictions"

From USA Today, "A blockbuster gun rights case lands at the Supreme Court. Here are three justices to watch."

From the Washington Post, "Supreme Court weighs impact of gun ruling on domestic-abuse protections"

A few prior related posts:

November 6, 2023 in Offender Characteristics, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (3)

Friday, October 27, 2023

Federal court rules Second Amendment precludes denial of gun permit based on multiple arrests and dozens of traffic violation and license suspensions

Way back in 2008 when the US Supreme Court first recognized in Heller that the Second Amendment protected an an individual "right of law-abiding, responsible citizens to use arms in defense of hearth and home," I started speculating about whether and how jurisdictions might try to build new gun regulations about this vague "law-abiding" descriptor from Heller.  Could and would governments claim that persons with only misdemeanor convictions had no Second Amendment rights?  How about persons with only traffic tickets or who have only been arrested but not convicted?   Given that most Americans, in my experience, are guilty at some time of speeding or illegal parking or jaywalking or some other public order nuance, taking this "law-abiding" label very seriously might dramatically limit who has Second Amendment rights.

Of course, after Heller, the reach of the Second Amendment was litigated a lot in lower courts in a lot of setting.  But this litigation has taken on a whole new chapter after last year's Bruen ruling by SCOTUS clarified that text, history and tradition provided the proper test for sorting through the Second Amendment's proper application.  Notably, though, the Bruen ruling used the adjective "law-abiding" nearly two dozen times in the course of its reorientation of Second Amendment doctrine.  Thus, Bruen arguably makes understanding this term in this context even more important for the future of constitutional gun rights.

In a couple of weeks, the Supreme Court  will hear oral argument in US v. Rahimi, which will address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization based on the individual asserting gun rights.  But a helpful reader made sure I did not miss a federal district court ruling from New York's federal courts earlier this week that may put traffic scofflaws who love their guns at ease.  This New York Times article, headlined "Traffic Tickets Are No Bar to Owning a Gun in New York City, Judge Rules," provides a useful summary of the ruling and broader context:

The New York Police Department wrongly denied a Brooklyn man a firearm license because of his many traffic violations, a federal judge ruled Tuesday, a decision that could stop the city from considering moral character when deciding whether someone can have a gun.

The case in the Southern District of New York centered on Joseph Srour, a Brooklyn man rejected twice after he applied in 2018 to keep rifles, guns and shotguns in his home for protection. Mr. Srour challenged the department’s decision to reject his application based on the city’s administrative code, which allows a licensing agency, in this case the Police Department, to deny a firearm permit if it determines that an applicant lacks “good moral character” or for “other good cause.”

In his decision, Judge John Cronan, nominated to the bench in 2019 by then President Donald Trump, wrote that the department used “broad and unrestrained” standards when considering Mr. Srour’s case. “Because that unconstitutional exercise of discretion occurs every time a licensing official applies or has applied these provisions, they each are facially unconstitutional,” he wrote, referring to the “good moral character” condition cited by the Police Department....

The ruling by Judge Cronan, which is likely to be heard by the appeals court, could allow people with more serious records than Mr. Srour’s to own a gun if it stands, said David Pucino, legal director of the Giffords Law Center to Prevent Gun Violence. “It would be serious problem,” he said. “These kinds of decisions have the potential to cripple the ability of law enforcement and other regulating authorities to enforce the laws that are on the books. This is an attack on that.”...

Mr. Srour had no criminal convictions, but the New York police twice denied his application to keep firearms in his home based in part on his two arrests, 28 traffic violations, 24 license suspensions and six driver's license revocations. He also had two criminal court summonses for creating a wake while operating a personal watercraft, according to the lawsuit he filed in 2022.

The circumstances surrounding Mr. Srour’s arrests, his failure to disclose them on his application and his poor driving history “portray a lack of good moral character and disregard for the law,” the city wrote in its notice rejecting Mr. Srour’s application. Judge Cronan wrote that those communications were not “models of clarity in explaining the precise legal grounds for denying his applications to possess firearms” and reflected “unfettered discretion.”

“Without doubt, the very notions of ‘good moral character’ and ‘good cause’ are inherently exceedingly broad and discretionary,” he wrote. “Someone may be deemed to have good moral character by one person, yet a very morally flawed character by another.”

Mr. Srour, 49, who sells baby cribs and mattresses, declined to comment on the decision because the case is still pending. His lawyer, Amy Bellantoni, called the ruling “well reasoned and legally sound.”

