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Convicted felons have Second Amendment right to own guns, Louisville judge rules

The Truth News — Thu, 20 Jun 2024 08:42:17 +0000

Convicted felons have Second Amendment right to own guns, Louisville judge rules

LOUISVILLE, Ky. (WDRB) – In what appears to be a first-of-its-kind ruling in Louisville, a judge determined that a convicted felon can’t be prosecuted on a firearms charge because it violates his Second Amendment rights.

Jefferson Circuit Court Judge Melissa Logan Bellows ruled Wednesday that it is unconstitutional for prosecutors to move forward with their case against Jecory Lamont Frazier under a state law prohibiting felons from owning a gun because it doesn’t outweigh the Second Amendment right that belongs to “all Americans.”

The Jefferson Commonwealth’s Attorney’s office had argued before Bellows that the U.S. justice system has consistently disarmed people “who it deems to be unvirtuous, such as felons” and that the Kentucky Supreme Court has supported this argument.

But Bellows, who was elected in 2022, cited a 2008 U.S. Supreme Court ruling that there is a “strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”

“Therefore, the Court is reluctant to accept that the limits on the right protected by the Second Amendment are defined by a person’s virtue or good character,” Bellows ruled.

In a statement on Friday, the Commonwealth’s Attorney’s office said the ruling “deviates from well-established precedent, norm, and case law. We disagree with the ruling, and we are initiating steps to appeal it. Judges can make their own interpretations regarding the law, but they are subject to appellate scrutiny, which provides checks and balances on the judicial system.”

Bellows also ruled the prosecutors did not present evidence of a historical tradition of disarming felons after the Second Amendment was ratified in 1791.

Prosecutors, she said, failed to prove that state law “is consistent with this Nation’s historical tradition of firearm regulation.”

Frazier was arrested on November 6, 2021, after Louisville Metro Police were called to the 3900 block of Taylor Blvd., after a driver hit a pole.

Police claim Frazier attempted to hide something in his vehicle when police arrived and then pulled out a handgun and handed it to a co-defendant “to conceal from officers that he is a felon in possession of a handgun,” according to the arrest citation.

His previous convictions include drug trafficking, fraud, tampering which physical evidence and being a felon in possession of a handgun.

In October, his attorney, Rob Eggert, asked to dismiss the gun charge and cited a 2019 case in front of Judge Amy Coney Barrett, who is now a Supreme Court Justice, where she ruled that “founding-era legislators did not strip felons of the right to bear arms simply because of their status as felons.”

Eggert wrote that other appeals courts across the nation, including in Mississippi, are ruling that laws prohibiting felons from owning firearms are unconstitutional.

And he pointed out that in 2006, Kentucky Supreme Court Justice Will T. Scott wrote in a dissenting opinion that, historically, Kentucky did not prohibit anyone from owning a firearm, including convicted felons.

Assistant Commonwealth’s Attorney Jackson Rice argued in a motion in the case that the U.S. high court rulings cited by Eggert and Bellows did not state that felons should be allowed to own guns.

“While the defendant’s conduct – possessing a firearm – might be covered by the plain text of the Second Amendment, the historical tradition of firearm regulation plainly supports a ban on convicted felons being in possession of a firearm,” he wrote in a motion.

As far as the historical argument, Rice wrote that in colonial times, convicted felons could not own “property or chattels and, thereby, implicitly, could not possess a firearm.”

The statement from the Commonwealth’s Attorney’s office noted the the Kentucky Supreme Court has ruled that felon in possession of a firearm prohibitions did not violate the state constitution.

Brian Butler, who used to be a prosecutor and is now a defense attorney, said he believes the ruling “is an earth shattering opinion” that will prompt similar motions in other gun cases until the state Supreme Court rules on the issue.

Attorney General Coleman and Jefferson Commonwealth’s Attorney File Appeal to Continue Prosecuting Convicted Felon for Gun Possession

FRANKFORT, Ky. (March 22, 2024)— Attorney General Russell Coleman and Jefferson County Commonwealth’s Attorney Gerina D. Whethers announced today they are appealing a recent Jefferson Circuit Court ruling, which would allow a convicted drug trafficker to possess a firearm.

Last week, the Circuit Court ruled that a state law barring felons from possessing firearms was unconstitutional and that prosecutors could not move forward on a charge against Jecory Lamont Frazier, a convicted drug-trafficking felon. The Attorney General’s appeal will be heard by the Kentucky Court of Appeals.

“Violent crime and deadly drugs are Louisville’s most urgent challenges. The Attorney General’s Office is committed to protecting families in this community in collaboration with Commonwealth’s Attorney Whethers, LMPD and other law enforcement partners,” said Attorney General Coleman. “We are appealing this order because it defies good common sense and would give even the most violent felon a broad right to possess deadly weapons. The most ardent supporters of the Second Amendment—me included—recognize the constitutionality of laws prohibiting the possession of firearms by felons like the defendant here.”

Frazier has a prior felon-in-possession conviction, a felony drug-trafficking conviction and multiple convictions for fraudulent use of a credit card.

The landmark U.S. Supreme Court decision upholding the individual right to keep and bear arms, District of Columbia v. Heller, which was written by Justice Scalia, specifically noted “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”

“I come from a military family, and that, combined with my respect for the rule of law, is why I too am a continued supporter of the Second Amendment for law-abiding citizens,” said Commonwealth’s Attorney Gerina D. Whethers. “However, making it easier for those who have been previously convicted of felonies to access firearms puts the safety of our community at risk. Any order that runs contrary to our state laws already deemed constitutional under the Kentucky Constitution is a cause for concern.” 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

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federal Judge Tosses Gun Possession Case Against Convicted Felon – United States v. Bullock

The Truth News — Wed, 19 Jun 2024 08:14:46 +0000

Federal Judge Tosses Gun Possession Case Against Convicted Felon

United States v. Bullock

Being convicted of a felony–even a violent one–is not enough to deprive someone of their Second Amendment rights for life, a federal judge has ruled.

U.S. District Judge Carlton Reeves, an Obama appointee, dismissed a felon-in-possession of a firearm prosecution against Jesse Bullock, a Mississippi man, on Wednesday. Judge Reeves ruled that the federal government failed to meet its burden of showing that the historical tradition of firearms regulation supported permanently disarming Bullock for his past crimes, as required under the Supreme Court’s latest precedent.

“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,” Judge Reeves wrote in United States v. Bullock. “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.”

The ruling marks the first U.S. District Court to strike down the federal prohibition on convicted felons possessing firearms—18 U.S.C. § 922(g)(1). Though its opinion only extends to the defendant Bullock, it will undoubtedly add fuel to the growing legal fire over who can be prohibited from purchasing or possessing firearms following the Supreme Court’s decision in 2022’s New York State Rifle and Pistol Association v Bruen. It could also help motivate the Supreme Court to step in and further expound on where the limits of Second Amendment protections lie.

To date, federal courts have been split over whether the Second Amendment protects non-violent felons, unlawful drug users, persons under felony indictment, and those subject to a domestic violence restraining order.

Judge Reeves made headlines in November of last year when he was first assigned to hear Bullock’s case and consider whether or not he could be disarmed. He publicly chastised the Supreme Court for its legal test outlined in the Bruen decision and its emphasis on history in reaching outcomes.

“This Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians,” he wrote in an opinion ordering the Department of Justice to brief him on whether he needed to appoint a historian to decide the case. “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.”

He was no less forceful in his criticism of the High Court and its Bruen decision in his 77-page dismissal opinion on Wednesday.

“In Second Amendment cases, though, the pyramid is turned on its head,” Reeves wrote. “The trial record can be nonexistent. None of the history is ‘tested in an adversarial proceeding,’ and there may be no factual findings that ordinarily would receive some form of deference. The appellate courts do the best with the briefs they have, but all that matters is the Supreme Court’s historical review, conducted de novo as a legal rather than a factual question, with dozens of amicus briefs never before seen by another court. Is this the best way of doing justice?”

Nevertheless, under the test spelled out by the Bruen decision, Reeves found that the government failed to demonstrate a historical tradition of permanently disarming felons. Instead, he noted that the government simply pointed to Supreme Court dicta or the “more than 120 U.S. District Court decisions” that have upheld the felon-in-possession ban since Bruen to show that it is presumptively constitutional, which he said was insufficient.

“The government’s citation to the mere volume of cases is not enough,” Reeves wrote. “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.”

The case centered around Jessie Bullock, who, in 1992, was convicted of aggravated assault and manslaughter for a “deadly bar fight.” He served 15 years in prison. He also was convicted of fleeing law enforcement and attempted aggravated assault of a law enforcement officer in 2015 and received a five-year suspended sentence. In 2018, he was indicted for knowingly possessing a firearm as a convicted felon, but he was not arrested until 2020. After a series of pandemic-related delays, Bullock was finally set to go to trial over the gun charge in August 2022 before he filed a motion to have his charge dismissed in light of Bruen.

Judge Reeves conducted his own review of the reasoning and laws cited in dozens of other post-Bruen cases challenging prohibited person restrictions but found there was no clear analog for the punishment Bullock received. And he said the government, who had the burden to prove the law was consistent with American tradition, didn’t provide enough evidence to change his analysis.

“[T]he plain text of the Second Amendment covers Mr. Bullock’s conduct—possession of ordinary firearms in the home—and therefore presumptively protects him,” Reeves wrote.

While much of the opinion was spent criticizing the Supreme Court’s view of the Second Amendment and its new test for applying it, Judge Reeves ultimately said the high standard might be justified.

“Maybe the Supreme Court is correct that in this country, to ‘secure the Blessings of Liberty to ourselves and our Posterity,’ the government should have the burden of justifying itself when it deprives people of their constitutional rights,” he wrote. “Perhaps the Court is also correct that constitutional rights should be defined expansively.”

However, he also said the Court has not consistently protected other constitutionally-guaranteed rights to the same degree. He argued that the right to a speedy trial, the right to a writ of habeas corpus, and the right to vote have all been whittled down while gun rights have been restored.

“In breathing new life into the Second Amendment, though, the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights,” Reeves wrote. “Americans are waiting for Heller and Bruen’s reasoning to reach the rest of the Constitution.”

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. Bullock and an update on Bruen litigation

The historical analysis prong of Bruen has left courts to interpret a broad range of firearms statutes to determine whether they comport with the Second Amendment. To date, most courts have been reluctant to strike these statutes under the new test, but the few that have provide a framework upon which to base challenges to 18 U.S.C. § 922 provisions.

United States v. Bullock, a recent decision out of the Southern District of Mississippi, extensively examined the state of Second Amendment law post-Bruen before finding § 922(g)(1)’s prohibition on felons possessing firearms to be unconstitutional. In Bullock, Judge Carlton Reeves—who is also Chair of the United States Sentencing Commission—criticized the generic Bruen analysis that is typically employed by other courts. The government submitted as historical evidence over 120 post-Bruen district court decisions that upheld the constitutionality of § 922(g)(1). The court, upon examining a representative sample of these decisions, discussed both procedural and substantive approaches it found problematic.

Procedurally, the Bullock decision highlighted the lack of expert involvement in the historical analysis of firearms statutes, resulting in judges taking on the role of amateur historian. Amicus briefs and expert testimony, the court said, would be helpful to ensure the judges are coming to historically accurate decisions. It’s important to note that under Bruen, the government bears the burden to show a historical tradition of a certain firearms restriction—thus, at least under this court’s reasoning, the lack of expert testimony or input would weigh against the government.

Substantively, the court questioned the consistent reliance on dicta from the Heller and Bruen decisions to rule on specific firearms statutes. For instance, many courts have utilized the majority and concurrence’s notes that neither decision was meant to cast doubt on felon-in-possession laws as meaning those laws are presumptively constitutional. The Bullock court disagreed. Specific to the historical analysis of felon-in-possession laws, Judge Reeves questioned the weight of unadopted proposed amendments to the Constitution, citations to death penalty laws for felonies, and the credibility of commonly cited law review articles.

Because of the state of the law at this point, challenges to § 922 provisions and other firearms statutes are nearly a necessity for those facing these charges. At the very least, the government must then show that a historical tradition exists for the type of regulation at issue, which the defendant will then have a chance to rebut. As the Bullock court said, the evidence cited to by courts in upholding these statutes is often dubious and contains many logical flaws. These challenges require a fact-intensive inquiry by the court that goes further than simply citing to other courts’ decisions–Bruen requires an individualized historical analysis.

Notably, the Supreme Court recently granted certiorari in Rahimi—a case out of the Fifth Circuit which struck § 922(g)(8) under Bruen. How the Court rules may provide greater insight into the proper analysis in determining the constitutionality of these statutes.

06-28-2023

UNITED STATES OF AMERICA, Plaintiff, v. JESSIE BULLOCK, Defendant.

Carlton W. Reeves, United States District Judge

ORDER DISMISSING CASE

Carlton W. Reeves, United States District Judge

Gun-rights advocates used to say that the Second Amendment was treated as a “second-class” right. Robert J. Cottrol, Structure, Participation, Citizenship, and Right: Lessons from Akhil Amar’s Second and Fourteenth Amendments, 87 Geo. L.J. 2307, 2324 (1999). That all changed in 2008. That year, the Supreme Court decided that the Second Amendment guarantees individuals the right to keep and bear arms in their home for self-defense. District of Columbia v. Heller, 554 U.S. 570 (2008).

In so doing, the Court forged a broad definition of the right to bear arms. And in the years since, the Court has continued to expand that definition. See McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010). Firearm restrictions are now presumptively unlawful unless the government can “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2126 (2022).

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 bur-den-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.

In Heller, Justice Scalia’s opinion for the Court conducted a de novo review of history using the parties’ briefs and amicus briefs from academics. That was surprising in light of Justice Scalia’s long-held belief that “[s]ign-on, multiple-professor amicus briefs in a case . . . are . . . a political rather than an academic exercise” motivated by ”partisanship” and “hopes for preferment.” Memorandum from Associate Justice Antonin Scalia to Associate Justice John Paul Stevens, No. 95-1853, Clinton v. Jones, at 2 (April 4, 1997). It was further surprising given Justice Scalia’s disapproval of the Court “picking and choosing those [studies] that support its position” while “never explain[ing] why those particular studies are methodologically sound.” Roper v. Simmons, 543 U.S. 551, 617 (2005) (Scalia, J., dissenting).

Justice Scalia knew firsthand the risk of cherry-picking briefs to support one’s ideological priors. See id. Yet it appears that the Court continues to engage in “law office history”-that is, history selected to “fit the needs of people looking for ammunition in their causes”-in Constitutional interpretation. Gordon S. Wood, The Supreme Court and the Uses of History, 39 Ohio N.U. L. Rev. 435, 446 (2013).

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.

Chief Justice Roberts views law review articles with a jaundiced eye. They are not “particularly helpful for practitioners and judges,” he says. Brent E. Newton, Law Review Scholarship in the Eyes of the Twenty-First- Century Supreme Court Justices: An Empirical Analysis, 4 Drexel L. Rev. 399, 399 (2012). While this Court does not subscribe to that view, other justices have also been critical of modern law review scholarship. Id. at 399 n.1.

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

I. Factual and Procedural History

A. Mr. Bullock

In 1992, thirty-one year old Jessie Bullock got into a deadly “bar fight” in Jackson, Mississippi. Docket No. 38 at 44 (quoting U.S. Magistrate Judge F. Keith Ball). He was convicted of aggravated assault and manslaughter. Docket No. 20 at 8. As a result of those felonies, Mr. Bullock served “about 15, 16 years” in state prison and lost several civil rights. Docket No. 38 at 33 (quoting Ella Bullock).

In 2015, Mr. Bullock was convicted of fleeing law enforcement and attempted aggravated assault of a law enforcement officer. Docket No. 20 at 4. He was sentenced to five years’ incarceration, with all of that time suspended.

Mr. Bullock also permanently lost his right to possess firearms and ammunition. At the time, the Second Amendment provided him no safe harbor, no protection. See United States v. Darrington, 351 F.3d 632, 633-34 (5th Cir. 2003). If Mr. Bullock was ever found with firearms or ammunition, he could be charged with a new crime and, if convicted, sent back to prison. See 18 U.S.C. § 922(g)(1).

That is the case before this Court. The government alleges that Mr. Bullock violated § 922(g)(1) by knowingly possessing a firearm on May 3, 2018, when he was about 57 years old.

The grand jury returned its first indictment in August 2018. It charged Mr. Bullock with knowingly possessing a firearm, demanded forfeiture of his firearms and ammunition, and sought a mandatory minimum of 15 years’ incarceration.

The government did not arrest Mr. Bullock at that time. It is not clear that Mr. Bullock even knew about the pending charge. Fourteen months passed with no activity.

In October 2019, the grand jury returned a superseding indictment. This charging document amended the sentencing request to no more than 10 years in federal prison. More time passed.

Each indictment alleged that Mr. Bullock also goes by “Booman.” Testimony at the detention hearing revealed that Booman Bullock is Mr. Bullock’s son. Docket No. 38 at 29.

