Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights
U.S. v. Duarte,
Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights
Today’s U.S. v. Duarte, written by Judge Carlos Bea and joined by Judge Lawrence VanDyke, concludes that the Second Amendment protects some felons (at least after the end of their criminal sentences). The majority begins with the principle that:
[The Supreme Court’s decision in] Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment’s plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government’s burden to prove that the challenged law is consistent with this Nation’s historical tradition of firearm regulation.
It reasons, much historical analysis later, with the view that:
A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are “distinctly similar” to Duarte’s underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender’s estate.
And, the majority concludes, this defendant’s particular past convictions—for vandalism, drug possession, evading a peace officer, and being a felon in possession of a firearm—did not qualify.
Judge Milan Smith dissents, concluding that pre-Bruen Ninth Circuit precedent categorically holds that all felons lack Second Amendment rights; the majority and the dissent disagree on whether Bruen overruled that precedent. The dissent, in particular, argues that (1) Bruen “repeatedly limited its definition of the scope of the right to ‘law-abiding’ citizens, using that phrase no fewer than fourteen times throughout the opinion,” (2) “Nothing … in Bruen reflects a retreat from the Court’s earlier statement in Heller that ‘longstanding prohibitions on the possession of firearms by felons and the mentally ill’ are ‘presumptively lawful,'” and (3) concurrences in Bruen reaffirmed the Heller view with regard to felons.
The panel majority responds, among other things, that “we do not think that the Supreme Court, without any textual or historical analysis of the Second Amendment, intended to decide the constitutional fate of so large a population in so few words and with such little guidance…. [W]e agree with the Third Circuit that Bruen’s scattered references to ‘law-abiding’ and ‘responsible’ citizens did not implicitly decide the issue in this case.” It also takes the view that, “‘Simply repeat[ing] Heller‘s language’ about the ‘presumptive[] lawful[ness]’ of felon firearm bans will no longer do after Bruen,” given Bruen’s call for a historical analysis, and given that “the historical pedigree of felon firearm bans was never an issue the Heller Court purported to resolve.”
The government will very likely petition for rehearing and for en banc review in this case. That review will probably be influenced by the Supreme Court’s Rahimi case, which deals with whether people subject to domestic violence restraining orders lose their Second Amendment rights, and which is due to come down from the Court by June 30. The question in Rahimi and the question in this case aren’t identical, but they share considerable similarities.
Note also that the government has already asked the Supreme Court to consider the Third Circuit’s Range case, which reached a similar result. That the petition is being held, pending Rahimi. It seems likely that the Court will instruct the Third Circuit to reconsider the question in light of the Rahimi holding, just as the Ninth Circuit panel (and perhaps the en banc court) will be doing the same.
Another federal appeals court has determined the Second Amendment protects the gun rights of at least some convicted felons.
On Thursday, a three-judge panel from the Ninth Circuit Court of Appeals sided with defendant Steven Duarte and vacated his conviction. They found the federal ban on felons possessing firearms was unconstitutional as applied to Duarte because his underlying convictions didn’t involve violent crimes.
“Duarte is an American citizen, and thus one of ‘the people’ whom the Second Amendment protects,” Judge Carlos Bea wrote for a 2-1 court in US v. Duarte. “The Second Amendment’s plain text and historically understood meaning therefore presumptively guarantee his individual right to possess a firearm for self-defense. The Government failed to rebut that presumption by demonstrating that permanently depriving Duarte of this fundamental right is otherwise consistent with our Nation’s history.”
The ruling deepens the federal circuit split over the constitutionality of the law that bars anyone convicted of a crime punishable by more than two years in prison from ever owning or handling firearms again. Felon-in-possession charges are the most common federal gun prosecutions in the nation. Continued disagreement over the constitutionality of the law underlying those charges may motivate the Supreme Court to address the issue itself directly, especially the question of whether people who aren’t violent present enough of a dangerous threat to be worthy of a lifetime gun ban. The history and tradition test the Court set in 2022’s New York State Rifle and Pistol Association v. Bruen has opened up new challenges to all kinds of gun laws, and the Court has yet to hand down another Second Amendment ruling, though the case its current considering is likely to delve into the dangerousness question.