The full 48-page ruling in Srour v. NYC is available at this link.

October 27, 2023 in Collateral consequences, Second Amendment issues, Who Sentences | Permalink | Comments (4)

Thursday, October 05, 2023

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:

October 5, 2023 in Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Second Amendment issues | Permalink | Comments (6)

Sunday, September 17, 2023

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:

September 17, 2023 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (1)

Thursday, August 31, 2023

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

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

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

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

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

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

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

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

August 31, 2023 in Collateral consequences, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (5)

Thursday, August 10, 2023

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.

August 10, 2023 in Drug Offense Sentencing, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (4)

Friday, July 14, 2023

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:

July 14, 2023 in Gun policy and sentencing, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (3)

Wednesday, July 12, 2023

Some more 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.  And last week, I flagged here some early commentary on the case.  The interesting coverage and commentary on Rahimi and related issues keeps coming, and here are some more of the what folks are saying:

From Bloomberg Law, "Judges Confused by Supreme Court’s Historical Test for Gun Laws"

From NY Gov Kathy Hochul in New York Times, "The Supreme Court Case That Has Me Worried, for Survivors and for My State"

From Reuters, "Key gun control measure in the crosshairs at US Supreme Court"

From Slate, "SCOTUS Is Really Considering if Domestic Abusers Should Be Allowed Guns"

From Spectrum News 1, "Advocates: Next SCOTUS gun rights decision will clarify N.Y. laws"

From USA Today, "How a Second Amendment case at the Supreme Court is putting gun rights groups in a jam"

 

Some (of many) prior recent related posts:

July 12, 2023 in Second Amendment issues, Who Sentences | Permalink | Comments (9)

Thursday, July 06, 2023

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:

July 6, 2023 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (10)

Thursday, June 29, 2023

US District Court concludes Second Amendment requires dismissal of federal felon-in-possession prosecution

In this post last year, I flagged a fascinating order authored by US District Judge Carlton Reeves in a case in which a defendant challenged, on Second Amendment grounds, application of the federal criminal statute prohibiting felons from possessing firearm.  In the order, Judge Carlton Reeves, after stressing the Supreme Court's recent re-orientation of Second Amendment jurisprudence, asked the parties whether he "should appoint a historian to serve as a consulting expert in this matter."  No historian was appointed, but Judge Reeves continued to struggle with how to apply the Supreme Court's landmark Bruen ruling, and that struggle has now produced a 77-page opinion in US v. Bullock, No. 3:18‐CR‐165‐CWR‐FKB (SD Miss. June 28, 2023) (available here).  The opinion includes these passages within its opening discussion:

In this case, the federal government seeks to imprison Jessie Bullock for possessing a firearm as a convicted felon. See 18 U.S.C. § 922(g)(1). Mr. Bullock claims that this is a violation of his Second Amendment rights. He observes that he finished serving his sentence long ago, and the available evidence indicates that the firearm the government complains of was kept in the sanctity of his home. Yet Section 922(g)(1)’s ban on gun possession is a lifetime one.

The question presented appears simple: has the government demonstrated that, as to Mr. Bullock, the federal felon‐in‐possession ban is consistent with America’s “historical tradition of firearm regulation”?  The government says the answer is also simple: “yes.” It points to more than 120 U.S. District Court decisions which recently determined that the government had met its burden — at least in those cases. 

This Court is not so sure.  The government’s citation to the mere volume of cases is not enough.  See Heller, 554 U.S. at 624 n.24 (rejecting decisions of “hundreds of judges”).  There also is doubt about the process those cases used to determine the history of the felon‐in‐possession ban.  In none of those cases did the government submit an expert report from a historian justifying felon disarmament.  In none of those cases did the court possess an amicus brief from a historian.  And in none of those cases did the court itself appoint an independent expert to help sift through the historical record.  It is unsurprising that the government relies on jurisprudence filled with such methodological flaws. The same errors define the Supreme Court’s own Second Amendment jurisprudence....

Nevertheless, the standard announced by the Supreme Court in Bruen is the law of the land.  It must be enforced. Under that standard, the government has failed to meet its burden.  The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868 — the years the Second and Fourteenth Amendments were ratified. 

The government’s brief in this case does not identify a “well‐established and representative historical analogue” from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense. Bruen, 142 S. Ct. at 2132; see Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1791 (2012) (explaining that “tens of millions” of free‐world Americans have criminal records).