Mr. Bullock was finally arraigned in March 2020, around the start of the pandemic. The Magistrate Judge held a detention hearing the next month. After listening to the testimony, Judge Ball thought it “downright silly” to claim that Mr. Bullock “poses a danger to his wife, contrary to her own sworn testimony, contrary to the time that he’s been out on bond from this very incident, and no one feeling that he poses such a danger that they needed to go pick him up as early as August of 2018 when he was first indicted.” Docket No. 38 at 4546. Judge Ball released Mr. Bullock on an unsecured bond. Mr. Bullock has remained on bond ever since, without incident.

A series of pandemic-related continuances followed. The continuances were unopposed, as the U.S. Attorney’s Office and the Federal Public Defender agreed that trials should proceed first for those defendants detained in jail.

With the pandemic receding in 2022, this matter was almost ready to be tried before a jury of Mr. Bullock’s peers. In August of that year, however, he filed the present motion to dismiss. The Court turns to that now.

B. The Present Motion

Mr. Bullock argues that the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen renders the federal felon-in-possession law unconstitutional as applied to him.

Bruen was about the State of New York’s handgun rules. While 43 states issued licenses to publicly carry handguns based on “objective criteria,” New York and a handful of other states also required citizens to show a “special need” for the handgun. 142 S.Ct. at 2122. When two citizens could not meet that standard, they and a gun-rights organization sued, calling it an unconstitutional infringement of the Second Amendment guarantee.

The U.S. Court of Appeals for the Second Circuit upheld New York’s “special need” requirement, finding it “‘substantially related to the achievement of an important governmental interest.’” Id. at 2125 (citation omitted).

In Bruen, however, the Supreme Court rejected that approach. An individual’s Second Amendment rights should not be weighed against the government’s interests in public safety, it said. The Court instead announced a new standard. It is reproduced here:

[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Id. at 2126 (citation omitted). This ruling abrogated Fifth Circuit precedent. See id. at 2127 n.4 (citing Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194-95 (5th Cir. 2012)).

Pursuant to Bruen, Mr. Bullock’s motion contends that the statute prohibiting him from ever again possessing firearms or ammunition, § 922(g)(1), is unconstitutional. “The prosecution cannot meet its burden of establishing that Section 922(g)(1), as applied to Mr. Bullock, is ‘consistent with the Nation’s historical tradition of firearm regulation,’” he argues. Docket No. 61 at 4. “’Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.’” Id. at 5 (quoting Kanter, 919 F.3d at 451 (Barrett, J., dissenting)).

The government disagrees. Its three-and-a-half-page brief limits Bruen to its facts, arguing that the decision “says nothing about the statute at issue in this case.” Docket No. 63 at 3. The government then summarily asserts that § 922(g)(1) “is part of the historical tradition of regulating firearms possession.” Id.

C. Appointing An Expert Historian

After reviewing the briefs and Bruen, this Court grew concerned. Judges are not historians. We were not trained as historians. We practiced law, not history. And we do not have historians on staff. Yet the standard articulated in Bruen expects us “to play historian in the name of constitutional adjudication.” Docket No. 65 at 3, available at United States v. Bullock, No. 3:18-CR-165, 2022 WL 16649175 (S.D.Miss. Oct. 27, 2022).

In this case, no historian has expressed an opinion regarding the history of felon disarmament. Neither the government nor Mr. Bullock submitted an expert report on the historical analogues to modern felon-in-possession laws, if any. No interested organization or member of the academy filed an amicus brief. All we have are appellate judges’ interpretations of the historical record. And (some of) those interpretations are credibly accused by actual historians as being a “cherry-picked” “ideological fantasy.” Id. at 5 (collecting critiques).

This problem has been with us for decades. See Antonin Scalia, Original-ism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 856-57, 861 (1989) (“[I]t is often exceedingly difficult to plumb the original understanding of an ancient text. Properly done, the task requires the consideration of an enormous mass of material-in the case of the Constitution and its Amendments, for example, to mention only one element, the records of the ratifying debates in all the states. Even beyond that, it requires an evaluation of the reliability of that material-many of the reports of the ratifying debates, for example, are thought to be quite unreliable. And further still, it requires immersing oneself in the political and intellectual atmosphere of the time- somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day. It is, in short, a task sometimes better suited to the historian than the lawyer…. Do you have any doubt that this system does not present the ideal environment for entirely accurate historical inquiry? Nor, speaking for myself at least, does it employ the ideal personnel.”) (emphasis added). As Stephen R. Munzer and James W. Nickel explained even earlier, “practitioners of the historical approach may, consciously or subconsciously, be moved to use slanted or fabricate history to justify results they favor on other grounds.” Stephen R. Munzer and James W. Nickel, Does the Constitution Mean What It Always Meant?, 77 Colum. L. Rev. 1029, 1033 (1977) (citation omitted).

Furthermore, it should be noted that there is a special danger in allowing a controversial case to turn on an historical claim if the claim is not beyond dispute. Since good historical research is not within the competence of most judges, the antecedent probability of mistakes is high. This increases the chances that professional historians will challenge and refute the Court’s reading of history, thus undermining the basis, or ostensible basis, for the decision.

Id. (citation omitted).

This Court then discovered that “an overwhelming majority of historians” reject the Supreme Court’s most fundamental Second Amendment holding-its 2008 conclusion that the Amendment protects an individual right to bear arms, rather than a collective, Militia-based right. Id. at 4 (quoting Patrick J. Charles, The “Reasonable Regulation” Right to Arms: the GunRights Second Amendment before the Standard Model, in A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment 168 (Tucker, et al., eds., 2019)). “A common theme . . . is historians’ frequent complaint that lawyers just can’t seem to get it right.” Id. at 5 (quoting Jonathan D. Martin, Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts, 78 N.Y.U. L. Rev. 1518, 1525 (2003)).

Gordon Wood, one of the most prominent historians of our era, acknowledges that we “cannot[] base our constitutional jurisprudence on the historical reality of the Founding.” Wood, 39 Ohio N.U. L. Rev. at 448.

After this review, this Court did not want to be guilty of itself cherry-picking the history. It asked the parties whether it should appoint a professional historian to serve as an independent expert in this matter. Id. at 6.

The parties answered “no.” Mr. Bullock observed that the burden to prove history and tradition is on the government, not the defendant or the Court. Docket No. 70 at 1. “Under Bruen, the government’s ipse dixit fails to carry the government’s burden as a matter of law.” Id. at 2. The government, meanwhile, claimed that “the prohibition against felons possessing firearms is so thoroughly established as to not require detailed exploration of the historical record.” Docket No. 71 at 1. The Court took the matter under advisement.

Months later, the government filed several unsolicited briefs. One pointed to more than 120 federal court decisions from across the country that had recently considered and rejected arguments like Mr. Bullock’s. The briefs implicitly urged this Court to fall in line. Upon follow-up questioning, however, the government conceded that none of these courts had appointed an expert to help them sift through the historical record, and historians had not filed an amicus brief in any of these cases.

The Court has now reviewed dozens of the cases proffered by the government. It will describe their analytical approaches later in this opinion.

II. Legal Standard

Federal Rule of Criminal Procedure 12 allows parties to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1).

Mr. Bullock brings an “as-applied” challenge to § 922(g)(1). “The distinction between as-applied and facial challenges is sometimes hazy,” United States v. Perez, 43 F.4th 437, 443 (5th Cir. 2022) (citation omitted), but “[a]s-applied challenges are the basic building blocks of constitutional adjudication,” Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000).

In an as-applied challenge, the court asks whether a law with some permissible uses “is nonetheless unconstitutional as applied to appellant’s activity,” Spence v. Washington, 418 U.S. 405, 414 (1974) (reversing Mr. Spence’s criminal conviction); see Street v. New York, 394 U.S. 576, 594 (1969) (reversing Mr. Street’s criminal conviction).

In contrast, in a facial challenge, the court asks whether a law “could never be applied in a valid manner.” Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). “Facial challenges to the constitutionality of statutes should be granted sparingly and only as a last resort.” Serafine v. Branaman, 810 F.3d 354, 365 (5th Cir. 2016) (cleaned up).

“[F]or reasons relating both to the proper functioning of courts and to their efficiency, the lawfulness of the particular application of the law should ordinarily be decided first.” Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 485 (1989). “Once a case is brought,” however, “no general categorical line bars a court from making broader pronouncements of invalidity in properly ‘as-applied’ cases.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010) (quoting Fallon, 113 Harv. L. Rev. at 1339).

III. Discussion

The Second Amendment states, in its entirety: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const. amend. II.

A. The Second Amendment Revolution

Contemporary Second Amendment law revolves around three Supreme Court decisions: Heller, McDonald, and Bruen. They were issued in 2008, 2010, and 2022, respectively. Each will be summarized below.

Along the way, this Court will explain how the Second Amendment was interpreted before Heller, and examine a relevant dissent written by Justice Amy Coney Barrett during her service on the U.S. Court of Appeals for the Seventh Circuit.

The discussion proceeds in chronological order.

1. The Standard Before 2008

For 70 years, the Second Amendment was interpreted in accordance with United States v. Miller, 307 U.S. 174 (1939). In that case, the Supreme Court determined that “Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers,” did not have a constitutional right to carry an unregistered, homemade sawed-off shotgun. Brian L. Frye, The Peculiar Story of United States v. Miller, 3 NYU J.L. & Liberty 48, 48, 79 (2008).

Miller focused on the history and meaning of the word “Militia.” “The Constitution as originally adopted granted to the Congress power ‘To provide for calling forth the Militia to execute the Laws of the Union’,” the Court said. 307 U.S. at 178 (quoting U.S. Const. art. 1, § 8). “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id.

In other words, to quote Justice McReynolds’ statement from the bench, “[w]e construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia.” Frye, 3 NYU J.L. & Liberty at 67 (citation omitted).

Courts “struggle[d] to decipher [Miller‘s] holding.” Id. at 49. “Some find Miller adopted an individual right theory of the Second Amendment, some find it adopted a collective right theory, and some find it adopted a hybrid theory, protecting the right to possess a firearm in connection with militia service.” Id. at 49 & n.4 (collecting cases). Second Amendment scholars, meanwhile, “[a]ll conclude Miller is an impenetrable mess.” Id. at 49.

Miller was nevertheless quite resilient. Fifty years on, its Militia-based rationale was described as perhaps “the most firmly established proposition in American constitutional law.” Keith A. Ehrman and Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5, 40 (1989). Chief Justice Warren E. Burger endorsed the Militia-based rationale in a 1991 oped. See Warren E. Burger, 2nd Amendment Has Been Distorted, Assoc. Press (Dec. 11, 1991). In a television interview that same year, he called efforts to broaden the scope of the Second Amendment “one of the greatest pieces of fraud-I repeat the word fraud-on the American public by special interest groups that I have ever seen in my lifetime.” MacNeil/Lehrer NewsHour, Special Interest Push Behind 2nd Amendment a ‘Fraud,’ Former Chief Justice Said in 1991, PBS NewsHour, available at https://www.youtube.com/watch?v=hKfQpGk7KKw. The U.S. Department of Justice agreed with the Militia-based rationale, urging courts to conclude “that the Second Amendment does not apply to individual citizens.” United States v. Emerson, 270 F.3d 203, 219 (5th Cir. 2001).

Emerson turned out to be a landmark Second Amendment decision. Its historical analysis paved the way for the re-examination and adoption of an individual right to bear arms in Heller. It was not without its critics, though. See Parker v. District of Columbia, 311 F.Supp.2d 103, 106-07 (D.D.C. 2004) (calling Emerson a “troubling” violation of the Fifth Circuit’s rule of orderliness), rev’d, District of Columbia v. Heller, 554 U.S. 570 (2008).

All of that was to change in short order.

2. District of Columbia v. Heller

In 2003, Shelly Parker, Dick Heller, and a handful of other District of Columbia residents sued the D.C. government over its gun restrictions. See Parker v. District of Columbia, No. 1:03-CV-213-EGS, Docket No. 1 (D.D.C. Feb. 10, 2003). They sought permission to possess firearms in their homes for self-defense. Id. at 3.

The plaintiffs argued that Miller had been mischaracterized. Docket No. 3 at 14 (ECF pagination). A true reading of the decision-and history-they maintained, showed that the Second Amendment protected their right to possess common firearms in the home for self-defense, regardless of militia service. Id. at 33-39.

The plaintiffs also noted that in late 2001, the U.S. Department of Justice had executed an about-face in its Second Amendment jurisprudence. Id. at 29 & n.9. As DOJ later explained to the Supreme Court, a November 2001 memorandum from Attorney General John Ashcroft reflected the Department’s new belief. “The Second Amendment,” he wrote,

more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.

Brief for Respondent in Opposition to Certiorari at 19 n.3, Emerson v. United States, 536 U.S. 907 (2002) (No. 01-8780). No explanation was provided for the change.

The District Court rejected the plaintiffs’ arguments, “thought-provoking and historically interesting” though they were. Parker v. District of Columbia, 311 F.Supp.2d 103, 109 (D.D.C. 2004). More persuasive were “sixty-five years of unchanged Supreme Court precedent and the deluge of circuit case law rejecting an individual right to bear arms not in conjunction with service in the Militia.” Id. at 109-10.

On appeal, the Supreme Court disagreed. Its analysis began with the plain text of the Second Amendment.

The Court first determined that the phrase “well regulated Militia” was part of the “prefatory clause” that did not limit the words that followed. Heller, 554 U.S. at 577-78. It then found that the term “right of the people” creates “a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” Id. at 581. Lastly, the Court held that “keep and bear arms” means the ability “to possess and carry weapons in case of confrontation.” Id. at 592. “Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” Id.

The Court sought confirmation of this conclusion in the historical record. It found it. Its review of English history revealed that the Declaration of Rights protected Protestants who wanted to keep their firearms. Id. at 593. Blackstone, “the preeminent authority on English law for the founding generation,” agreed that the right to bear arms was fundamental. Id. at 593-94 (citation omitted). And excerpts from colonial newspapers showed how New Yorkers and Bostonians in 1769 “understood the right to enable individuals to defend themselves.” Id. at 594. “No prior Supreme Court decision has ever gone to such great depth or length to mine the historical sources in its search for meaning.” Rory K. Little, Heller and Constitutional Interpretation: Originalism’s Last Gasp, 60 Hastings L.J. 1415, 1418 (2009).

The Militia-based reasoning adopted in Miller was no obstacle. The case merited no deference simply because “hundreds of judges . . . have relied on the view of the Amendment we endorsed there.” Heller, 554 U.S. at 621 (cleaned up). Nor was it appropriate to consider whether the Court’s new Second Amendment standard would lead to “a dramatic upheaval in the law.” Id. The Constitution controlled, regardless of the consequences.

“Justice Douglas, for example, famously asserted that ‘it is the Constitution which [a Justice] swore to support and defend, not the gloss which his predecessors may have put on it.’” Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921, 1925 (2017) (citation omitted).

The Heller Court did pause for a moment to consider a common question: does the Second Amendment protect only “those arms in existence in the 18th century,” such as muskets, or does it also protect one’s right to bear modern weapons? Id. at 582. The Court’s response was firm: “We do not interpret constitutional rights that way.” Id. “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. (citations omitted). As support, it pointed to a 1997 case applying the First Amendment to the Internet-a technology unknown to the Framers-and a 2001 case applying the Fourth Amendment to law enforcement’s use of an infrared radiation detector. In its own way, the Court was endorsing the oft-stated principle that “[t]he framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live.” William H. Rehnquist, The Notion of A Living Constitution, 54 Tex. L. Rev. 693, 694 (1976); see also N.L.R.B. v. Noel Canning, 573 U.S. 513, 533-34 (2014) (“The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is ‘intended to endure for ages to come,’ and must adapt itself to a future that can only be ‘seen dimly,’ if at all.”).

Finally, the Court offered a few caveats and assurances. “Like most rights, the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626.

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27. “[T]here will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us,” the Court assured us. Id. at 635.

As a result, Ms. Parker, Mr. Heller, and their fellow plaintiffs were permitted to register and maintain their handguns in their homes. Id.

3. McDonald v. City of Chicago, Illinois

Two years later, the Supreme Court issued Heller‘s sequel: McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010).

McDonald solved a simple but important legal problem. Technically, the Court’s decision in Heller applied solely against the federal government. (Recall that the District of Columbia is a federal territory.) Residents of the 50 states still did not have full Second Amendment rights. So after Heller, Chicago resident Otis McDonald, several other Chicagoans, and two advocacy groups filed suit seeking the same guarantee as D.C. residents: the right “to keep handguns in their homes for selfdefense.” Id. at 750 and 752.

Although the plaintiffs lost in the District Court and the Seventh Circuit, the Supreme Court found in their favor. “[T]he Second Amendment right is fully applicable to the States” through the Fourteenth Amendment, it held. Id. at 750. “Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States.” Id. at 784-85.

The Court’s commitment to stare decisis has been called into question of late. See, e.g., David Litt, A Court Without Precedent, The Atlantic (July 24, 2022).