The Department of Justice, which defended the federal law, did not respond to a request for comment. However, it already requested that the Supreme Court review Garland v. Range, the other case in which a federal appeals court found the gun ban unconstitutional as applied to non-violent felons.
Duarte was convicted of illegal gun possession after throwing a gun out of a car window during a police chase. That charge was just the latest in a long rap sheet. However, the panel found none of those previous convictions were for violent crimes, and it determined they probably wouldn’t have resulted in a lifetime gun ban during the founding era.
“Duarte’s underlying vandalism conviction, we have explained, likely would have made him a misdemeanant at the Founding,” Judge Bea wrote. “Duarte’s second predicate offense—felon in possession of a firearm, Cal. Pen. Code § 29800(a)(1)—was a nonexistent crime in this country until the passage of the Federal Firearms Act of 1938. As for Duarte’s remaining convictions—drug possession and evading a peace officer—we do not know whether either crime traces back to an analogous, Founding-era predecessor because the Government failed to proffer that evidence. Based on this record, we cannot say that Duarte’s predicate offenses were, by Founding era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.”
Milan Smith, a George W. Bush appointee like Judge Bea, dissented. He argued the Supreme Court had already established a law-abiding standard for gun ownership through non-binding dicta in its previous Second Amendment cases.
“Bruen reiterates that the Second Amendment right belongs only to law-abiding citizens,” he wrote. “Duarte’s Second Amendment challenge to 18 U.S.C. § 922(g)(1), as applied to nonviolent offenders, is therefore foreclosed.”
But the majority rejected that reasoning.
“Quite the opposite, Heller defined ‘the people’ in the broadest of terms: the phrase’ unambiguously refer[red]’ to ‘all Americans,’ not ‘an unspecified subset,’” Judge Bea wrote. “More importantly, Bruen ratified that broad definition, quoting Heller‘s language directly to hold that ‘[t]he Second Amendment guarantee[s] to ‘all Americans’ the right to bear commonly used arms in public.’”
He went on to say that the majority’s own reading of history “confirms that ‘the people’ included, at a minimum, all American citizens—without qualification.” After finding the Second Amendment applies to Duarte, the panel then turned to the historical record to see if a Founding Era gun law could justify the modern day one, as required by Bruen. The government offered examples of either gun sales or possession bans against “Loyalists, Catholics, Indians, and Blacks” to bolster its case the current prohibition fit in the accepted tradition of regulation. But the majority rejected that argument because, even putting aside the bigoted nature of many of them, they don’t closely match the modern ban.
“Laws that disarmed British Loyalists, Catholics, Indians, and Blacks fail both the ‘why’ and ‘how’ of Bruen’s analogical test,” Judge Bea wrote. “First, the ‘why.’ There is a solid basis in history to infer that states could lawfully disarm these groups because they ‘were written out of ‘the people’ altogether. But Duarte is an American citizen and counts among ‘the people’ by both modern and Founding-era standards. And insofar as legislatures passed these laws to prevent armed insurrections by dangerous groups united along political, ideological, or social lines, the Government offers no historical evidence that the Founding generation perceived formerly incarcerated, non-violent criminals as posing a similar threat of collective, armed resistance.”
The majority also noted those bans were often less expansive than the current federal ban, and earlier generations enacted them with different goals in mind.
“Insofar as these laws were meant as ‘merely temporary’ measures, that ‘disarm[ed] [a] narrow segment of the population’ because they ‘threaten[ed] . . . the public safety,’ that does not justify permanently disarming all nonviolent felons today,” Judge Bea wrote. source
Other Important 2nd Amendment Cases
felons can posses gun cases
Federal Judge Tosses Gun Possession Case Against Convicted Felon United States v. Bullock
Third Circuit Holds that a Nonviolent felon May Not Be Stripped of Second Amendment Rights.