American history might support state‐level felon disarmament laws; that at least would align with principles of federalism.  It might support disarmament of persons adjudicated to be dangerous — as Justice Barrett found when she sat on the Seventh Circuit. See Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting).  And it likely does support disarmament of persons convicted of death‐eligible offenses.  The power to take someone’s life necessarily includes the lesser power to disarm them.  The government’s arguments for permanently disarming Mr. Bullock, however, rest upon the mirage of dicta, buttressed by a cloud of law review articles that do not support disarming him.  In Bruen, the State of New York presented 700 years of history to try and defend its early 1900s‐era gun licensing law.  That was not enough.  Bruen requires no less skepticism here, where the challenged law is even younger.

For the reasons that follow, therefore, Mr. Bullock’s motion to dismiss will be granted.  

Some (of many) prior recent related posts:

June 29, 2023 in Collateral consequences, Second Amendment issues | Permalink | Comments (8)

Wednesday, June 28, 2023

"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.

June 28, 2023 in Gun policy and sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues, Second Amendment issues | Permalink | Comments (0)

Monday, June 26, 2023

Last official SCOTUS order list of Term and still no action on acquitted conduct cases (or big Second Amendment case)

Because the Supreme Court typically wraps up its Term before Independence Day, court watchers expect the last handful of pending SCOTUS cases to be resolved this week.  One notable criminal case remains, Counterman v. Colorado, though expected rulings on affirmative action and student debt relief are sure to garner the most attention.

But, as regular readers know, my SCOTUS docket attention has often been focused on the large number of acquitted conduct cases that the Justices keep relisting.  I believe there are now at least 13 pending cases coming from at least seven different circuits that raise acquitted conduct sentencing issues in some way, and the McClinton case in which I filed an amicus brief in support of certiorari has been before the Justices for more than a year.  This morning brought the last "official" SCOTUS order list, and all the acquitted conduct cases are entirely missing from the order list yet again.  I had really hoped that this final official order list might finally result in some resolution from SCOTUS, but I guess the waiting game continues.

Also notable, especially for Second Amendment fans, the Fifth Circuit's controversial ruling in Rahimi (first discussed here), which declared unconstitutional 18 USC § 922(g)(8)'s criminal prohibition on gun possession by those subject to certain domestic-violence protective orders, is now also in relist mode.  The federal government, as noted here, sought quick SCOTUS review and the case received its first formal consideration by the Justices last week.  But Rahimi is also missing from this morning's SCOTUS order list, and so will remain unclear when (as well as how) the Supreme Court will address this cert petition. 

I understand the Justices will often have one last "clean-up" conference and order list after the Justices complete its merits docket.  (As noted in this SCOTUSblog post, last year's "clean up" order list produced a few cert grants and a lot of statements concerning cert denials.)  So I think there may be one more chance for some resolution of these pending matters in this Term.  But if not resolved in the "clean-up" conference, we may have to wait until at least September for any action on these cases.

A few of many related posts:

UPDATE:  A helpful colleague pointed me to this interesting SCOTUSblog post from early 2022 that provides data on relists and eventual cert grants.  I continue to believe and fear that the seemingly endless number of relists in the acquitted conduct cases is a result of multiple statements regarding denials of cert still being polished.  But at some point time will tell. 

June 26, 2023 in Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, June 22, 2023

Bruen brouhahas: split Seventh Circuit panel remands for "Ph.D.-level historical inquiry" on felon in possession

I just saw that earlier this week the Seventh Circuit had an interesting new ruling adding to what I am now going to call the Bruen brouhahas surrounding federal criminal gun prohibitions. Here is how the majority opinion in Atkinson v. Garland, No. 22-1557 (7th Cir. June 20, 2023) (available here). Here is how the majority opinion in Atkinson starts:

Before us is a Second Amendment challenge to the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1). The appeal reaches us in the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022). That development is significant because Bruen announced a new framework for analyzing restrictions on the possession of firearms.  No longer, the Supreme Court made clear, can lower courts balance interests — of an individual’s right to possess a firearm and the state’s commitment to promoting personal or public safety — to resolve the constitutionality of the challenged restriction.  The new approach anchors itself exclusively in the Second Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively prov[ing] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127.