As in Heller, the McDonald Court engaged at length with the history of restricting gun possession. See id. at 771-79. Because the critical Amendment this time was the Fourteenth Amendment, rather than the Second Amendment, much of this discussion highlighted the “extensive history of black people’s inability to access guns during the days of chattel slavery, Reconstruction, and Jim Crow-an incapacity that left black people vulnerable to violence from private actors.” Khi-ara M. Bridges, Foreword: Race in the Roberts Court, 136 Harv. L. Rev. 23, 77 (2022).

As Judge Berger observes, “[i]n 1791, the drafters of the Constitution considered the undersigned’s ancestors as legal property. They, along with free Blacks, were prohibited from possessing firearms. The popular conception of the Second Amendment at the time it was enacted clearly did not encompass all people having access to firearms to defend themselves and fight for freedom from tyranny.” United States v. Nutter, 624 F.Supp.3d 636, 645 n.10 (S.D. W.Va. 2022); see also Dred Scott v. Sandford, 60 U.S. 393, 417 (1857) (rejecting interpretation of Constitution that would permit “persons of the negro race . . . to keep and carry arms wherever they went.”).

Relying on legislative history, the Court recounted how racist violence and disarmament was particularly acute in Mississippi. Said one U.S. Senator of that era, “[i]n Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country.” McDonald, 561 U.S. at 772 (quotation marks and citation omitted).

Justice Thomas’ concurrence also focused on Mississippi. He reminded readers of “Klan tactics” and thousands of lynchings across the South, including Emmitt Till’s 1955 murder near Money, Mississippi, and the 1904 mutilation and lynching of a “Negro and Wife” near Vicksburg, Mississippi. Id. at 857 (Thomas, J., concurring). “The use of firearms for self- defense was often the only way black citizens could protect themselves from mob violence,” he concluded. Id.

The Court majority wrapped up by reiterating some of its earlier rhetoric:

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here.

Id. at 786 (citation omitted). But the holding was clear: Mr. McDonald and his neighbors could keep their handguns at home.

4. Judge Barrett’s Dissent in Kanter v. Barr

Here, our discussion deviates from Supreme Court cases to cover a dissent written by then-Judge Barrett of the U.S. Court of Appeals for the Seventh Circuit. Its relevance will soon become obvious.

In 2011, Wisconsin resident Rickey Kanter pleaded guilty to federal mail fraud, a felony. Kanter v. Barr, 919 F.3d 437, 440 (7th Cir. 2019). He had defrauded Medicare. Id. He paid a $50,000 criminal penalty, “reimbursed Medicare over $27 million in a related civil settlement,” and served a year in federal prison. Id.

Mr. Kanter’s conviction, like Mr. Bullock’s, meant he was unable to ever again possess firearms or ammunition. Both the federal government and the State of Wisconsin had felon-inpossession laws that threatened to return Mr. Kanter to prison if he ever knowingly possessed those things. See 18 U.S.C. § 922(g)(1); Wis.Stat. § 941.29(1m).

Mr. Kanter believed that the Second Amendment invalidated those statutes. He filed suit in federal court seeking a declaration that they were unconstitutional as applied to him, “a nonviolent offender with no other criminal record.” Kanter, 919 F.3d at 440.

The District Court disagreed. It found that “even assuming felons are entitled to Second Amendment protection, the application of the federal and Wisconsin felon dispossession laws to Kanter is substantially related to the government’s important interest in preventing gun violence.” Id.

This was a curious conclusion. Both Heller and McDonald expressly instructed lower courts not to engage in this kind of “interest-balancing.” See Heller, 554 U.S. at 634; McDonald, 561 U.S. at 791. Both decisions even used the same sentence of reasoning: “The very enumeration of the right takes out of the hands of government-even the Third Branch of Govern-ment-the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U.S. at 634; McDonald, 561 U.S. at 791 (citation omitted). So it is not clear why “the government’s important interest in preventing gun violence” was relevant. Kanter, 919 F.3d at 440.

The Seventh Circuit nevertheless affirmed. The federal government had articulated an interest in “preventing gun violence by keeping firearms away from persons, such as those convicted of serious crimes, who might be expected to misuse them,” and then demonstrated “that prohibiting even nonviolent felons like Kanter from possessing firearms is substantially related to its interest in preventing gun violence.” Id. at 448. That was enough. Mr. Kanter would remain subject to both the federal and state felon disarmament statutes.

Judge Barrett issued a lengthy dissent. She thought the majority had proceeded down the wrong path by emphasizing Mr. Kanter’s felony. The correct vector was whether he was “ dangerous.” Id. at 451 (Barrett, J., dissenting). “In 1791-and for well more than a century afterward-legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety,” she reasoned. Id. “Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.” Id.

Judge Barrett began with Heller. She observed that Heller defined “the people” protected by the Second Amendment as “all Americans.” Id. at 453 (citation omitted). “Neither felons nor the mentally ill are categorically excluded from our national community.” Id. As a result, persons like Mr. Kanter were presumptively protected by the Second Amendment. Id.

The Judge then asked whether Heller foreclosed an in-depth examination of felon disarmament laws. It did not. “Like the majority, I am reluctant to place more weight on these passing references than the Court itself did. The constitutionality of felon dispossession was not before the Court in Heller, and because it explicitly deferred analysis of this issue, the scope of its assertion is unclear.” Id. (cleaned up). In short, “Heller‘s dictum does not settle the question before us.” Id. at 454.

Next came an exhaustive historical analysis. After examining several state ratifying conventions, Judge Barrett found no “founding-era laws explicitly imposing [] or explicitly authorizing the legislature to impose” permanent felon disarmament laws. Id. at 454. Each ratifying convention lent some support to a tangential proposition; New Hampshire’s proposal, for example, “reflects support for disarming rebels.” Id. at 455. But that proposal didn’t “say anything about disarming those who have committed other crimes,” and, to be clear, the proposal never made it into the final authoritative text. Id. Similar conclusions followed for the Massachusetts and Pennsylvania conventions. “The concern common to all three is not about felons in particular or even criminals in general; it is about threatened violence and the risk of public injury.” Id. at 456.

Judge Barrett then turned to English common law and colonial American history. In those periods, persons in power feared Catholics, Native Americans, and African-Americans, and disarmed those groups. Id. at 456-57. “It should go without saying that such race-based exclusions would be unconstitutional today,” she added. Id. at 458 n.7. But those restrictions provided no support for the categorical disarmament of persons with felony convictions.

“It cannot be that historical error in the form of impermissible bias, even if once acceptable among those with political and economic power, could provide the government a continuing license to unfairly discriminate against a group of people, whether it be in restricting Second Amendment rights or any others.” United States v. Guthery, No. 2:22-CR-173-KJM, 2023 WL 2696824, at *8 (E.D. Cal. Mar. 29, 2023).

Judge Barrett next considered whether felon disarmament laws are constitutional because founding-era felonies were punishable by death. Id. at 458-59. (Other judges have latched onto this rationale, which we will return to later.) She found this too simplistic. By the time of ratification, the death penalty “no longer inevitably followed a felony conviction,” while “civil death applied exclusively to life sentences and only if authorized by statute-and even then, it was more modest than the ancient version because the convict retained some rights.” Id. at 459 and 461.

The historic practice of “civil death” “extinguished most civil rights of a person convicted of a crime and largely put that person outside the law’s protection. Civil death as an [American] institution faded away in the middle of the twentieth century,” but has arguably “reemerged” via a panoply of modern “collateral consequences.” Chin, 160 U. Pa. L. Rev. at 1790. In addition to disarmament,

A person convicted of a crime, whether misdemeanor or felony, may be subject to disenfranchisement (or deportation if a noncitizen), criminal registration and community notification requirements, and the ineligibility to live, work, or be present in a particular location. Some are not allowed to live outside of civil confinement at all. In addition, the person may be subject to occupational debarment or ineligibility to establish or maintain family relations.

Id. (citations omitted). “The magnitude of the problem is greater than ever”; “tens of millions” of Americans live in free society but have criminal records. Id. at 1791 (citations omitted).

Continuing, Judge Barrett tackled the so-called “virtuous citizenry” theory. This theory provides that gun rights extend only to the virtuous, and because persons with felony convictions are not virtuous, they can be disarmed. The Judge found historical evidence that “felons could be disqualified from exercising certain rights-like the rights to vote and serve on ju-ries-because these rights belonged only to virtuous citizens.” Id. at 462 (citations omitted). The problem, though, is that virtue exclusions applied only to “civic rights-indi-vidual rights that require citizens to act in a collective manner for distinctly public purposes.” Id. (cleaned up). And Heller made clear that the Second Amendment’s right to bear arms is an individual right, not a civic right. Id. at 463.

Judge Barrett concluded by asking whether some firearms bans could be justified. In her view, the federal government and Wisconsin “might still be able to show that Kanter’s history or characteristics make him likely to misuse firearms,” thereby posing a risk to public safety that warranted disarmament. Id. at 468. But neither government had put forward any such evidence. Id. Accordingly, “the governments cannot permanently deprive him of his right to keep and bear arms.” Id. at 469.

5. New York State Rifle & Pistol Association v. Bruen

We arrive at Bruen. The decision was summarized earlier, but the three major takeaways of the majority opinion are presented here. A shorter description of the concurrences and dissent follows.

First, in its opening paragraph, the Court built upon Heller and McDonald by formally holding “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” 142 S.Ct. at 2122 (emphasis added). The opinion later explained that “[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.” Id. at 2134. “To confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections.” Id. at 2134-35.

Second, the Court modified the legal standard governing Second Amendment cases. It rejected the appellate courts’ existing “’two-step’ framework . . . that combines history with means-end scrutiny,” Id. at 2125, and replaced it with a different two-step analysis:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’

Id. at 2129-30 (citation omitted).

The Court explained to judges and lawyers how to use “history to inform the meaning of constitutional text.” Id. at 2130. “That ‘legal inquiry is a refined subset’ of a broader ‘historical inquiry,’ and it relies on ‘various evidentiary principles and default rules’ to resolve uncertainties.” Id. at 2130 n.6 (quoting William Baude and Stephen E. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 810-11 (2019)). The Court then added that judges should “follow the principle of party presentation” and are “entitled to decide a case based on the historical record compiled by the parties.” Id.

The authors of the quoted piece, though, state emphatically at the outset of their article that “lawyers must often defer to historical expertise on the relevant questions.” Baude and Sachs, 37 L. & Hist. Rev. at 3 (PDF pagination).

At times, the historical inquiry would be “fairly straightforward.” Id. at 2131. “For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” Id.

Some scholars doubt that the absence of a similar historical regulation should weigh against constitutionality. See, e.g., Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. (draft of March 20, 2023) (forthcoming).

At other times, though, it acknowledged that “cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.” Id. at 2132.

The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution-and a Second Amendment-“intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.

Id. (citation omitted).

The Court then tried to provide lawyers and judges specific instructions. “[D]etermining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are ‘relevantly similar,’” it said. Id. While “relevantly similar” was left undefined, the Court said precedent pointed toward “at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id. (emphasis added). “[A]nalogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modernday regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id.

Third, the Court applied this new legal standard to New York’s public-carry licensing regime.

At step one, it found that “the plain text of the Second Amendment protects [petitioners’] proposed course of conduct-carrying handguns publicly for self-defense.” Id. at 2134.

At step two, the Court found that the State of New York had not met its burden “to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 2135. Although the government had amassed “a variety of historical sources” spanning “(1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) antebellum America; (4) Reconstruction; and (5) the late-19th and early-20th centuries,” these sources all failed to persuade. Id. at 2135-36. “[A]part from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.” Id. at 2138. New York’s proper-cause requirement was unconstitutional.

Bruen‘s concurrences and dissent merit attention. As we will see, the concurrences and dissent are the primary reason why more than 120 constitutional challenges like Mr. Bullock’s have failed across the country.

Justice Alito’s concurrence emphasized that Bruen protects only the rights of “law-abiding residents.” Id. at 2157 (Alito, J., concurring). “That is all we decide. Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun…. Nor have we disturbed anything that we said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns.” Id.

Justice Kavanaugh’s concurrence, which was joined by the Chief Justice, took a similar tack. Quoting Heller and McDonald, he emphasized that “[n]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 2162 (Kavanaugh, J., concurring).

Justice Breyer’s dissent, joined by Justices Sotomayor and Kagan, hit the same theme. He observed that in Heller, the Court declared felon-in-possession statutes to be “presumptively lawful.” Id. at 2189 (Breyer, J., dissenting) (quoting Heller, 554 U.S. at 626-27 & n.26). He then agreed with Justice Kavanaugh that Bruen “cast[s] no doubt on that aspect of Heller‘s holding.” Id. (citation omitted).

U.S. District Judges across the country have latched onto the concurrences and dissent to conclude that at least five current Supreme Court Justices presently support felon-in-possession statutes. We turn now to those district court opinions.

B. The Post- Bruen Consensus

This Court has now reviewed dozens of the government’s proffered post-Bruen cases. All have found § 922(g)(1) constitutional.

The most common mode of reasoning goes like this:

• Heller protected only the Second Amendment rights of “law-abiding, responsible” citizens.

• Heller said that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”

• McDonald said the same thing.

• Bruen didn’t overrule either case.

• Because the defendant is a felon, under Heller, McDonald, and Bruen, their motion to dismiss fails.

See, e.g., United States v. Tribble, No. 2:22-CR-85-PPS-JEM, 2023 WL 2455978, at *2 (N.D. Ind. Mar. 10, 2023). The Tribble court summarized its reasoning as follows:

As tempting as it is to pore over colonial era gun laws and muse on whether they are an adequate proxy to § 922(g)(1), . . . the Supreme Court has stated that restrictions on felons possessing firearms are permissible. Nothing in Bruen indicates the Court intended to change its view on the matter.

Id. (citations omitted). The Tribble court then cited the concurrences of Justices Alito and Kavanaugh for the proposition that Bruen changed the legal standard without casting doubt on felon disarmament. Id. (citations omitted).

Some district courts have gone beyond this method to examine the constitutionality of § 922(g)(1) under the Bruen standard.

Those who reach Bruen step one have reasoned, for example, that “the activity regulated by the felon in possession statute falls outside the scope of the Second Amendment’s protections because it does not impact ‘law-abiding, responsible citizens.’” United States v. Belin, No. 21-CR-10040-RWZ, 2023 WL 2354900, at *2 (D. Mass. Mar. 2, 2023) (quoting Bruen, 142 S.Ct. at 2122).

The courts that reach Bruen step two, meanwhile, have credited the United States’ arguments to conclude that “felon-inpossession prohibitions have sufficient grounding in historical tradition to withstand a challenge.” United States v. Smith, No. 22-CR-20351, 2023 WL 2215779, at *3 (E.D. Mich. Feb. 24, 2023). In Smith, as just one example, the court cited the Fifth Circuit’s discussion in Emerson for the proposition that “colonial and English societies of the eighteenth century have excluded felons from possessing firearms.” Id. (cleaned up). A subset of these decisions has also reasoned that because the government could historically disarm persons it deemed “dangerous”-crediting Justice Barrett’s dissent in Kanter– that the government could also disarm all persons with felony convictions. Id. at *4.

C. Concerns With the Post-BruenConsensus

With great respect, this Court is not convinced that these analyses are correct. The concerns are both procedural and substantive.

1. The Process Concerns

The Department of Justice admits that in none of its proffered cases did a district court decide the issue with assistance of a professional historian. That is puzzling because such assistance could have come in several forms.

a. No Expert Reports

The most disappointing failure is that the party with the burden to prove history and tradition-the United States-did not designate a historian to testify on the analogues, if any, to modern felon-in-possession laws.

In footnote six, Bruen explained that judges should “follow the principle of party presentation” and are “entitled to decide a case based on the historical record compiled by the parties.” 142 S.Ct. at 2130 n.6. Judges “are not obliged to sift the historical materials for evidence to sustain New York’s statute,” it reasoned. Id. at 2150. “That is [the government’s] burden.” Id.

In this case, as in the sampled cases, however, the government did not designate a single person to provide an expert report on § 922(g)(1). It is true that a retained expert would have come at some cost. But the Rules also permit parties to designate their own employee as an expert witness. See Fed.R.Civ.P. 26(a)(2)(B). The government elected to do neither of those things.

Although compared to the doctors hired in medical malpractice cases, the engineers hired in product liability cases, the political scientists and statisticians hired in voting rights litigation, and the economists hired in cases of all stripes, the historians who sent their CVs to this Court, unprompted, appear to charge affordable rates. And if fundamental constitutional rights are at stake, isn’t some degree of cost worth it?

In some circumstances, the Department of Justice can and does employ real historians. In May 2023, as this opinion was being drafted, the Criminal Division’s Human Rights and Special Prosecutions Section at Main Justice was hiring a historian at the GS-14 level. The successful applicant will be expected to “[p]erform historical research and investigative activities to identify persons in the United States who may have perpetrated human rights violations in Eastern Europe, including persecution, torture, genocide, extrajudicial killings, and the use or recruitment of child soldiers.” USA jobs Posting (on file with author). The Department could do the same for its Second Amendment cases if it wanted to.