Convicted felons have Second Amendment right to own guns, Louisville judge rules
Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights
UNITED STATES v. DUARTE (2020)
United States Court of Appeals, Second Circuit.
UNITED STATES of America, Appellee, v. Alexander DUARTE, aka Cabeza, Defendant-Appellant.
No. 17-282-cr
Decided: March 19, 2020
PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., STEVEN J. MENASHI, Circuit Judges.
FOR DEFENDANT-APPELLANT: David J. Williams, Jarvis, McArthur & Williams LLC, Burlington, VT. FOR APPELLEE: Laura Higgins, Assistant United States Attorney (Tiffany H. Lee, Assistant United States Attorney, on the brief), for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Rochester, NY.
SUMMARY ORDER
Alexander Duarte appeals from a judgment of conviction entered by the District Court (Vilardo, J.) after a plea of guilty pursuant to a plea agreement. Duarte argues that his sentence is procedurally unreasonable because the District Court failed to explain why it imposed a sentence that is 90 months longer than the sentence Duarte’s co-conspirator received for substantially similar conduct. The Government responds that Duarte’s sentencing challenge is barred by the terms of the appeal waiver in his plea agreement and that, in any event, his sentence is reasonable. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to dismiss this appeal in view of Duarte’s valid appeal waiver.
“Waivers of the right to appeal a sentence are presumptively enforceable.” United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010). They are “unenforceable only in very limited situations, such as when the waiver was not made knowingly, voluntarily, and competently, when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, when the government breached the plea agreement, or when the sentencing court failed to enunciate any rationale for the defendant’s sentence.” Id. (quotation marks omitted).
Duarte first argues that he did not knowingly and voluntarily waive his right to appeal because the District Court failed to inform him that he was giving up his right under 18 U.S.C. § 3742(a)(1) to appeal a sentence “imposed in violation of law.” We reject this argument. The waiver specifically references § 3742 and explains that Duarte is giving up his right to appeal under that statute. In addition, during Duarte’s guilty plea proceedings, the District Court explained the terms of the appeal waiver, and Duarte confirmed that he understood. The record thus “clearly demonstrates that the waiver was ․ knowing (in the sense that the defendant fully understood the potential consequences of his waiver).” United States v. Ready, 82 F.3d 551, 557 (2d Cir. 1996) (quotation marks omitted).
Duarte also argues that the appeal waiver is unenforceable because the District Court failed to “state in open court the reasons for its imposition” of Duarte’s sentence, as required by 18 U.S.C. § 3553(c)(1). Duarte further claims that the District Court was required under 18 U.S.C. § 3553(a)(6) to address why it imposed a sentence that was longer than his co-conspirator’s sentence, but that it failed to do so. We disagree. As Duarte acknowledges, this is not a case in which the sentencing court “failed to enunciate any rationale” for the sentence. Arevalo, 628 F.3d at 98 (quotation marks omitted). To the contrary, the District Court gave several reasons to justify Duarte’s sentence, including that Duarte had committed “a serious drug offense” involving “a serious firearm,” in which “a life was taken.” App’x 110. Allegations that the District Court failed specifically to address the § 3553(a)(6) sentencing factor do not present one of the “limited situations” that prompt us to ignore an appellate waiver. Arevalo, 628 F.3d at 98; see United States v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011).1
We have considered Duarte’s remaining arguments and conclude that they are without merit. For the foregoing reasons, Duarte’s appeal is hereby DISMISSED.
FOOTNOTES
1. We would also reject Duarte’s argument relating to § 3553(a)(6) on the merits. The District Court was not required to explain why it imposed a longer sentence on Duarte than the sentence his co-conspirator received. See United States v. Banks, 464 F.3d 184, 190 (2d Cir. 2006). “[S]ection 3553(a)(6) requires a district court to consider nationwide sentence disparities, but [it] does not require a district court to consider disparities between co-defendants.” United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008).