The Supreme Court decided Bruen after the district court faithfully applied our precedent and rejected Patrick Atkinson’s Second Amendment challenge to § 922(g)(1).  The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen.  In these circumstances, we think the best course is to remand to allow the district court to undertake the Bruen analysis in the first instance.

Here is how Judge Woods' dissenting opinion starts:

The question before us in this case could not be more important: may individual rights under the Second Amendment be curtailed or denied only on the basis of a granular, case-by-case analysis, or does Congress have the power to enact categorical restrictions?  And if some categorical limits are possible and others are not, what sorting principle may or must we use to separate the permissible from the impermissible?

My colleagues have taken the position that we need further input from the district court before we can tackle the present case. With respect, I do not agree with them.  The issue before us is whether 18 U.S.C. § 922(g)(1) is compatible with the Second Amendment.  That statute prohibits those convicted of a crime for which the punishment exceeds one year in prison (usually felonies) from possessing a firearm or ammunition.  This is a pure question of law, and our consideration is therefore de novo.  If we think that we would benefit from further exploration of the issue, in light of the intervening decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), nothing prevents us from asking the parties to submit supplemental briefs. Exactly that process occurs when we are confronted with an unfamiliar question of foreign law — another setting in which we have the authority to conduct our own research.  See Fed. R. Civ. P. 44.1.  Just so here: we must decide whether, in light of the textual and historical materials to which Bruen directs us, section 922(g)(1) is constitutional.  Remanding this case to the district court will not reduce our responsibility to evaluate that question independently when the case inevitably returns to us.

My own assessment of the materials that now govern Second Amendment questions per Bruen convinces me that the  categorical prohibition created by section 922(g)(1) passes muster under the Constitution.  I would therefore affirm the district court now, without saddling it with a Ph.D.-level historical inquiry that necessarily will be inconclusive.

June 22, 2023 in Collateral consequences, Second Amendment issues | Permalink | Comments (1)

Sunday, June 18, 2023

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:

June 18, 2023 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (1)

Wednesday, June 14, 2023

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.

June 14, 2023 in Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (5)

Thursday, June 08, 2023

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:

June 8, 2023 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (2)

Tuesday, June 06, 2023

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.

June 6, 2023 in Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (15)

Friday, June 02, 2023

Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition

An Eighth Circuit panel today issued a significant ruling rejecting a federal criminal defendant's claim that "he had a constitutional right under the Second Amendment to possess a firearm as a convicted felon."  The ruling in US v. Jackson, No. 22-2870 (8th Cir. June 2, 2023) (available here), should be read in full by anyone following post-Bruen jurisprudence closely.  Here are some excepts from the opinion: 

ackson also appeals the district court’s denial of his motion to dismiss the indictment.  He argues that § 922(g)(1) is unconstitutional as applied to him, because his drug offenses were “non-violent” and do not show that he is more dangerous than the typical law-abiding citizen.

We conclude that the district court was correct that § 922(g)(1) is not unconstitutional as applied to Jackson based on his particular felony convictions.  The Supreme Court has said that nothing in District of Columbia v. Heller, 554 U.S. 570 (2008), which recognized an individual right to keep and bear arms, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626; see McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion).  The decision in Bruen, which reaffirmed that the right is “subject to certain reasonable, well-defined restrictions,” 142 S. Ct. at 2156, did not disturb those statements or cast doubt on the prohibitions. See id. at 2157 (Alito, J., concurring); id. at 2162 (Kavanaugh, J., concurring, joined by Roberts, C.J.); id. at 2189 (Breyer, J., dissenting, joined by Sotomayor and Kagan, JJ.).  Given these assurances by the Supreme Court, and the history that supports them, we conclude that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).

History shows that the right to keep and bear arms was subject to restrictions that included prohibitions on possession by certain groups of people.  There appear to be two schools of thought on the basis for these regulations.  A panel of the Third Circuit recently surveyed the history in light of Bruen and concluded that legislatures have longstanding authority and discretion to disarm citizens who are not “lawabiding” — i.e., those who are “unwilling to obey the government and its laws, whether or not they had demonstrated a propensity for violence.” Range v. Att’y Gen., 53 F.4th 262, 269 (3d Cir. 2022) (per curiam), vacated, reh’g en banc granted, 56 F.4th 992 (3d Cir. 2023).  Jackson contends that a legislature’s traditional authority is narrower and limited to prohibiting possession of firearms by those who are deemed more dangerous than a typical law-abiding citizen.  While the better interpretation of the history may be debatable, we conclude that either reading supports the constitutionality of § 922(g)(1) as applied to Jackson and other convicted felons, because the law “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130....