Bruen‘s sixth footnote brushed aside questions about the role of experts. It said “[t]he job of judges . . . is to resolve legal questions presented in particular cases or controversies.” 142 S.Ct. at 2130 n.6. It then quoted Professors Baude and Sachs to explain that this “’legal inquiry is a refined subset’ of a broader ‘historical inquiry,’ and it relies on ‘various evidentiary principles and default rules’ to resolve uncertainties.” Id. The quoted article, in turn, observes that judges “hear antitrust cases without producing cutting-edge microeconomic research, or decide issues of toxic-tort causation without ever donning lab coats.” PDF p.8. Professors Baude and Sachs thus imply that historical questions pose no greater lift.

With respect, however, the distinguished professors forget that in antitrust, toxic-tort, and many more cases, the parties each submit detailed expert reports supporting their positions. In this way Judges draw not upon their own subjectmatter expertise, but upon a record produced by the parties’ own presentations. And in this case, as in the sampled cases, the government never offered into the record an expert report supporting its view of felon disarmament.

At the trial-court level, moreover, a judge is more often expected to determine whether there are genuine and material disputed issues of fact for a jury to resolve, rather than asked to itself adjudicate those facts.

While this Court was initially tempted to appoint an independent historian to help complete the historical record-for reasons well-articulated by Justice Scalia more than three decades ago, see supra Bruen instructs judges to place that burden on the government. It is no wonder, then, that this Court’s colleagues all declined to hire such an expert.

b. No Amicus Briefs

The sampled district court cases, like this case, also lack amicus briefs discussing past analogues (if any) to modern felon disarmament laws.

This is understandable at the district court level. With no Rule requiring their acceptance, cf. Fed. R. App. P. 29, some district courts discourage amicus briefs. See, e.g., Evanston Ins. Co. v. Rodriguez Eng’g Lab’ys, No. 1:21-CV-1129-RP, 2023 WL 379277, at *1 (W.D. Tex. Jan. 20, 2023) (“An amicus who argues facts should rarely be welcomed. Additionally, acceptance of an . . . amicus curiae should be allowed only sparingly, unless the amicus has a special interest, or unless the Court feels that existing counsel need assistance.”) (collecting cases).

This reluctance is much less true at the appellate level, where in addition to the requirements of Rule 29, Circuit Judges from a wide range of philosophical dispositions have recognized that “’we might be able to avoid some unnecessary catastrophes if we have the will and the patience to listen.’” Lefebure v. D’Aquilla, 15 F.4th 670, 675 (5th Cir. 2021) (Ho, J., in a single-judge Order) (quoting Judge Higginbotham’s dissent in Am. Coll. of Obstetricians & Gynecologists, Pennsylvania Section v. Thornburgh, 699 F.2d 644, 647 (3d Cir. 1983)).

Despite the appellate courts’ openness to outside expertise, however, the amicus briefs do not always materialize. Fifth Circuit Judge Stephen Higginson recently lamented that despite the importance of the Second Amendment issue pending before his court, he and his colleagues had the benefit of only one amicus brief. Avalon Zoppo, Judge Frustrated Over Lack of Historical Analysis in Gun Rights Case, Nat’l L.J. (Feb. 8, 2023). “I’m not blaming you because I’m not a Ph.D. either,” he told counsel for the United States during oral argument, “but you each gave us I think four law review articles not from historians…. The Supreme Court in Bruen had 80 amici from Ph.D. historians.” Id. In such situations, what are Circuit Judges to do?

Judge Higginson’s grievance might seem strange to lawyers. Of course historians will want to provide their input into critical Second Amendment questions, we think. From the historians’ perspective, though, the question might be different. What incentive do trained historians have to participate in what is ultimately an uncompensated labor scheme?

Consider, as a start, Justice Scalia’s stated distrust of “[s]ign-on, multiple-professor amicus briefs,” quoted above. Think about how the Chief Justice famously derides academics, who (in his view) spend their time on “the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.” Debra Cassens Weiss, Law Prof Responds After Chief Justice Roberts Disses Legal Scholarship, ABA Journal (July 7, 2011). And recall that “an overwhelming majority of historians” reject the Supreme Court’s central Second Amendment holding: the individual right to bear arms. Bullock, 2022 WL 16649175, at *2 (citation omitted). If you believe that an outcome-oriented judiciary is disregarding your profession’s collective wisdom, cherry-picking the record to legislate from the bench, why would you want to enable it?

Legal academia responded with a flurry of papers. Westlaw returns 126 secondary sources containing the phrase “influence of Immanuel Kant on evidentiary approaches.” See, e.g., Orin S. Kerr, The Influence of Immanuel Kant on Evidentiary Approaches in 18th-Century Bulgaria, 18 Green Bag 2d 251, 251 (2015) (“This Article fills the gap in the literature by exploring Kant’s influence on evidentiary approaches in 18th-century Bulgaria. It concludes that Kant’s influence, in all likelihood, was none.”).

Professor Wood acknowledges that that’s exactly what is happening, asking, “how can you go back to the history except to cherry pick and select phrases or words that seem to fit your agenda?” Wood, 39 Ohio N.U. L. Rev. at 443 (emphasis added).

One hopes that we have not so abused the academic world’s trust as to discourage it from participating in the judiciary’s search for truth. We need the historical community’s guidance and expertise. And to accomplish that, we might need to rearrange the incentive scheme. Not just by paying people what they are worth, but also by ensuring that historical questions are predicated upon a solid foundation of facts, not abstract legal questions reserved only for judges.

This Court may be understating the problem. A recent paper suggests that the Justices’ use of scholarly literature is “a dangerous development” and “poses acute problems for students of legal history.” Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404, 426-27 (2023). “Scholars cannot put their trust in the Court’s historical analyses. We need rigorous academic work that stands at some distance from the Court’s own arguments on which to build our future research.” Id. at 427.

The justice system ordinarily operates like a pyramid. Thousands of disparate factual records are created in the trial courts. Thousands of those filter up to the circuit courts for error-correction and harmonization of the rule of law. And customarily, where that harmonization causes differences among the circuit courts will the Supreme Court weigh in to decide the contested issues. When it does so, the parties are given the opportunity to argue their respective positions, and amici weigh in too. The parties have one last opportunity to convince the Court at oral argument, and on some occasions the Court permits others to speak. In this way, many different facts, situations, and perspectives inform the law up the chain of abstraction.

In Second Amendment cases, though, the pyramid is turned on its head. The trial record can be nonexistent. None of the history is “tested in an adversarial proceeding,” Roper, 543 U.S. at 617 (Scalia, J., dissenting), and there may be no factual findings that ordinarily would receive some form of deference. The appellate courts do the best with the briefs they have, but all that matters is the Supreme Court’s historical review, conducted de novo as a legal rather than a factual question, with dozens of amicus briefs never before seen by another court. Is this the best way of doing justice?

In that sense, historians are simply making the most efficient decision: don’t bother to submit anything to the trial or intermediate courts-it doesn’t matter anyway.

2. The Substantive Concerns

This Court is also not persuaded that the sampled district court cases reached the correct legal conclusions.

a. Relying on Dicta

One common method of denying these motions relies upon Heller‘s repeated statements about “law-abiding, responsible citizens” and a concluding paragraph saying that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ….” 554 U.S. at 626-27.

Several commentors did not like this paragraph of “judicial lawmaking.” J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va.L.Rev. 253, 273 (2009); see Antonin Scalia, A Matter of Interpretation 21 (1997) (criticizing “judicial lawmaking”) [hereinafter A Matter of Interpretation]. “The Constitution’s text, at least, has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy,” Judge Wilkinson wrote. 95 Va.L.Rev. at 273. “The Heller majority seems to want to have its cake and eat it, too–to recognize a right to bear arms without having to deal with any of the more unpleasant consequences of such a right.” Id. Professor Little thought the paragraph “demonstrates that even the purest originalist cannot resist the tug to implement, nay, to transport, the ‘original meaning’ into the context and experience of our living age.” 60 Hastings L.J. at 1420. Professor Larson added, “[t]he Court offered no citations to support this statement, and its ad hoc, patchy quality has been readily apparent to commentators, who have speculated that it was compromise language designed to secure Justice Kennedy’s vote.” Carlton F.W. Larson, Four Exceptions in Search of A Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372 (2009).

Like Justice Barrett, the Fifth Circuit found this language to constitute dictum. United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010). Justice Thomas has agreed. Voisine v. United States, 579 U.S. 686, 715 (2016) (Thomas, J., dissenting). And quite recently, the en banc Third Circuit agreed, too. Range v. Att’y Gen. United States of Am., 69 F.4th 96, 101 (3d Cir. 2023) (en banc).

“A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.” Michael Abramowicz and Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 961 (2005).

“The constitutionality of felon dispossession was not before the Court in Heller, and because it explicitly deferred analysis of this issue, the scope of its assertion is unclear.” Kanter, 919 F.3d at 453 (Barrett, J., dissenting) (cleaned up). “Heller‘s dictum does not settle the question before us.” Id.

Several district courts suggested that Supreme Court dicta is binding upon them. E.g., United States v. Finney, No. 2:23-CR-13, 2023 WL 2696203, at *2 n.4 (E.D. Va. Mar. 29, 2023). Not so in this Circuit. “We are not bound by dicta, even of our own court,” says the Fifth Circuit. United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980) (citation omitted). Though Supreme Court dicta is, “as compared with other dicta, . . . ‘another matter,’” it is “’not infallible.’” Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013) (citations omitted). And for good reason. Federal courts have “no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.” United States v. Raines, 362 U.S. 17, 21 (1960).

Federal courts are instead bound by two rules: “one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Id.; see Yazoo & M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219 (1912) (“this court must deal with the case in hand, and not with imaginary ones.”).

Treating dicta as binding violates the “one doctrine more deeply rooted than any other in the process of constitutional adjudication”: “that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944).

Lower courts cannot apply language that is, at heart, an unconstitutional advisory opinion. See Whitehouse Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321, 343 (5th Cir. 2010) (Garza, J., concurring in part) (“Federal courts are only permitted to rule upon an actual ‘case or controversy,’ and lack jurisdiction to render merely advisory opinions beyond the rulings necessary to resolve a dispute.”); see also Ryan S. Killian, Dicta and the Rule of Law, 2013 Pepp. L. Rev. 1, 9 (2013) (“Dicta is, at bottom, a form of advisory opinion for future cases.”).

Heller instead reassured us that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” 554 U.S. at 635. After Bruen, that time has arrived.

b. Counting the Votes

Another common method of denying these motions is to tally the felon-in-possession votes implied by Bruen‘s concurrences and dissent. Recall that in these separate opinions, six Justices endorsed felon disarmament. Five of those Justices are still on the Court. As a result, some district courts have assumed that as a simple matter of realpolitik, there is no chance the Supreme Court will find § 922(g)(1) unconstitutional in a future case. E.g., United States v. Davis, No. 1:21-CR-206-ADA-BAM-1, 2023 WL 2505039, at *3 (E.D. Cal. Mar. 14, 2023).

After Bruen, Justice Breyer was replaced by Justice Jackson, so some might assume that there are six votes supporting felon disarmament- Roberts, Alito, Sotomayor, Kagan, Kavanaugh, and Jackson. That would be unwise, and not just because it is insulting to assume anyone’s vote. Justice Jackson is a former public defender. And many public defenders consider § 922(g)(1) and its state analogues to be canaries in the coal mine of our criminal justice system, disenfranchising minorities and exacerbating mass incarceration. See Emma Luttrell Shreefter, Federal Felon-in-Possession Gun Laws: Criminalizing A Status, Disparately Affecting Black Defendants, and Continuing the Nation’s Centuries-Old Methods to Disarm Black Communities, 21 CUNY L. Rev. 143, 175 (2018) (“’Felon in possession’ laws . . . are disparately enforced against Black defendants, and federal initiatives that charge offenders in the federal rather than state system target Black communities.”); David E. Patton, Criminal Justice Reform and Guns: The Irresistible Movement Meets the Immovable Object, 69 Emory L.J. 1011, 1015 (2020) (collecting critiques of federal gun possession prosecutions, “including stark racial disparity, contribution to mass incarceration, harm to principles of federalism, diminished civil liberties, and lack of effectiveness”); see also Benjamin Levin, Guns and Drugs, 84 Fordham L. Rev. 2173, 2194 (2016) (“while fewer published studies focus on the racial dynamics of criminal gun law, the evidence that we do have suggests that people of color bear the brunt of enforcement.”). In Bruen, a coalition of public defenders and Black criminal defense attorneys filed an amicus brief supporting the petitioners. They argued that “virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. That remains the effect of its enforcement by police and prosecutors today.” Brief of Black Attorneys of Legal Aid et al. as Amici Curiae in Support of Petitioners at 5. These attorneys pointed out that although the State of New York is approximately 70% white and 18% Black, white residents accounted for only 7% of felony gun possession cases. Id. at 14-15. In contrast, Black residents “accounted for 78% of the state’s felony gun possession cases.” Id. at 14. In New York City in particular, data showed that “in 2020, 96% of arrests made for gun possession under N.Y. Penal Law § 265.03(3) . . . were of Black or Latino people. This percentage has been above 90% for 13 consecutive years.” Id. at 15. National data on § 922(g) convictions bear this trend out. In FY 2021, there were 7,454 § 922(g) convictions, representing approximately 13% of all federal cases that year. U.S. Sent. Comm’n, Quick Facts – Felon in Possession of a Firearm at 1 (June 2022), available at https://www.ussc.gov/re-search/quick-facts/section-922g-firearms. Most of these cases were felonin-possession cases, and they had an average sentence of 60 months’ incarceration. Id. Of the individuals convicted of violating § 922(g), 56.2% of them were Black. Id. That same year, though, the population of the United States was 12.1% Black. U.S. Dep’t of Health and Human Servs., Office of Minority Health, Profile: Black/African Americans (last modified Feb. 24, 2023). African-Americans’ share of § 922(g) convictions is therefore over four times their representation in the national population. The result is that “nearly a quarter of Black adults have been permanently stripped of the right to lawfully possess firearms.” Zach Sherwood, Time to Reload: The Harms of the Federal Felon-in-Possession Ban in A PostHeller World, 70 Duke L.J. 1429, 1464 (2021).

It certainly is tempting for busy trial judges to try and resolve complicated issues via this kind of calculation. But this Court cannot honor an advisory opinion on an issue that was not before the Supreme Court. And it is no substitute for applying the new legal standard announced in Bruen. Believing it to be insufficient, then, this Court will refrain from counting the Justices’ votes today.

For those so inclined, it is fascinating that the Justice with arguably the most knowledge of felon disarmament-or, at least, the longest paper trail on the subject-declined to join Justice Alito and Justice Kavanaugh’s attempts to reassure us that felon-in-possession laws are constitutional.

c. BruenStep One

Some courts press on to consider § 922(g) under the Bruen standard. Recall that Bruen‘s first step asks reviewing courts to determine whether “the Second Amendment’s plain text covers an individual’s conduct.” 142 S.Ct. at 2126.

In one representative decision, the district court denied the defendant’s motion to dismiss by reasoning at step one that “the activity regulated by the felon in possession statute falls outside the scope of the Second Amendment’s protections because it does not impact ‘law-abiding, responsible citizens.’” Belin, 2023 WL 2354900, at *2 (quoting Bruen, 142 S.Ct. at 2122). In other words, a convicted felon “is not considered to be a part of ‘the people’ for purposes of the Second Amendment as the Amendment’s protections only extend to lawabiding citizens…. [T]his is known as the civic virtue theory of the Second Amendment.” United States v. Rice, No. 3:22-CR-36 JD, 2023 WL 2560836, at *6 (N.D. Ind. Mar. 17, 2023) (citations omitted).

With respect, this reasoning errs in several ways.

Bruen step one requires us to look at the “conduct” being regulated, not the status of the person performing the conduct. 142 S.Ct. at 2126. In Mr. Bullock’s case, the conduct the government seeks to punish is Mr. Bullock’s (alleged) knowing possession of a firearm in his home. It hasn’t charged him with brandishing a weapon, firing one, domestic violence, assault, or battery. And Heller already resolved that merely possessing a firearm within the home is the core of the right protected by the Second Amendment. See 554 U.S. at 629-30.

Heller also answered, for the purposes of step one, whether the Second Amendment covers the so-called “national community,” or a subset of the Nation called the “political community.” It chose the broader definition: “‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” Id. at 580 (cleaned up). “We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” Id. at 581.

As Justice Barrett observed, “[n]either felons nor the mentally ill are categorically excluded from our national community.” Kanter, 919 F.3d at 453 (Barrett, J., dissenting). And even if the Supreme Court eventually backtracks from Heller to hold that the Second Amendment protects only the “political community” rather than the larger “national community,” Justice Barrett’s dissent identified case law proximate to the adoption of the Fourteenth Amendment showing that persons with felony convictions who had completed their sentences had their civil rights restored, thereby returning them to the political community. Id. at 461.