In sum, we conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms.  Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.  Consistent with the Supreme Court’s assurances that recent decisions on the Second Amendment cast no doubt on the constitutionality of laws prohibiting the possession of firearms by felons, we conclude that the statute is constitutional as applied to Jackson.  The district court properly denied the motion to dismiss the indictment.

June 2, 2023 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (19)

Tuesday, April 11, 2023

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:

April 11, 2023 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0)

Monday, March 20, 2023

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:

March 20, 2023 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (29)

Monday, February 20, 2023

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.

February 20, 2023 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (25)

Friday, February 10, 2023

Covering at "The Soapbox" some legal issues getting various folks in a lather

At "The Soapbox" section of The New Republic, Matt Ford has some recent coverage of a couple of hot legal issues that I have also been giving considerable attention.  Here are the full headlines, links and a key paragraph:

From last week, "When You’re Sentenced for a Crime That Even a Jury Agrees You Didn’t Commit: The Supreme Court might end an infuriatingly unjust practice in criminal sentencing."

While some lawmakers have proposed fixing the issue through legislation, Congress has yet to pass legislation to restrict or ban it. The U.S. Sentencing Commission is also considering changes to the federal sentencing guidelines that would limit acquitted-conduct sentencing in some forms in federal cases. McClinton told the court that those modest proposals should not prevent it from addressing the underlying constitutional issue, which is much broader and much more urgent. He instead aptly quoted from Scalia’s dissent nearly a decade earlier: “This has gone on long enough.” The court will announce in the coming months whether it will take up the case — and, perhaps, whether it agrees.

From this week, "The Second Amendment’s Legal Landscape Is Getting Weirder: The Supreme Court’s Bruen decision has given rise to some disturbing new interpretations of what constitutes the right to bear arms."

The 6–3 [Bruen] ruling announced a new test for lower courts to apply when reviewing gun laws in general, one that would make it far more difficult for many types of gun laws to survive judicial scrutiny.  The results have been predictable and far-reaching.

Last week, the Fifth Circuit Court of Appeals overturned a federal provision that prohibits people under restraining orders for domestic violence from possessing firearms.  The following day, a federal district court in Oklahoma struck down a similar provision that applied to people who unlawfully use or are addicted to a controlled substance.  The Third Circuit Court of Appeals parted ways with the other courts when it came to the provision’s application to people convicted of felonies.  But even that decision may not be long for this world.

February 10, 2023 in Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (0)

Wednesday, February 08, 2023

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'."

February 8, 2023 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)

Sunday, February 05, 2023

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:

February 5, 2023 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (1)

Thursday, February 02, 2023

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:

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.

February 2, 2023 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (32)

Monday, January 16, 2023

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:

January 16, 2023 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (2)

Monday, January 09, 2023

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:

January 9, 2023 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, December 13, 2022

Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim

In this post last month, I flagged a fascinating order authored by US District Judge Carlton Reeves in a case in which a defendant was brining a Second Amendment challenge to the federal criminal statute prohibiting felons from possessing firearm.  In the order, Judge Reeves, after stressing the Supreme Court's recent re-orientation of Second Amendment jurisprudence, asked the parties whether he "should appoint a historian to serve as a consulting expert in this matter" because the "Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals," and so an "expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions."

Today, as reported here by CNN, the Department of Justice filed its reponse to the order, and it "is advising a federal judge in Mississippi that he does not need to hire a historian to determine whether a contested gun law complies with the Supreme Court’s most recent Second Amendment opinion. Here is more from the CNN piece:

In the new filing, the Biden administration defended a federal statute barring felons from possessing firearms and urged the court not to hire an historian, arguing that the government should win the case without such an intervention.  “Our legal tradition rests in large part on the responsibility of the parties to present materials necessary to support their legal positions,” a government lawyer said in the new brief.

“The prospect of judges in all 94 federal judicial districts retaining a historian would be an expensive proposition and a departure from the typical reliance on the parties to provide support for their legal positions,” US Attorney Darren J. LaMarca wrote.

The Government's full nine-page filing is available at this link, and he is one of many interesting passages:

This Court ... should look to the parties to provide any necessary support for their positions as to whether the “the Second Amendment’s plain text” extends a right to keep and bear arms to persons convicted of felony offenses and, if so, whether barring them from possessing firearms “is consistent with this Nation’s historical tradition of firearms regulation.”  Bruen, 142 S.Ct. at 2130.  If the Court concludes that a detailed analysis of these issues is necessary to resolve this case, the Government stands ready to submit further and more detailed briefing as ordered by the Court.  The Government anticipates that such materials would provide ample basis for deciding the motion pending in this case.  See, e.g., Range, 53 F.4th at 266 (“the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition”).  Following our standard adversarial practice, the Court then can decide which of the competing perspectives is the more persuasive, supplemented with the Court’s own examination of the historical record as illuminated by the parties.

Some prior recent related posts:

December 13, 2022 in Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (5)

Monday, December 05, 2022

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’"

December 5, 2022 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0)

Wednesday, November 16, 2022

Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

A Third Circuit panel today issued the first major circuit ruling upholding the constitutionality of 18 U.S.C. § 922(g)(1), federal laws categorical prohibition on felons possession of firearms or ammunition since the SUpreme Court's landmark Second Amendment ruling in Bruen. Here is how the 50-page, per curiam panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), starts and concludes:

In District of Columbia v. Heller, the Supreme Court held that “the right of the people to keep and bear Arms,” enshrined in the Second Amendment, is an individual right. 554 U.S. 570, 595 (2008). While the precise contours of that individual right are still being defined, the Court has repeatedly stated that it did not question the “longstanding prohibition[] on the possession of firearms by felons.” Id. at 626.

Appellant Bryan Range falls in that category, having pleaded guilty to the felony-equivalent charge of welfare fraud under 62 Pa. Cons. Stat. § 481(a).  He now brings an as-applied challenge to 18 U.S.C. § 922(g)(1), contending that his disarmament is inconsistent with the text and history of the Second Amendment and is therefore unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).  We disagree.  Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible citizens” of the polity, id. at 2131, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition.  Accordingly, because Range’s felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court’s summary judgment in favor of the Government....

We have conducted a historical review as required by Bruen and we conclude that Range, by illicitly taking welfare money through fraudulent misrepresentation of his income, has demonstrated a rejection of the interests of the state and of the community.  He has committed an offense evincing disrespect for the rule of law.  As such, his disarmament under 18 U.S.C. § 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.

Some prior recent related posts:

November 16, 2022 in Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (15)

Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

In this post from a couple of months ago, I noted the notable 25-page ruling in US v. Quiroz, No. PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022) (available here), in which a federal district court in Texas decided that Bruen renders § 922(n) unconstitutional.  As of earlier this week, another federal district court, this one in Oklahoma, formally agreed.  Here is the start and conclusion of the 12-page opinion in US v. Stambaugh, No. CR-22-00218-PRW-2 (W.D. Ok. Nov. 14, 2022) (available here):

Before the Court is Defendant Stolynn Shane Stambaugh’s Motion to Dismiss Count 3 of the Indictment as Unconstitutional (Dkt. 31) and the United States’ Response in Opposition (Dkt. 38). Stambaugh seeks to dismiss Count 3 — Receipt of a Firearm by a Person Under Indictment, in violation of 18 U.S.C. § 922(n) — on grounds that § 922(n), as applied to him, violates the Second Amendment to the United States Constitution.  The motion has been briefed and heard. For the reasons explained below, the Court GRANTS Stambaugh’s motion (Dkt. 31)....

A historical analogue to support constitutional applications of § 922(n) might well exist, but the United States hasn’t pointed to it.  And because it is the United States’ burden to demonstrate that laws like § 922(n) are “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” that failure is fatal.  While the United States needed not find a “historical twin,” surety laws and § 922(n) are simply not “analogous enough to pass constitutional muster,” particularly not in a case like this, where there is nothing in the record to support the United States’ contention that Stambaugh is categorically a “dangerous person” merely because he was indicted for larceny. Accordingly, the Court finds that § 922(n) is unconstitutional as applied to Stambaugh and therefore GRANTS his motion to dismiss Count 3 of the Indictment.

Some prior recent related posts:

November 16, 2022 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0)

Saturday, November 12, 2022

New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"

A few months ago, in a series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here), I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges (see posts here are here).  I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 USC § 922(g)(1) and the federal drug-user-in-possession statute, 18 USC § 922(g)(3).  Interestingly, as detailed in prior posts here and here, a few district courts have already declared other parts of § 922 unconstitutional.  And this past week a new opinion adds § 922(g)(8) to the post-Bruen carnage.