The en banc Third Circuit, relying on this part of Heller, concluded that persons with felony convictions are part of “the people” and presumptively retain Second Amendment rights. Range, 69 F.4th at 101. As that court explained,

the phrase “law-abiding, responsible citizens” is as expansive as it is vague. Who are “lawabiding” citizens in this context? Does it exclude those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine? No…. As the Supreme Court noted recently: “a felon is not always more dangerous than a misdemeanant.” Lange v. California, __ U.S. __, 141 S.Ct. 2011, 2020 (2021) (cleaned up). As for the modifier “responsible,” it serves only to undermine the Government’s argument because it renders the category hopelessly vague. In our Republic of over 330 million people, Americans have widely divergent ideas about what is required for one to be considered a “responsible” citizen.

Id. at 102. This Court agrees.

Writing in a Second Amendment case last year, Judge David Counts made another essential point:

[Step One] is where Bruen conflicts with Heller. Heller called proscriptions against felons possessing guns “presumptively lawful.” In contrast, because possession is covered by the Second Amendment’s plain text, Bruen makes a felon’s possession of a firearm “presumptively constitutional.” Bruen is the controlling standard, but this conflict-the presumption of con-stitutionality-is what places the heavy burden on the Government.

In any event, Bruen‘s first step asks a strictly textual question with only one answer: the Second Amendment’s plain text covers possession of a firearm. Because the Constitution presumptively protects possessing a firearm, § 922(g)(1)‘s constitutionality hinges on whether regulations prohibiting felons from possessing a firearm are consistent with the Nation’s historical tradition of firearm regulation.

United States v. Charles, No. MO:22-CR-154-DC, 2022 WL 4913900, at *2 (W.D. Tex. Oct. 3, 2022) (citations omitted).

For these reasons, this Court finds that at Bruen step one, the plain text of the Second Amendment covers Mr. Bullock’s possession of firearms in his home.

The Rice court also considered, at this step, whether felon disarmament is justified by proposals discussed at three state ratifying conventions. See 2023 WL 2560836, at *7. This Judge thinks this analysis belongs at Bruen step two, since it goes beyond an interpretation of the plain text of the Second Amendment and into the history of arguably analogous provisions. Accordingly, the ratifying conventions will be considered in more detail below.

d. Bruen Step Two

This Court has similar reservations about Bruen step two: whether the government has shown that permanently disarming Mr. Bullock is supported by a historical tradition of analogous laws.

Necessarily fewer district court cases reach this step; most are satisfied with Heller‘s assurances. That said, there are a few themes among those that engage with this point.

i. The Ratifying Conventions

One theme focuses on the Massachusetts, Pennsylvania, and New Hampshire constitutional ratifying conventions. E.g., United States v. Hoeft, No. 4:21-CR-40163-KES, 2023 WL 2586030, at *4 (D.S.D. Mar. 21, 2023).

At the Massachusetts convention, Samuel Adams proposed that gun rights be limited to “peaceable citizens.” Id. (citation omitted). In Pennsylvania, Anti-Federalists proposed guaranteeing a right to bear arms “unless for crimes committed.” Id. (citation omitted). And in New Hampshire, delegates recommended an amendment that guaranteed a right to bear arms to all except those “in actual rebellion.” United States v. Coombes, No. 22-CR-189-GKF, 2022 WL 4367056, at *6 (N.D. Okla. Sept. 21, 2022) (citation omitted). These proposals, taken together, supposedly “demonstrate a continued understanding of the Second Amendment as restricted to law abiding citizens.” Hoeft, 2023 WL 2586030, at *4.

This theory runs into a few problems.

First, and most obviously, none of these proposals became law. See United States v. Rahimi, 61 F.4th 443, 457 (5th Cir. 2023). Heller reminds us that “[i]t is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process,” 554 U.S. at 590, and this is a good example of why that is true.

Maybe the Framers deleted the mention of law-abiding citizens from the Second Amendment because they wanted all persons to retain their “natural right of resistance and self- preservation.” Id. at 594 (quoting Blackstone). Or maybe the Framers deleted law-abiding citizens from the Second Amendment because it was so widely understood that only the virtuous could keep arms that they need not waste precious words to codify popular understanding. No wonder thoughtful judges and scholars continue to disagree about what the omissions mean. Compare United States v. Hicks, No. W:21-CR-60-ADA, 2023 WL 164170, at *5 (W.D. Tex. Jan. 9, 2023) (“But those proposed amendments were just that: proposed.”) and Larson, 60 Hastings L.J. at 1375 (“The best one can say is that at least some people in Pennsylvania felt criminals could be disarmed,” but this “text is not reflected in the Second Amendment as proposed and ratified.”) with Coombes, 2022 WL 4367056, at *7 (“no objection was made because the [felon] exclusions were understood.”). Originalism doesn’t tell us which of these interpretations is correct.

There’s an obvious policy justification for this. If the government automatically and permanently disarms persons with felony convictions, won’t future criminals know that the easiest, most helpless people to target for robbery, rape, and murder are the homes and families of those persons, who no longer can defend themselves? After all, “[f]elons who have served their sentences are no less susceptible to home invasions and assaults than are law-abiding people (perhaps even more susceptible).” Mark Tushnet, Heller and the Perils of Compromise, 13 Lewis & Clark L. Rev. 419, 424 (2009).

The dilemma is a familiar one. See Williams v. Florida, 399 U.S. 78, 96-97 (1970) (holding that “provisions that would have explicitly tied the ‘jury’ concept to the ‘accustomed requisites’ of the time were eliminated. Such action is concededly open to the explanation that the ‘accustomed requisites’ were thought to be already included in the concept of a ‘jury.’ But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect. Indeed, given the clear expectation that a substantive change would be effected by the inclusion or deletion of an explicit ‘vicinage’ requirement, the latter explanation is, if anything, the more plausible.”) (emphasis added).

The second problem adds to the conundrum. Bruen expressly instructs judges to “doubt that three colonial regulations could suffice to show a tradition” of gun regulation. 142 S.Ct. at 2142; see also id. at 2153 (“we will not give disproportionate weight to a single state statute and a pair of state-court decisions.”). Yet the ratifying conventions theory is based on three proposals.

The final difficulty for the ratifying conventions theory is the one Justice Barrett identified. Even if these three proposals are transmuted into actual law, and through some alchemy have their application broadened beyond three states to the entire nation, they do not justify the claimed restriction. “The concern common to all three” ratifying conventions, Justice Barrett concluded, “is not about felons in particular or even criminals in general; it is about threatened violence and the risk of public injury.” Kanter, 919 F.3d at 456 (Barrett, J., dissenting). She thought dangerousness was the proper lens, not status.

As a result, this Court is not persuaded that the ratifying conventions provide the historical support required to uphold § 922(g)(1).

ii. The Death Penalty

Other courts find historical support for felon disarmament in “laws which authorized capital punishment and estate forfeiture for persons convicted of felonies.” Rice, 2023 WL 2560836, at *8. They note that the “First Congress, which drafted and proposed the Second Amendment, made a variety of felonies punishable by death including forging or counterfeiting a public security.” Id. at 9 (citation omitted). Under this logic, “given the exceptionally heavy burden [death and estate forfeiture] place upon an individual, which inherently deprives the individual of their Second Amendment rights, disarmament under § 922(g)(1) is a comparatively lenient punishment and therefore is constitutionally permissible.” Id.

It is true, as a matter of logic, that if the state has the power to end certain persons’ lives, it necessarily has the lesser power to disarm those persons. Nevertheless, that does not prove what its proponents think it proves.

For one, we don’t know the direction of the causal chain. Does this history mean that persons with felony convictions can be disarmed because some were executed? Or does it mean that disarmament applies only to persons convicted of a death-eligible offense? Originalism doesn’t say. But answering that question might immediately restore the Second Amendment rights of millions of Americans who, like Mr. Bullock, were convicted of death-ineligible felonies and served their sentences in full to return to the free world.

The en banc Third Circuit had a different take, based on the different nature of the punishments. “That Founding-era governments punished some nonviolent crimes with death does not suggest that the particular (and distinct) punishment at issue-lifetime disarmament-is rooted in our Nation’s history and tradition,” it held. Range, 69 F.4th at 105.

The greater does not necessarily include the lesser: founding-era governments’ execution of some individuals convicted of certain offenses does not mean the State, then or now, could constitutionally strip a felon of his right to possess

arms if he was not executed. As one of our dissenting colleagues notes, a felon could “repurchase arms” after successfully completing his sentence and reintegrating into society. Krause Dissent at 28-29. That aptly describes Range’s situation. So the Government’s attempt to disarm Range is not “relevantly similar” to earlier statutes allowing for execution and forfeiture. See Bruen, 142 S.Ct. at 2132.

Id.

This case asks the same question. If America’s historical tradition permitted a felon to repurchase firearms after completing their sentence, why can’t Mr. Bullock today?

iii. The Law Reviews

Again, most of the district court cases that make up the post-Bruen consensus do not engage with Second Amendment scholarship, finding Heller‘s assurances more than sufficient to decide their motions to dismiss. Of those that do, however, several law journals articles recur. The top five most-com-monly cited Second Amendment law review articles this Court catalogued were, in no particular order,

• Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Firearms, 20 Wyo. L. Rev. 249 (2020);

• C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695 (2009);

• Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 203 (1983);

• Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995); and

• Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143 (1986).

Set aside for a moment the credibility concerns with these pieces: the fact that none of these authors is a trained historian, that some of these authors are gun-rights advocates by profession, and that few law journals are peer-reviewed. Any fact-finder would take into account these problems were these articles and experts subject to the crucible of litigation. For the time being, though, consider the articles strictly on their merits.

The district courts citing these articles derived considerable utility from them. One court, for example, used the Greenlee, Marshall, and (first) Kates articles to deny the defendant’s motion to dismiss, finding in them historical support for disarming dangerous individuals. See United States v. Dixon, No. 22 CR 140, 2023 WL 2664076, at *4 & n.3 (N.D. Ill. Mar. 28, 2023).

The problem is that these articles can be cherry-picked in the exact opposite direction-to support granting a defendant’s motion to dismiss.

For example, Marshall concludes that “a lifetime ban on any felon possessing any firearm is not ‘longstanding’ in America.” 32 Harv. J.L. & Pub. Pol’y at 697. And Greenlee finds “no historical justification for completely and forever depriving peaceable citizens-even nonviolent felons-of the right to keep and bear arms. Nor is there a historical justification for disarming unvirtuous citizens.” 20 Wyo. L. Rev. at 286.

If applied here, therefore, Marshall’s article supports Mr. Bullock’s right to keep a long gun in his home for self-defense, 32 Harv. J.L. & Pub. Pol’y at 732, and approves of re-armament for someone in Mr. Bullock’s situation. As Marshall writes, “it is difficult to see the justification for disarming a 60 year old who was convicted of a crime of violence at age 20, and was not punished capitally or with life in prison (classes that present no issue for an arms disability), but instead was released at age 40, and has stayed clean for 20 years.” Id. at 735; accord Larson, 60 Hastings L.J. at 1381. If applied here, meanwhile, Greenlee’s article would require additional proceedings to determine if Mr. Bullock was convicted of a violent or dangerous felony-the classification issue that will be addressed in detail below. 20 Wyo. L. Rev. at 285.

That leaves the Kates and Reynolds articles. They are even less persuasive.

As Greenlee acknowledges, Kates’ Michigan Law Review article is “important” for setting forth the theory that the Second Amendment was historically limited to virtuous citizens. Id. at 275. But Greenlee discredits that article, and Kates’ 1986 follow-up reaching the same conclusion, because they “pro-vide[] no meaningful support for the theory” and lack “any examples of laws disarming ‘unvirtuous’ citizens.” Id. at 27576. Greenlee gives no weight to Reynolds’ 1995 article for the same reason: it “included no examples of laws disarming ‘un-virtuous’ citizens.” Id. at 277. In short, neither the Kates nor the Reynolds piece demonstrates the tradition of disarmament they are trotted out to prove.

Accord Larson, 60 Hastings L.J. at 1374 (“Yet the actual sources Kates relied upon (and which subsequent writers have echoed) are surprisingly thin. Indeed, so far as I can determine, no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms.”).

Kates also asserts that felon disarmament is historically justified because the common law “punished felons with automatic forfeiture of all goods, usually accompanied by death.” 82 Mich. L. Rev. at 266. The sentence lacks any citation or analysis, and this Court has already discussed why this justification fails to support § 922(g)(1).

One might assume from this discussion that Greenlee got it right. This Judge is not so sure.

Greenlee, like Justice Barrett, makes several compelling points when he grounds in history the disarmament of dangerous persons, but the article is hardly bulletproof. When restricted only to Founding-era sources, half of Greenlee’s argument rests on the three ratifying conventions already discredited above. 20 Wyo. L. Rev. at 265-67 and 275 (asserting that “American tradition reflects the right [Samuel] Adams envisioned.”). And the other half of the Founding-era sources Greenlee relies upon show that persons could have their firearms right restored “once they no longer posed a violent threat.” Id. at 269. If that is true, Mr. Bullock may have regained his Second Amendment right years ago.

3. Concluding Thoughts on History and Tradition

In A Matter of Interpretation, Justice Scalia argued that “legislative history” had been manipulated and abused by outcome-oriented judges. A Matter of Interpretation at 29-37. “Since there are no rules as to how much weight an element of legislative history is entitled to,” he wrote, “it can usually be either relied upon or dismissed with equal plausibility.” Id. at 35-36. This allowed the “willful judge” to discard evidence simply by calling it “ambiguous” or “inconclusive.” Id. at 36.

“On balance,” he concluded, legislative history:

has facilitated rather than deterred decisions that are based upon the courts’ policy preferences, rather than neutral principles of law…. In any major piece of legislation, the legislative history is extensive, and there is something for everybody. As Judge Harold Leventhal used to say, the trick is to look over the heads of the crowd and pick out your friends. The variety and specificity of result that legislative history can achieve is unparalleled.

Id. at 35-36.

Three decades later, legislative history is out of favor, in part due to Justice Scalia’s advocacy. But all of his critiques apply with equal force to this new Second Amendment regime-the discernment of “historical tradition.”

The new standard has no accepted rules for what counts as evidence. As one historian said about Bruen, “the rule of evidence appears to be: if I agree with it, it’s evidence-if I don’t, it’s not.” Jill Lepore, The Supreme Court’s Selective Memory, The New Yorker (June 24, 2022). Like Justice Scalia’s nemeses, the justices who decided Bruen wrote off the history they didn’t like by declaring it “ambiguous at best.” 142 S.Ct. at 2139. And the new regime remains susceptible to accusations of political bias, as Judge Wilkinson (among others) has lamented. See 95 Va.L.Rev. at 267. Now, instead of plucking from the record a favorable statement of a friendly legislator, the Justices need only select a favorable historical analogue from a friend “in the legal academy.” Saul Cornell, Cherry-Picked History and Ideology-Driven Outcomes: Bruen’s Originalist Distortions, ScotusBlog (June 27, 2022). As demonstrated above, though, the most-frequently-cited law journals in this area either fail to support or wholly contradict the result they are wielded to justify.

When he confronted these problems in the era of legislative history, Justice Scalia called for “an end” to this “brief and failed experiment, if not for reasons of principle than for reasons of practicality.” A Matter of Interpretation at 36. “Judges lawyers, and clients will be saved an enormous amount of time and expense,” he wrote. Id. “What a waste. We did not use to do it, and we should do it no more.” Id. at 37.

For the same reasons, maybe it also is time to put an end to elevating “historical tradition” above all other modes of legal analysis.

D. The Problem of Individual Adjudication

Modern felon-in-possession laws are fairly straightforward. Felony status is usually a simple binary, and it’s easy to disarm the entire category of persons with felony convictions. Post-Bruen, however, the landscape may be much more complicated, requiring individual adjudication. Here are a few reasons why.

If the Supreme Court eventually determines at a high level of generality that “felon disarmament” is supported by history and tradition, we lower court judges need it to press on and determine the “original meaning” of a felony conviction. Bruen, 142 S.Ct. at 2137. Specifically, we need to know (1) whether all modern felonies result in disarmament, or just those that existed at the founding, and (2) whether all felonies result in disarmament, or just violent felonies. No matter how those questions turn out, we then need to know whether disarmament is a temporary or permanent consequence.

Attempting to understand the contours of those questions, this Court researched the original public meaning of the felony. That history is long and complicated, but this Court will do its best to explain the relevant features.

“The traditional common law felonies were nine: murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. Many more were added by statute.” Will Tress, Unintended Collateral Consequences: Defining Felony in the Early American Republic, 57 Clev. St. L. Rev. 461, 464 (2009) (citation omitted). When Blackstone-whose works “constituted the preeminent authority on English law for the founding generation,” Heller, 554 U.S. at 593-94 (quotation marks and citation omitted)-wrote his Commentaries in 1765, “Parliament had designated at least 160 crimes as statutory felonies,” Alice Ristroph, Farewell to the Felonry, 53 Harv. C.R.-C.L.L. Rev. 563, 572 (2018) (citation omitted). At that time, the definition of “felony” could be distilled into “crimes punishable by forfeiture and death.” Id.