Title 18 USC § 922(g)(8) makes it a federal crime for any person to possess a firearm while subject to a domstic violence restraining order.  In his opinion in US v. Perez-Gallan, No. PE:22-CR-00427-DC (SD Texas Nov. 10, 2022) (available here), US District Judge David Counts works through Bruen analysis to conclude "that § 922(g)(8) is unconstitutional under Bruen's framework." The opinion is 30+ pages long, and it starts and ends this way:

Before Bruen, the Second Amendment looked like an abandoned cabin in the woods.  A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth.  Firearm regulations are that overgrowth.  Starting with the Federal Firearms Act in 1938, laws were passed with little — if any — consideration given to their constitutionality.  That is, until the Supreme Court intervened in Bruen.

No longer can lower courts account for public policy interests, historical analysis being the only tool.  But after growing unchecked for almost 100 years, today’s tangle of gun laws has left lower courts with a gordian knot.  And after engaging with this Nation’s tradition of firearm regulations several times already, the Court’s unanswered question is whether Bruen demands lower courts manicure the Second Amendment’s landscape by scalpel or chainsaw....

How strictly or flexibly a court reads Bruen impacts its conclusion.  Bruen’s mandate is that a gun regulation’s constitutionality hinge solely on the historical inquiry.  According to Bruen, that can be this Court’s only consideration. The Court concedes, therefore, that a court reading Bruen strictly could have arguably stopped after Section IV of this Opinion.

That said, this Court embraces Bruen’s charge.  Thus, after sifting through the history above, this Court finds that the Government did not prove that § 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen.  As a result, the Court holds that § 922(g)(8) is unconstitutional under Bruen’s framework.

Some prior recent related posts:

November 12, 2022 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (8)

Tuesday, November 01, 2022

Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen

This new CNN article, headlined "Federal judge blasts the Supreme Court for its Second Amendment opinion," alerted me to a notable new opinion emerging from new challenges to federal felon in possession laws in the wake of the Supreme Court's new Second Amendment standards set forth in Bruen.  Here are the basics from the press piece:

A federal judge based in Mississippi has released a scorching order expressing frustration with the Supreme Court’s Second Amendment opinion issued last summer and ordered the Justice Department to brief him on whether he needs to appoint an historian to help him decipher the landmark opinion.

The opinion in New York State Rifle & Pistol Association v. Bruen changed the framework judges must use to review gun regulations. Going forward, Justice Clarence Thomas said that a gun law could only be justified if it is “consistent with this Nation’s historical tradition of firearm regulation.”

Judge Carlton Reeves — who is considering a case concerning a federal statute prohibiting felons from possessing firearms — said he is not sure how to proceed.  “This court is not a trained historian,” Reeves wrote in an order released last week.  “The justices of the Supreme Court, as distinguished as they may be, are not trained historians,” he continued. “And we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” he said.  The Bruen decision, he said, requires him to “play historian in the name of constitutional adjudication.”

Reeves, who sits on the United States District Court for the Southern District of Mississippi, ordered the parties, including the Justice Department, to brief him on whether he should appoint a historian within 30 days.  “Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter,” he said.

The challenger to the felon possession law, Jesse Bullock, says the regulation cannot withstand the Supreme Court’s latest decision interpreting the Second Amendment. “Founding era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” Bullock argued.  

The full six-page order in US v. Bullock is available at this link. Here are a few passages:

Bruen instructs courts to undertake a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2130. In fact, Justice Alito commends the majority for its “exhaustive historical survey.” Id. at 2157 (Alito, J., concurring).  

But historical consensus on this issue is elusive.  As the Seventh Circuit put it, “scholars continue to debate the evidence of historical precedent for prohibiting criminals from carrying arms.”  United States v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010) (collecting authorities); see also United States v. Skoien, 614 F.3d 638, 650 (7th Cir. 2010) (Sykes, J., dissenting) (“scholars disagree about the extent to which felons — let alone misdemeanants — were considered excluded from the right to bear arms during the founding era.”)....

This Court is not a trained historian.  The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform.  See id. at 2177 (Breyer, J., dissenting) (“Courts are, after all, staffed by lawyers, not historians.”).  And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.  Yet we are now expected to play historian in the name of constitutional adjudication....

Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter.  See Fed. R. Evid. 706.  This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals.  An expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions. 

As many of the readers of this blog surely know, the author of this interesting order is not just a federal district judge, he is also the new Chair of the US Sentencing Commission. Interesting times.

Prior recent related posts:

November 1, 2022 in Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (7)

Monday, October 31, 2022

"Guns, Mass Incarceration, and Bipartisan Reform: Beyond Vicious Circle and Social Polarization"

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

Gun violence in modern America persists in the face of irreconcilable views on gun control and the right to bear arms.  Yet one area of agreement between Democrats and Republicans has received insufficient attention: punitiveness as a means of gun control.  The United States has gravitated toward a peculiar social model combining extremely loose regulations on guns and extremely harsh penalties on gun crime.  If someone possesses a gun illegally or carries one when committing another crime, such as burglary or drug dealing, draconian mandatory minimums can apply.  These circumstances exemplify root causes of mass incarceration: overreliance on prisons in reaction to social problems and unforgiving punishments for those labeled as “violent” criminals.  Contrary to widespread misconceptions, mass incarceration does not primarily stem from locking up petty, nonviolent offenders caught in the “War on Drugs.”  Most prisoners are serving time for violent offenses.  Steep sentence enhancements for crimes involving guns illustrate how American justice revolves around counterproductive, costly practices that disproportionately impact minorities.

This multidisciplinary Article envisions future reforms with the capacity to transcend America’s bitter polarization.  A precondition to change is not for conservatives and liberals to wholeheartedly agree on issues like systemic racism or the right to bear arms.  Rather, possibilities for penal reform are likelier when each side can come to the negotiating table for its own reasons.  A paradigm shift in conservative America may prove especially indispensable, as Republicans tend to be more supportive of harsh punishments and Democrats are unlikely to achieve reform nationwide on party-line votes.  This shift has already occurred to an extent given the rise of penal reform in red states.  But both conservatives and liberals have failed to significantly reduce mass incarceration by recurrently excluding “violent” offenders from reform initiatives.

The Article explores how conservatives and liberals could gradually converge toward sentencing reform on gun crime.  This could ultimately have a ripple effect on American sentencing norms, leading them closer to those of Western democracies with more effective and humane penal systems.  Such bipartisanship is less elusive than it might seem.  A rehabilitative approach toward gun crime fits with the evolution of American conservatism, which believes that guns should not be vilified since they are part of the nation’s identity.  Similarly, the rehabilitation of people convicted of gun crime is consistent with cornerstones of modern American liberalism, namely stricter gun control and opposition to mass incarceration as an unjust, racist system.  As opposite sides will probably retain much of their worldview even if their perspectives evolve to a degree, new ways of thinking could help bring reformers together.  These social transformations cannot be predicted but should be theorized.

October 31, 2022 in Elections and sentencing issues in political debates, Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)

Thursday, October 13, 2022

Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen

A helpful reader sent me this morning an interesting new federal district court opinion concerning Second Amendment limits on a couple of federal criminal laws.  Here is how the opinion in US v. Price, No. 2:22-cr-00097 (SD WV Oct. 12, 2022) (available here), gets started:

The question before the court is whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms, and 18 U.S.C. § 922(k), which prohibits possession of a firearm with an altered, obliterated, or removed serial number, are constitutional after the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). After considering the arguments presented here, I find that Section 922(g)(1) is constitutional, but I find that Section 922(k) is not.  For the following reasons, Mr. Price’s motion to dismiss the indictment against him is GRANTED as to Count Two and DENIED as to Count One.

Based on my first quick read of this opinion, I am not sure I am wholly convinced by the analysis driving either part of the ruling.  But I am neither a Second Amendment expert nor a historian, so what do I know about such matter (other than Bruen continues to provide a basis for a lot of new arguments against a lot of federal criminal laws).

Of course, the rejection of a Bruen-based attacks on felon-in-possession prohibition is already become quite common.  As the Price opinion notes "Relying on the same ['law-abiding'] dicta in the wake of Bruen, at least nine federal district courts have rejected constitutional challenges to Section 922(g)(1)."  What still seems notable here is that the author of this opinion, District Judge Joseph Goodwin, reads Bruen to require him to strike down another part of 18 U.S.C. § 922 while making this point: "that firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable, that argument is the exact type of means-end reasoning the Supreme Court has forbidden me from considering."  Price, Slip op. at 14. 

October 13, 2022 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (24)