Although the Founders used the word in the Constitution, “the parameters of the felony category were unclear at the time the Constitution was drafted and remained so for several decades.” Id. at 574. “A patch-work system of poorly organized and hard to locate statutes had created discontent with the legal system in post-Revolutionary America. This discontent was strengthened by uncertainty as to which portions of the common law tradition had made the transition from pre-to post-Independence.” Tress, 57 Clev. St. L. Rev. at 471. There was no “regular course of practice” that would ordinarily “liquidate & settle the meaning of disputed or indeterminate terms & phrases.” Bruen, 142 S.Ct. at 2136 (cleaned up).

Reformers soon modernized the system. See Tress, 57 Clev. St. L. Rev. at 469-70. By 1823, there had been so many changes that Massachusetts lawyer and legislator Nathan Dane wrote that there were “many felonies, not one punished with forfeiture of estate, and but a very few with death.” Christina Mulligan et al., Founding-Era Translations of the U.S. Constitution, 31 Const. Comment. 1, 45-46 (2016) (citation omitted).

To determine original public understanding, the Supreme Court has instructed us to be precise about the historical period we examine. On one hand, “English common-law practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers of our own Constitution.” Bruen, 142 S.Ct. at 2136. On the other hand, “we must also guard against giving postenactment history more weight than it can rightly bear.” Id. No, the Court has “generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” Id. at 2137 (collecting cases).

The problem is that “felony” was not well understood in 1791. One might think that, at a minimum, we could agree that the nine felonies enumerated at common law would qualify for disarmament. Not so fast.

Madison complained that the common-law definition of felony was “vague.” Eugene Kontorovich, Discretion, Delegation, and Defining in the Constitution’s Law of Nations Clause, 106 Nw. U. L. Rev. 1675, 1699 & n.113 (2012) (citation omitted). This Court does not know the context in which he said that, but Justice Barrett has elaborated for us. In Madison’s view, “’felony’ was ‘a term of loose signification even in the common law of England,’ but more so in the States where ‘[t]he meaning of the term . . . [was] not precisely the same in any two of the States; and varie[d] in each with every revision of its criminal laws.’” Kanter, 919 F.3d at 459 (Barrett, J., dissenting) (quoting The Federalist No. 42); see also Voisine, 579 U.S. at 698 (“The common law traditionally used a variety of overlapping and, frankly, confusing phrases to describe culpable mental states-among them, specific intent, general intent, presumed intent, willfulness, and malice.”).

And what about the statutory felonies? Are we expected to adjudicate disarmament on a case-by-case basis by, for example, comparing the present charge a defendant is facing to its Founding-era analogue? Maybe we could apply a “historical categorical approach” to “compare the elements of the [modern] statute forming the basis of the defendant’s conviction with the elements of the [historical] ‘generic’ crime-i.e., the offense as commonly understood.” Descamps v. United States, 570 U.S. 254, 257 (2013). And perhaps that also suggests a modified historical categorical approach, which “permits sentencing courts to consult a limited class of [modern] documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction,” then “compare the elements of the [modern] crime of conviction (including the alternative element used in the case) with the elements of the [historical] generic crime.” Id.

I say this tongue in cheek. We already use the categorical and modified categorical approaches to determine whether a defendant’s past conviction is “for a violent felony” for purposes of the Armed Career Criminal Act. Id. And the methodologies are not well-liked.

Professor Barkow, a former member of the U.S. Sentencing Commission, has described how “these state statutory questions end up clogging the federal court dockets, as judges struggle to determine whether various statutes from the fifty states meet the ACCA’s definition of ‘violent felony.’” Rachel E. Barkow, Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act and Mandatory Minimum Sentencing, 133 Harv. L. Rev. 200, 206 (2019). Justice Thomas calls the categorical approach “difficult to apply” and an “absurdity.” Quarles v. United States, 139 S.Ct. 1872, 1880-81 (2019) (Thomas, J., concurring). Justice Alito says we have created a “mess” that “calls for sentencing judges to delve into pointless abstract questions.” Mathis v. United States, 579 U.S. 500, 538, 541 (2016) (Alito, J., dissenting). Judge Bybee reports that “over the past decade, perhaps no other area of the law has demanded more of our resources.” United States v. Aguila-Montes de Oca, 655 F.3d 915, 917 (9th Cir. 2011) (en banc). Given the critiques, perhaps we should not expand the methodology to the disarmament context. Justice Barrett found dangerousness, rather than felony status, the dispositive lens of historical disarmament. Her dissent is fairly compelling. The Fifth Circuit’s recent decision in United States v. Rahimi, however, rejected analogies to historical laws disarming “dangerous” people, because the “why” of those laws was different than the “why” of modern laws. 61 F.4th at 457. It concluded that Founding-era Americans disarmed people to preserve “political and social order,” rather than protect potential victims from the threat of crime. Id.

The categorical approach is not universally condemned. See United States v. Morris, 61 F.4th 311, 321 (2d Cir. 2023) (Lohier, J., concurring) (finding “some wisdom” in it); United States v. Faust, 853 F.3d 39, 65-66 (1st Cir. 2017) (Barron, J., concurring) (concluding that the categorical approach “respects . . . the notice-protecting principle of lenity” and, “for all of its faults, reflects respect both for due process and federalism”); Amit Jain and Phillip Dane Warren, An Ode to the Categorical Approach, 67 UCLA L. Rev. Discourse 132, 135-36 (2019) (“The categorical approach . . . is far from the nonsensical nightmare its naysayers portray it to be Sure, the approach can be difficult to apply at times; federalism, after all, is messy. Even so, the categorical approach is far and away the fairest, most consistent, and most administrable option among alternatives.”).

Finally, if dangerousness is indeed the lens through which disarmament is adjudicated, we will need to know the proper standard to apply. Judge Schreier observes that in her Circuit, the definition of dangerousness is different from the definition of crime of violence; dangerousness requires only “the potential for harm to another person.” Hoeft, 2023 WL 2586030, at *5 (citation omitted). She found that manslaughter easily met that definition, sufficient to support a restriction of the defendant’s Second Amendment rights. Id. If the definition of violence is applied, in contrast, some forms of second-degree murder, manslaughter, and assault may be excluded. That is so because “in many States, some forms of second-degree murder and manslaughter do not require intent or knowledge,” and “several States criminalize felony assault in a single, indivisible provision that can be satisfied by intent, knowledge, or recklessness.” Borden v. United States, 141 S.Ct. 1817, 1856 (2021) (Kavanaugh, J., dissenting) (citations omitted).

This Court does not know the answers to these questions, but presents them here in hopes that future judges and justices can answer them with enough detail to enable trial courts to perform their duties.

IV. Mr. Bullock’s Case

The remaining question is how this law applies to Mr. Bullock.

For the reasons stated above, this Court believes that Heller‘s assurances about felon-in-possession laws are not controlling. The new standard articulated in Bruen applies.

At Bruen step one, the plain text of the Second Amendment covers Mr. Bullock’s conduct-possession of ordinary firearms in the home-and therefore presumptively protects him. The burden then shifts to the government. It cannot “simply posit” that § 922(g)(1) “promotes an important interest.” Bruen, 142 S.Ct. at 2126. Instead, “the government must demonstrate that [§ 922(g)(1)] is consistent with this Nation’s historical tradition of firearm regulation.” Id.

A. The Government’s Prior Positions

The government attorney prosecuting Mr. Bullock’s case, like all of us dealing with Bruen‘s fallout, was placed in an unenviable position. That is because in cases litigated not that long ago, the U.S. Department of Justice formally advanced the position that early American history did not support felon disarmament.

In 2011, for example, the Department told Judges on the U.S. Court of Appeals for the Fourth Circuit that “[a]s for convicted criminals, Colonial societies do not appear to have categorically prohibited their ownership of firearms.” Brief of Appellee, United States v. Staten, No. 10-5318, 2011 WL 1542053, at *25 (4th Cir. Apr. 25, 2011). Similarly, in a case pending before the U.S. Court of Appeals for the First Circuit, the government told the court that “18 U.S.C. § 922(g)(1) is firmly rooted in the twentieth century and likely bears little resemblance to laws in effect at the time the Second Amendment was ratified.” Brief of Appellee, United States v. Petten-gill, No. 10-2024, 2011 WL 1977759, at **27-28 (1st Cir. May 13, 2011).

Given Bruen‘s demanding standard, these admissions suggested that the government had its work cut out for it.

B. The Government’s Response Brief

In any event, the three-and-a-half-page response brief the government filed in this case, dated September 8, 2022, fails to meet its burden.

The government opens by asserting that earlier in 2022, the Fifth Circuit rejected a challenge to another provision of § 922(g). Docket No. 63 at 1. Not so. The case it cites, United States v. McGinnis, was decided in 2020, not 2022. 956 F.3d 747 (5th Cir. 2020). That means it was decided without the benefit of Bruen. And recall that Bruen expressly abrogated Fifth Circuit law. See 142 S.Ct. at 2127 n.4.

The government then quotes Heller‘s assurance that felon-inpossession laws are presumptively lawful. Docket No. 63 at 2. As already explained, the Court cannot honor the advisory opinion that assurance represents.

Next, the government attempts to limit Bruen to gun permit disputes. Id. Mr. Bullock cannot benefit from the case, it claims, because he “is charged pursuant to a statute that does not involve the exercise of discretion in determining whether to grant firearms permits.” Id. That fails to recognize how Bruen articulated a new legal standard applicable to all Second Amendment challenges.

The government then tries to apply selected language from Bruen. It urges that the decision protects only “’the right of law-abiding, responsible citizens to use arms’ for self-defense.” 142 S.Ct. at 2131 (quoting Heller, 554 U.S. at 635).

Although the en banc Third Circuit found these words to constitute “dicta,” Range, 69 F.4th at 101, a point on which this Court agrees, they form the core of the government’s argument here. So what follows will explain in more detail why this language cannot bear the weight it is given.

First, if the Court is to honor this line, it must necessarily refuse to honor the very next paragraph of Heller, in which the Supreme Court promised the American people that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” Heller, 554 U.S. at 635 . This Court does not know how to make that choice. The bevy of post-Bruen cases suggest that the time to expound upon the historical justifications for § 922(g)(1) is now.

Second, as Range explained, the phrase “law-abiding, responsible citizens” is “hopelessly vague.” 69 F.4th at 102. It cannot “mean that every American who gets a traffic ticket” loses her Second Amendment rights. Id. But limiting it to quote- unquote “real crimes” like felonies also misses the mark, because some modern felonies “seem minor” and “some misdemeanors seem serious.” Id. The modifier “responsible,” meanwhile, is impossible to apply. “In our Republic of over 330 million people, Americans have widely divergent ideas about what is required for one to be considered a ‘responsible’ citizen.” Id.

Nor can it mean that every postal carrier who steals a $15 gift card from the mail should lose her Second Amendment right. See, e.g., United States v. Marshall, No. 3:18-CR-248 (S.D.Miss. filed Dec. 11, 2018) (former USPS carrier pleaded guilty to violating 18 U.S.C. § 1709 by stealing a $15 Lowe’s gift card from the mail); United States v. Rosell, No. 3:18-CR-255 (S.D.Miss. filed Dec. 12, 2018) (former USPS employee pleaded guilty to violating 18 U.S.C. § 1709 by stealing a Lowe’s gift card and $10 from the mail); United States v. Sumner, No. 3:20-CR-152 (S.D.Miss. filed Nov. 17, 2020) (former USPS employee pleaded guilty to violating 18 U.S.C. § 1709 by stealing and using 15 $10 coupons from the mail).

Finally, even if the Second Amendment protects only “lawabiding, responsible citizens,” that does not resolve whether § 922(g)(1) is constitutional as applied to Mr. Bullock. He completed his sentence approximately 15 years ago. An examination of history and tradition cannot be avoided in this case- in other words, we must grapple with the historical record around felon disarmament-because we need to know whether Mr. Bullock’s Second Amendment rights were restored upon completion of his carceral sentence. But the government has avoided the issue of rights restoration.

The government’s brief doesn’t say much more. It quotes the concurrences of Justices Alito and Kavanaugh for the proposition that felon-in-possession laws were left undisturbed by Bruen, Docket No. 63 at 3, but this Order has already addressed those points. The government cites a colleague’s decision denying a similar motion to dismiss, but that decision relies upon United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) to conclude that “the government could disarm ‘unvirtuous citizens.’” United States v. Daniels, 610 F.Supp.3d 892, 896 (S.D.Miss. 2022). As shown above, that theory lacks historical support. And lastly, the government summarily asserts that § 922(g)(1) “is part of the historical tradition of regulating firearms possession ‘to prevent guns from falling into the wrong hands.’” Docket No. 63 at 3. The case it quotes for that proposition, however, predates Bruen, concerns a different criminal law, and says nothing about historical tradition. See Abramski v. United States, 573 U.S. 169, 172 (2014).

Yancey is based on the same Reynolds and Kates articles that don’t provide any examples to support their theory. See 621 F.3d at 684-85.

Missing from this brief, in sum, is any example of how American history supports § 922(g)(1), much less the number of examples Bruen requires to constitute a well-established tradition. The government has, therefore, not met its burden.

To this, the government will likely argue that the Court should consider its three supplemental briefs. The Court turns to those now.

C. The Government’s Supplemental Briefs

Recall that after the briefing closed on the Motion to Dismiss, the Court asked the parties to provide their “position[s] on the appointment of a consulting expert.” Docket No. 65 at 6. The government timely responded. Docket No. 71. It first argued that, given precedent, no historian was required because “the prohibition against felons possessing firearms is so thoroughly established as to not require detailed exploration of the historical record for the purpose of this case.” Id. at 1. It then presented a new line of attack, contending that Mr. Bullock qualifies for disarmament because his felonies were violent and he is dangerous. Id. at 6-7.

The first argument was in line with the government’s response brief and presents no procedural problem. The new line of attack, however, was untimely and will not be considered.

Bruen was clear. “[I]n our adversarial system of adjudication, we follow the principle of party presentation.” 142 S.Ct. at 2130 n.6 (citation omitted). “Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us.” Greenlaw v. United States, 554 U.S. 237, 244 (2008) (quotation marks and citation omitted). It is for that reason that we hold counsel, and their clients, to the positions they advance at the time they should be advanced. See Link v. Wabash R. Co., 370 U.S. 626, 634 (1962).

One of the rules of party presentation is that courts may decline to consider arguments “outside the scope of the supplemental briefing.” In re APA Assessment Fee Litig., 766 F.3d 39, 56 (D.C. Cir. 2014). The rule is wielded across the Courts of Appeals and the district courts of this Circuit. See United States v. McCann, 517 F.3d 1, 2 n.1 (1st Cir. 2005); Sharp v. Johnson, 669 F.3d 144, 153 n.3 (3d Cir. 2012); Doe v. Heil, 533 Fed.Appx. 831, 836 n.4 (10th Cir. 2013); United States v. Jackson, 373 Fed.Appx. 7, 10 n.4 (11th Cir. 2010); see also Saketkoo v. Tulane Univ. Sch. of Med., 510 F.Supp.3d 376, 398 (E.D. La. 2020); Whitney Nat. Bank v. Boylston, No. CIV.A. 09-59, 2009 WL 2423957, at *4 (W.D. La. Aug. 6, 2009); MacroPoint, LLC v. Ruiz Food Prod., Inc., No. 6:16-CV-1133-RWS-KNM, 2017 WL 3722053, at *6 (E.D. Tex. Aug. 29, 2017). “To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant’s rights”-not the government’s. Greenlaw, 554 U.S. at 243-44 (citation omitted).

Here, the Court exercises that discretion and declines to consider the United States’ untimely argument that Mr. Bullock may be disarmed because of violent felonies or dangerousness. It constitutes an unauthorized second bite at the apple.

Even if the Court considered this argument, it would reject it on the merits.

In this part of its supplemental brief, the government blames Mr. Bullock for “find[ing] no proponent for a Second Amendment right to bear arms in the existing case law in this Circuit or elsewhere and there is no basis to expect that resort to the historical record will be of any avail under the circumstances of this case.” Docket No. 71 at 7. But after Bruen, the burden to prove historical analogues rests on the government, not the defendant. “The United States was thus well aware that Bruen not only placed the burden squarely on it to develop the historical record, but also put it on notice that its failure to do so might be decisive.” United States v. Stambaugh, No. CR-22-218-PRW-2, 2023 WL 172037, at *5 (W.D. Okla. Jan. 12, 2023).

The government’s violent-and-dangerous argument is also out of sequence, as the government still had not (and has not today) proven the predicate question: that there is a historical tradition of disarming either the violent or the dangerous. The government had to prove the underlying principle of disarmament before it could apply it to Mr. Bullock.

Mr. Bullock has a criminal history, yes. Armed with that knowledge, though, the government put forth no effort to ground in history the present charges it brought again him. That is what Bruen requires. As the Stambaugh court concluded in finding unconstitutional a different portion of § 922 after Bruen, “[a] historical analogue to support constitutional applications of § 922(n) might well exist, but the United States hasn’t pointed to it…. [T]hat failure is fatal.” Id. at *6.

Again, Mr. Bullock presents an as-applied challenge to § 922(g)(1). He contends that the charge against him, and him only, should be dismissed because “the prosecution has failed to establish a ‘historical tradition’ supporting lifetime criminalization of [his] possession of a firearm.” Docket No. 64 at 9. The Court agrees. In plain English, that means that the charge against Mr. Bullock will be dismissed today, and the federal government may continue to prosecute other persons for violating § 922(g)(1).

Of course, the government may seek appellate review of this ruling, giving the Fifth Circuit another opportunity to grapple with the postBruen landscape.

V. Conclusion

This Court has contemplated and researched the latest Second Amendment standard for quite some time. It has two final thoughts about this new Constitutional regime. They concern how the Court defines Constitutional rights and originalism’s place in American law.

A. The Persistence of Second-Class Constitutional Rights

Since 2008, the Supreme Court has broadly construed the Second Amendment. “Arms” is defined at a high level of generality. It is not limited to the weapons of 1791, like muskets and flintlock pistols, or those arms that a Militia uses in collective defense. Instead, “arms” includes “modern instruments that facilitate armed self-defense.” Bruen, 142 S.Ct. at 2132 (emphasis added).

Gun-rights advocates have no doubt celebrated this definition. The Second Amendment is second-class no longer. It is the brightest star in the Constitutional constellation.

But this expansive definition is puzzling. Many Americans think about originalism in a different way. If Founding-era Americans knew what semi-automatic weapons could do, some say, surely they would have limited their availability. See, e.g., Christopher J. Peters, What Are Constitutional Rights for? The Case of the Second Amendment, 68 Okla. L. Rev. 433, 459 (2016).

Nevertheless, in its recent Second Amendment cases, the Court chose broad definitions over narrow ones. It construed the text so expansively that we are still working to understand its scope.

In breathing new life into the Second Amendment, though, the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights. Americans are waiting for Heller and Bruen‘s reasoning to reach the rest of the Constitution.

Consider the right to a “speedy” trial. U.S. Const. amend. VI. The Supreme Court’s leading speedy trial case blessed a five-year delay between the defendant’s arrest and his trial. See Barker v. Wingo, 407 U.S. 514, 533 (1972). But that doesn’t comport with the historical understanding of a “speedy” trial- which was apparently measured in months, not years. See Klopfer v. North Carolina, 386 U.S. 213, 223-24 (1967). Unless the Court takes the Bruen approach to the Sixth Amendment, innocent Americans will continue to suffer in jail for years.

No wonder “the Mississippi Supreme Court has not reversed a criminal conviction for a speedy trial violation since 1992.” Patterson v. Hinds Cnty., Mississippi, No. 3:13-CV-432, 2016 WL 7177762, at *4 (S.D.Miss. June 10, 2016) (citations omitted). It faces no consequence for erasing this Constitutional right.

Consider the ancient right to a “Writ of Habeas Corpus.” U.S. Const. art. I, § 9, cl. 2. The burden of securing habeas relief falls upon the individual rather than the government, and Supreme Court “holdings that speak only at a high level of generality” cannot supply a ground for relief. Brown v. Davenport, 142 S.Ct. 1510, 1525 (2022). In habeas, rather, the law requires “a more granular approach.” Russell v. Denmark, 68 F.4th 252, 272 (5th Cir. 2023). Until the Court applies expansive, Bruen-like definitions in this area of the law, the Great Writ will continue to have second-class status.

You might explain away the Court’s habeas caselaw as reflecting proper deference to the political branches, rather than a result of the Justices’ choices. Until you compare the Court’s treatment of habeas to its treatment of voting rights.

Congress and the President severely limited habeas relief in 1996, when they enacted into law the Antiterrorism and Effective Death Penalty Act. The Supreme Court had no problem with those restrictions. See Felker v. Turpin, 518 U.S. 651 (1996).

Despite not being enumerated in the Constitution, voting is a “fundamental right.” Packingham v. North Carolina, 582 U.S. 98, 108 (2017). That is because voting is “preservative of all rights.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 667 (1966). Even before the twentieth century, the Supreme Court professed as much. See Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Congress and the President took action to protect this right, pursuant to their power under the Reconstruction Amendments, when they enacted the Voting Rights Act of 1965. The political branches reauthorized that law for decades. The latest reauthorization unanimously passed the Senate in 2006. President George W. Bush signed it into law.

The Supreme Court, however, found the reauthorization to be unconstitutional. Congress’s factual findings were not sufficiently “updated” to pass muster. Shelby Cnty., Alabama v. Holder, 570 U.S. 529, 557 (2013). If an individual tries to enforce their fundamental right to vote, “they bear a heavy burden” to prove the violation, Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 200 (2008), and they must define the scope of the right “at a painfully high degree of specificity,” Bridges, 136 Harv. L. Rev. at 27. The blessings of Bruen have not passed down to voting.

For example, because voter identification laws were not specifically “used during the pre-Civil Rights Era to injure people of color, . . . the Roberts Court sees no racial injury in present-day voter identification laws that it is willing to remedy.” Bridges, 136 Harv. L. Rev. at 27. “The discovery of a resemblance is a matter of interpretation, after all.” Id. at 28.

Perhaps the most glaring inconsistency is found when individuals seek money damages for constitutional violations. In marked contrast to its Second Amendment caselaw, the Court places the burden to prove the constitutional violation on the harmed individual. And again unlike the Second Amendment standard, when it comes to these disfavored rights, the high Court expressly forbids us from defining the right “at a high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotation marks and citation omitted). Lower courts must instead “frame the constitutional question with specificity and granularity.” Morrow v. Meachum, 917 F.3d 870, 874-75 (5th Cir. 2019). The notion that we could treat these rights as we treated the Second Amendment in Heller, McDonald, and Bruen is altogether absent.

Maybe the Supreme Court is correct that in this country, to “secure the Blessings of Liberty to ourselves and our Posterity,” the government should have the burden of justifying itself when it deprives people of their constitutional rights. Perhaps the Court is also correct that constitutional rights should be defined expansively. The Court just isn’t consistent about it.

We have one Constitution. All of it is law. It has been enforced today as best as this Judge can discern the Bruen Court’s holding and reasoning. And, one hopes, a future Supreme Court will not rest until it honors the rest of the Constitution as zealously as it now interprets the Second Amendment.

B. Revisiting Originalism

Bruen shows us that originalism is now the Supreme Court’s dominant mode of constitutional interpretation. This Court is not so sure it should be.

For one, the originalist case for originalism is lacking. This Court has yet to see evidence proving “that the original meaning of Article III of the Constitution included the understanding that courts should interpret the Constitution based on its original meanings.” Erwin Chemerinsky, Worse than Nothing: The Dangerous Fallacy of Originalism 82 (2022) [hereinafter Worse than Nothing]. In other words, it is not clear that founding-era Americans collectively agreed that for time immemorial, their descendants would be bound by the founding generation’s views on how the Constitution should be read.

This Court is also not sure that ceding this much power to the dead hand of the past is so wise. “The American people learned a great deal during the early years of their Republic- including that many of their most cherished beliefs and firmly held ideas were either wrong or unworkable.” Larry D. Kramer, The Supreme Court 2000 Term Foreword: We the Court, 115 Harv. L. Rev. 4, 12 (2001). The Framers themselves “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).

Dean Kramer wondered “why any sensible person, even a lawyer, would privilege the speculative writings of the 1780s over the hard-earned experience of subsequent decades.” 115 Harv. L. Rev. at 12.

We have seen this evolution time and time again.

Many of our Nation’s finest moments came when we rejected the original public meaning of a Constitutional provision. Brown v. Board of Education rejected the original interpretation of “equal protection,” which had led to “separate but equal” schools. Worse than Nothing at 68-69. The original understanding of the Fourteenth Amendment limited women “to fulfil the noble and benign offices of wife and mother.” Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring). It had to go. Earlier Americans might not have understood the notion of “due process” to include marriage equality. See Ober-gefell v. Hodges, 576 U.S. 644 (2015). But future generations did. “We changed.” Campaign for Southern Equality v. Bryant, 64 F.Supp.3d 906, 922 (S.D.Miss. 2014).

Hewing to outdated ideas no longer served “We the People.” Hewing too closely to the past reduced our ability to make America “more perfect.” As a result, “new constitutional principles . . . emerged to meet the challenges of a changing society.” Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 Harv. L. Rev. 1, 5 (1987). And in this way, “the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.” Id.

Let’s be clear about what this means for originalism. The next generation will have its own conceptions of liberty. It will interpret the principles of the Constitution, enduring as they are, differently than this generation has interpreted them. Change is unstoppable. And to the extent Bruen and decisions like it try to stop that change, they will not last long. The only question is how long the People will let them remain.

The motion to dismiss is granted. The Clerk of Court shall close the case.

SO ORDERED.

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Third Circuit Holds that a Nonviolent Offender May Not Be Stripped of Second Amendment Rights.

The Truth News — Sun, 12 May 2024 08:27:37 +0000

Third Circuit Holds that a Nonviolent Offender May Not Be Stripped of Second Amendment Rights.

Range v. Attorney General

As gun rights have evolved in the United States, the Supreme Court has moved away from a means-end test and adopted a history-and-tradition framework for evaluating Second Amendment challenges.¹ This framework requires that any firearm regulation be “consistent with this Nation’s historical tradition of firearm regulation.”² Numerous federal courts have already used this test to swiftly strike down over a dozen state and federal laws cabining gun possession rights.³ Lower courts presented with challenges to felon-in-possession laws, however, have greatly differed over how to analogize firearm regulations of the Founding to the present.⁴ Recently, in Range v. Attorney General,⁵ the Third Circuit applied this test, as required under New York State Rifle & Pistol Association v. Bruen,⁶ and determined there were not historical analogues to stripping a nonviolent offender⁷ of his Second Amendment rights. The decision — the first of a federal circuit applying 18 U.S.C. § 922(g)(1) after Bruen⁸ — has raised questions about whether felon-in-possession laws are still “presumptively lawful.”⁹ Range narrowly decided that firearm disenfranchisement of convicted individuals “like Range” is unconstitutional.¹⁰ The Third Circuit’s inchoate “like Range” test underscores that the history-and-tradition test is difficult for evaluating challenges to felon-in-possession laws. By failing to directly grapple with the history-and-tradition test’s indeterminacy, the Third Circuit missed an opportunity to adopt a more definite standard of dangerousness as the “touchstone.”¹¹

In August of 1995, Bryan Range pleaded guilty to one count of making a false statement to obtain food stamp assistance, in violation of title 62, section 481(a) of the Pennsylvania Consolidated Statutes.¹² Mr. Range, around the time of the offense, earned about $300 per week.¹³ Mr. Range’s wife, Mrs. Range, filled out an application for food stamps, and on the application, Mr. Range’s income was omitted.¹⁴ Mr. Range accepted responsibility for the omission on the application.¹⁵

At that time, Mr. Range’s false statement was classified as a first-degree misdemeanor, punishable by a maximum of five years’ imprisonment, under Pennsylvania law.¹⁶ Consequently, his conviction triggered the application of § 922(g)(1),¹⁷ but Mr. Range maintained that he was not informed by the prosecutor or judge that his pleading would result in a firearms possession ban.¹⁸ Unaware that he was barred, Mr. Range attempted to purchase a gun twice.¹⁹ He was unsuccessful both times, and upon further research, he realized his nonviolent conviction precluded him from possessing a gun.²⁰

Mr. Range, alleging that § 922(g)(1) violated his Second Amendment rights, filed suit in the District Court for the Eastern District of Pennsylvania.²¹ Judge Pratter looked to the Third Circuit’s test in Binderup v. Attorney General²² to determine whether a crime is so serious as to warrant a ban on a felon’s possession of firearms. Judge Pratter found one factor — cross-jurisdictional consensus about the seriousness of crime — weighed in favor of the government.²³ This was sufficient for the government to prevail at step one, so the court granted summary judgment for the government.²⁴ Mr. Range appealed.²⁵

The Third Circuit affirmed.²⁶ In a per curiam opinion, Judges Shwartz, Krause, and Roth held that § 922(g)(1), as applied to Mr. Range, was constitutional.²⁷ Between Mr. Range’s appeal and the Third Circuit hearing the case, the Supreme Court decided Bruen. Establishing a history-and-tradition test, Bruen abrogated the Third Circuit’s seriousness test from Binderup.²⁸ The panel applied the Bruen history-and-tradition test — surveying the historical record of felon-in-possession laws in England and in the Founding era — which first looks at whether the Second Amendment covers the regulated conduct or individual and then second at whether there are historical analogues to the regulation.²⁹ The Third Circuit determined that “§ 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.”³⁰ Mr. Range successfully petitioned for the case to be reheard en banc.³¹

The Third Circuit, sitting en banc, reversed and remanded.³² Writing for the majority, Judge Hardiman³³ applied the Bruen two-step test.

First, the majority determined that the Second Amendment applied to Mr. Range, notwithstanding his nonviolent misdemeanor conviction.³⁴ The majority acknowledged that District of Columbia v. Heller,³⁵ McDonald v. City of Chicago,³⁶ and Bruen in dicta stated that only “law-abiding citizens,” not “the people” writ large, are protected under the Second Amendment, but the majority discussed how “the people” is used not only in the Second Amendment but also throughout the Constitution.³⁷ If Mr. Range were not included as “the people” in the Second Amendment context, then he would be precluded from other rights as well.³⁸ The majority also found that limiting Second Amendment rights to only those who are “law-abiding, responsible citizens” would be too vague and broad.³⁹ The majority ultimately held that Mr. Range was one of “the people” whom the Second Amendment protects.⁴⁰ Next, the Third Circuit concluded its analysis of Bruen’s first step by ruling that § 922(g)(1) regulates Second Amendment conduct, and that Mr. Range’s desire to possess firearms to hunt and for self-defense fell within the scope of the Second Amendment right under Heller.⁴¹

Second, the majority looked at whether § 922(g)(1) is a firearm regulation consistent with the nation’s history and tradition.⁴² The government relied on the dicta in Heller saying that there is a “longstanding” history of felon-in-possession laws, Justice Kavanaugh’s concurrence in Bruen stating that felon-in-possession laws are “presumptively lawful,” and the 1961 amendments to the Federal Firearms Act⁴³ to support its contention that there is a history and tradition of felon-in-possession regulations.⁴⁴at 103–06. The majority found this support unconvincing because the “longstanding” firearm regulation initially only applied to violent offenders, which Mr. Range was not, and because the “1961 iteration of § 922(g)(1)” was passed too recently (that is, 170 years after the ratification of the Second Amendment) to be “longstanding.”⁴⁵ The government also pointed to historical firearm laws that disenfranchised those who were distrusted — Loyalists, Native Americans, Quakers, Catholics, and Blacks — but the majority determined that Mr. Range was not part of a similar group like those regulated in the Founding era.⁴⁶ The majority also concluded that the government’s argument that even nonviolent offenses were considered serious and punishable by death was not related to the issue in front of them.⁴⁷ Lastly, the majority held that the government’s citation to persuasive authorities was unconvincing because those opinions were handed down before Bruen abrogated prior tests.⁴⁸ Therefore, the court ruled that the government did not meet its burden of establishing that § 922(g)(1), as applied to Mr. Range, was consistent with the history and tradition of American firearms regulation.⁴⁹ The Third Circuit reversed the judgment of the district court and remanded so that the district court could grant declaratory judgment in favor of Mr. Range.⁵⁰

Judge Porter concurred.⁵¹ He wrote separately to offer reasoning as to why there were no historical laws like § 922(g)(1).⁵²

Judge Ambro, joined by Judges Greenaway, Jr., and Montgomery-Reeves, also concurred.⁵³ Judge Ambro emphasized that § 922(g)(1) remained “presumptively lawful” as a mechanism of regulating those who are a threat to society.⁵⁴

Judge Shwartz, joined by Judge Restrepo, dissented.⁵⁵ She critiqued the majority’s treatment of precedent and historical analogues to § 922(g)(1). She also argued there was a tradition of regulating those deemed to be disloyal or disrespectful of the law.⁵⁶

Judge Krause also dissented.⁵⁷ She underscored that the historical record supports disarming those who disrespect the law and posited that the majority could have made a narrower ruling.⁵⁸

Lastly, Judge Roth also dissented.⁵⁹ She argued that § 922(g)(1) is consistent with historical firearm regulations.⁶⁰

Range, unprecedentedly, held there is not a historical basis for disenfranchising a nonviolent offender, arguably “without articulating any principles mediating historical and modern laws.”⁶¹ The court reached the right conclusion that Mr. Range should not be barred from possessing firearms, but the majority’s narrow “like Range” test neglected to provide any guidance about “[w]hat specifically is it about Range that exempts him — and going forward, those ‘like [him]’ — from § 922(g)(1)’s enforcement.”⁶² As Judge Krause identified, if the “like Range” test is about whether the underlying conviction was for a nonviolent offense or whether the convicted individual has exhibited law-abiding behavior, then this standard is severely flawed.⁶³ If, on the other hand, the “like Range” test is really about dangerousness, the court has punted on adopting this standard.

The majority notably did not rely on Mr. Range’s argument “that because ‘there is no historical tradition of disarming nonviolent felons,’ dangerousness is the ‘touchstone.’”⁶⁴ The majority found that it “need not decide this dispute today because the Government did not carry its burden to provide a historical analogue to permanently disarm someone like Range, whether grounded in dangerousness or not.”⁶⁵ Rather than set forth an indeterminate “like Range” standard, the Court should have interpreted § 922(g)(1) as analogous to historical firearm regulations of those who were perceived to be “dangerous.” Adopting a “dangerousness” framework, which comports with Bruen, would provide courts with a clearer way to analogize § 922(g) challenges, which could allow for more individuals with criminal records to regain their Second Amendment rights.

Bruen required the Range court to analogize Mr. Range’s nonviolent offense to historical regulations of similar conduct.⁶⁶ According to scholars, there is a long tradition of regulating gun ownership of those who were deemed to be dangerous, disloyal, and untrustworthy.⁶⁷ Importantly, “there is no historical justification for completely and forever depriving peaceable citizens — even nonviolent felons — of the right to keep and bear arms.”⁶⁸ The majority correctly held that there is no historical basis for disenfranchising Mr. Range. Mr. Range’s conduct should certainly not be seen as being dangerous or disloyal, and his one-time criminal offense for food stamp fraud should not render him as permanently non-law-abiding. The fact that the opinions in Range drew upon the same history and reached different conclusions underscores the challenge of interpreting historical analogues.⁶⁹ While historical interpretation will often be debated, a dangerousness framework can provide clearer guidance on how judges should analogize modern Second Amendment regulations to those of the past. Judges, then, could more uniformly analyze the permissible scope of § 922(g)(1). Consequently, courts could rule that more individuals with criminal records, such as Mr. Range, should regain their Second Amendment rights.

The court’s lack of unanimity on how to interpret historical analogues may speak to a definitional issue — in which case, solely relying upon concepts like “violent” and “law-abiding” may be misplaced. As Judge Krause already articulated, interpreting the “like Range” test to mean “law-abiding” or nonviolent is “confounding” and “unworkable.”⁷⁰ For one, considering a convicted person to be law-abiding is indeed counterintuitive.⁷¹ Judge Krause also underscored the difficulty in classifying what a violent crime is.⁷² Judge Ambro’s “threat to society” framework⁷³ is similarly faulty because such a standard is seemingly arbitrary. For example, are “thieves,” as Judge Ambro posited,⁷⁴ really a threat to society? Is a shoplifter? If so, Mr. Range, who was convicted of fraud, could be a thief. In fact, under Judge Ambro’s formulation, most white-collar offenders⁷⁵ would be barred from firearm possession. However, there is no history before the 1960s that supports disenfranchising those who are “nonviolent.”⁷⁶ In contrast, focusing on dangerousness, rather than on the overinclusive and indeterminate concepts of “violence” and “law-abiding” to disenfranchise those who are threats to society, aligns more closely with the history of firearm regulations. Moreover, defining a violent offense is also a “political act” that is laden with racism and classism.⁷⁷ “Dangerousness” arguably can be determined through more standardized metrics.

By framing the history-and-tradition test as an inquiry into “dangerousness,” courts would not have to rely only on subjective⁷⁸ determinations. Furthermore, courts would not have to rely on an individual’s criminal record, which would be a welcome departure since a violent conviction is not a reliable predictor of future dangerousness.⁷⁹ Data reveal that individuals who were released from state prison for drug offenses were more likely to be rearrested for a violent offense than were individuals released for homicide or sexual assault.⁸⁰ The evidence shows that “people convicted of violent and sexual offenses are actually among the least likely to be rearrested.”⁸¹ A person who was convicted for a violent offense is not inherently “dangerous” once released back into society.⁸² Thus, a conviction is not a reliable predictor of future dangerousness.

Rather, there is a body of research that reveals what factors are and are not accurate predictors of future “dangerousness.”⁸³ Data-informed determinations of “dangerousness” can serve as guidelines for judges when ascertaining whether a specific individual with a criminal conviction or a class of individuals with the same criminal conviction has Second Amendment rights. Although far from perfect,⁸⁴ risk assessment tools can be used to provide a more objective (i.e., data-driven and consistent) evaluation of who may be dangerous.⁸⁵ Demographic factors like age, for example, have historically been reliable predictors of future violent convictions.⁸⁶ Courts, however, must be cognizant that risk assessment tools have been imbued with systemic racism.⁸⁷

These factors can also help distinguish why certain convicted offenders, such as domestic abusers, maybe should be treated differently. For example, there is some evidence that ties firearm possession and a history of domestic violence to future dangerousness.⁸⁸ Thus, notions of “dangerousness” can ease concerns held by those like Judges Krause and Shwartz, who worried that under the “like Range” test all felon-in-possession laws are essentially unlawful. Though flawed, data-informed notions of dangerousness can guide courts in determining which individuals with criminal records still have Second Amendment rights.

While the holding of Range comports with Bruen’s history-and-tradition test, the “like Range” standard provides little guidance for courts on how to analogize historical laws to § 922(g)(1).⁸⁹ Until the Supreme Court clarifies the extent to which felon-in-possession laws are lawful, or overturns the Bruen history-and-tradition test, courts can and should evaluate modern felon-in-possession laws through the framework of dangerousness. But even when considering “dangerousness” as part of a Bruen history-and-tradition analysis, courts should be careful to remain critical, ensuring that such assessments do not reflect race or class biases. If courts adopt and vigilantly apply a dangerousness framework, many individuals with criminal convictions can have their Second Amendment rights rightfully restored under Bruen. source

Range v. AG and the Shifting Unconstitutionality of Gun Regulation in the US

On June 6, 2023, an en banc panel of the United States Court of Appeals for the Third Circuit ruled that 18 U.S.C. §922(g)(1), the “felon in possession of a firearm” statute, is unconstitutional as applied to one individual, Bryan Range. While the decision purports to be “a narrow one[,]” the rationale that underpins the decision calls into question whether statutes prohibiting those convicted of crimes punishable by more than one year in prison continue to pass constitutional muster. This article summarizes the series of events and decisions that led to Range, explains why the Range decision has important and broad implications on society, and predicts where courts may ultimately draw the line in the burgeoning struggle between Second Amendment rights and firearm regulation.

As to the case at hand, Range’s offense was about as innocuous as a crime that triggers the felon in possession statute can be. In 1995, Range, who at the time earned between $9.00 and $9.50 per hour while raising three children, underreported his income to qualify for food stamps. Range received the food stamps and when his false underreporting was discovered, had been improperly enriched by $2,458. Range served three years’ probation without incident.

While Range did not spend any time in prison, the crime of making false statements in order to obtain food stamps could have been punishable for up to five years imprisonment under the relevant Pennsylvania statute. Therefore, pursuant to§922(g)(1), which strips felons of their right to possess firearms if they face more than one year in prison (or in certain circumstances, those convicted of a state misdemeanor with a potential sentence of more than two years), Range was forever ineligible to own a gun. Range purports to have learned about this restriction for the first time when he attempted to purchase a deer-hunting rifle in 1998.

Prior to the US Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, and generally speaking, for the 61 years since the current version of §922(g) has been codified, an analysis of Range’s case would have required some discussion of the means-ends scrutiny of the law at issue. That is to say in the basest terms, whether the challenged firearm law struck an appropriate balance between the Second Amendment right of the felon versus the need for public safety. Since the US Supreme Court’s decision in United States v. Heller, the Third Circuit Court of Appeals performed this analysis using what it called a “multifactored seriousness inquiry.” Under that test, the government probably could not strip an individual of his or her right to possess a firearm for jaywalking but could (and obviously did), strip people of their Second Amendment rights for things like making false statements to the government.

Both parties in Range conceded that the seriousness inquiry is kaput. Instead, and as set forth in Bruen, “the government may not simply posit that the [firearms] regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Stated differently, whether a firearm restriction comports with the Second Amendment is no longer dependent on whether the law makes good policy sense or promotes an important need but rather whether a comparator to the regulation can be found in this Nation’s historical firearm laws.

To perform this analysis, the Court held that lower courts must determine whether the firearm restriction is consistent with this Nation’s history and tradition by reasoning through analogy, which the Court notes is a “commonplace task for any lawyer or judge.” To provide further guidance, the Court stated that the historical analysis requires determining whether the historical regulation and the present-day regulation are “relevantly similar,” adding, “a green truck and a green hat are relevantly similar if one’s metric is ‘things that are green.’ They are not relevantly similar if the applicable metric is ‘things you can wear.’”

Notably, Bruen involved a challenge to a New York State statute that required an individual to show a “special need for self-protection distinguishable from that of the general community” in order to obtain a license to carry a handgun in public. While holding the New York statute unconstitutional, the Court provided no real guidance as to how this analysis would differ – if at all – when considering the §922(g) felon in possession statutes. To say this caused issues in the lower courts would be an understatement.

For instance, in U.S. v. Bullock, the United States District Court for the Southern District of Mississippi punched up at the Supreme Court, noting, “a serious disconnect between the legal and historical communities,” and stating “[t]his 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.” Likewise, in U.S. v. Holden, the Northern District of Indiana thought that Bruen left him no choice but to invalidate a portion of §922 unconstitutional, while noting “an earnest hope that its author has misunderstood [Bruen].” Even in the case of Bryan Range, a three-judge panel of the Third Circuit unanimously held that dispossessing him of a firearm is constitutional because while “modern-day regulation is not a dead ringer for historical precursors[,] . . . [it] may be analogous enough to pass constitutional muster,” before being overruled 11-4 by an en banc panel.

This brings us to the importance of Range. While the decision purports to do nothing more than to allow Bryan Range, a Pennsylvanian who served a probation sentence in the 1990s for lying to qualify for food stamps, to obtain a firearm, the implications of that decision are enormous. As stated by Judge Schwartz in dissent, “[t]oday, the Majority of our Court has decided that an individual convicted of fraud cannot be barred from possessing a firearm. While my colleagues state that their opinion is narrow, the analytical framework they have applied to reach their conclusion renders most, if not all, felon bans unconstitutional.”

The reason for this is in the details. The majority opinion held that “the Government did not carry its burden to provide a historical analogue to permanently disarm someone like Range, whether grounded in dangerousness or not.” Given that Bruen requires the government to point to a historical analogue to uphold any firearm restriction, the natural (and still open question) is whether a sufficient historical analogue exists for any crime requiring dispossession under §922(g). A close reading of the case would seem to suggest that no historical analogue exists for at least non-violent offenses, but exactly where this line may be drawn has yet to be decided.

According to the United States Sentencing Commission, 7,454 people were convicted of §922(g) offenses in 2021, and 96.9% of those convictions resulted in custodial sentences, many of which were lengthy terms of imprisonment. A great number of the approximately 20,000 – 30,000 people currently serving time in federal prison for §922(g) violations will surely file a writ of habeas corpus to challenge whether their crime of conviction is constitutional. If the answer to that question is no, the likely result is that those people will be released or (in the event of individuals who were convicted of multiple crimes at the same trial, including a §922(g) offense), will receive a new trial. The same is true of individuals serving in state prisons for violations of state analogues to §922(g).

Further, the decision will affect people like Range himself, whose sentences are behind them, but they are nonetheless prohibited from owning or possessing a firearm. While the number of individuals currently serving time for a §922(g) violation is in the tens of thousands, the number of people who have been stripped of their right to possess a firearm as a result of a criminal conviction (or in some instance because of a misdemeanor domestic violence conviction), could reach the low millions. Regardless of one’s personal beliefs on gun ownership, the potential impact of arming a million or more Americans is not negligible.

Ultimately, the Supreme Court will have to decide where the line between constitutional and unconstitutional lies. Justice Kavanaugh, joined by Chief Justice Roberts, seemed to anticipate this issue in their Bruen concurrence when they noted that felony-dispossession is “presumptively lawful.” Therefore, an escape hatch may exist for the Court to outright distinguish Bruen from felony dispossession cases by applying a different analysis. Still another option would be a clear rule that §922(g) is unconstitutional when applied to non-violent offenders, which would likely require finding some historical analogue to support the proposition that a certain indicia of dangerousness warrants dispossession.

Defining the bounds of constitutionality under the current test is no easy task. As when comparing green hats and green trucks, whether a historical regulation provides a relevant analogue to a present-day law will depend on the specifics of the comparison at hand. In the instance of §922(g), the Range majority decision references crimes as diverse as using profane language on the radio, returning out-of-state bottles or cans to a Michigan recycling center, and library theft of more than $150. It is a difficult to imagine the same historical proxy can be used to define the bounds of those crimes and the innumerable other acts that modern society criminalizes.

Range and Bruen make clear that policy has no place in Second Amendment jurisprudence and that history reigns supreme. While the implication of this line of cases has yet to be fully realized, many longstanding gun laws clearly rest on shaky constitutional ground, particularly those with no clear historical comparator. As we wait for the Supreme Court to clarify the nuances of the Bruen test as applied to a wider-range of gun laws, one thing is clear: legislators looking to regulate guns in a way that withstands constitutional scrutiny would be wise to consult The Pennsylvania Gazette or Poor Richard’s Almanack and not the current headlines.

David Rodkey is the former Managing Editor of JURIST and an Associate Attorney at the Philadelphia-based law firm Dilworth Paxson LLP. His practice areas are wide-ranging and include general commercial law, constitutional law, white-collar defense, and post-conviction relief. He was part of a two-person team that successfully obtained a compassionate release in United States v. Chi Fai Wong, which is believed to be the first case in US history where a federal court granted compassionate release to an individual serving life in prison.

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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

RANGE v. ATTORNEY GENERAL UNITED STATES (2022)

United States Court of Appeals, Third Circuit.

Bryan David RANGE, Appellant v. ATTORNEY GENERAL UNITED STATES of America; Regina Lombardo, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives

No. 21-2835

Decided: November 16, 2022

Before: SHWARTZ, KRAUSE and ROTH, Circuit Judges

Michael P. Gottlieb (ARGUED), Vangrossi & Recchuiti, 319 Swede Street, Norristown, PA 19401, Counsel for Appellant Kevin B. Soter (ARGUED), Mark B. Stern, United States Department of Justice, Civil Division, Room 7222, 950 Pennsylvania Avenue, NW, Washington, DC 20530, Counsel for Appellee Joseph G.S. Greenlee (ARGUED), Firearms Policy Coalition Action, 5550 Painted Mirage Road, Suite 320, Las Vegas, NV 89149, Counsel for Amicus Appellant

OPINION

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, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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, 128 S.Ct. 2783.

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, ––– U.S. ––––, 142 S. Ct. 2111, 213 L.Ed.2d 387 (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.

I. Factual and Procedural Background

In 1995, Range pleaded guilty to making false statements about his income to obtain $2,458 of food stamp assistance in violation of 62 Pa. Cons. Stat. § 481(a), a conviction that was then classified as a misdemeanor punishable by up to five years’ imprisonment.¹ Range was sentenced to three years’ probation, $2,458 in restitution, $288.29 in costs, and a $100 fine. He has paid the fine, costs, and restitution.

Congress has deemed it “unlawful for any person ․ who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year”—the definition of a felony under both federal law, 18 U.S.C. § 3156(a)(3), and traditional legal principles, see Felony, Black’s Law Dictionary (11th ed. 2019)—to “possess in or affecting commerce, any firearm or ammunition.”² 18 U.S.C. § 922(g)(1). In deference to state legislatures, Congress also raised the bar for “any State offense classified by the laws of the State as a misdemeanor” by excluding from the prohibition those misdemeanors “punishable by a term of imprisonment of two years or less.” Id. § 921(a)(20)(B).³ Put differently, it treated state misdemeanors punishable by more than two years’ imprisonment as felony-equivalent offenses. As the maximum punishment for Range’s offense was five years’ imprisonment, his conviction subjected him to § 922(g)(1).

Three years after his conviction, Range attempted to purchase a firearm but was “rejected by the instant background check system.” App. 46, 68, 203. Range’s wife subsequently bought him a deer-hunting rifle, and when that rifle was destroyed in a house fire, she bought him another.⁴ Sometime in 2010 or 2011, believing his first rejection was an error, Range again attempted to purchase a firearm. Again, he was rejected by the instant background check system. Several years after this rejection, Range “researched the matter” and learned that he was barred from purchasing and possessing firearms because of his welfare fraud conviction. App. 46, 205–06. Having “realize[d] that [he] was not allowed to possess a firearm,” he sold his deer hunting rifle to a firearms dealer. App. 201.

Range has hunted regularly for at least twenty years, most frequently using a bow or a muzzleloader. During the years that he possessed a deer hunting rifle, he routinely hunted with it on the first morning and the two Saturdays of each two-week season. He maintained a Pennsylvania hunting license at the time he filed his lawsuit and averred in deposition testimony that if not barred by § 922(g)(1), he would “for sure” purchase another hunting rifle and “maybe a shotgun” for self-defense in his own home. App. 46, 184, 197, 198, 200–02, 210.

In 2020, Range filed suit in the Eastern District of Pennsylvania, seeking a declaratory judgment that § 922(g) violates the Second Amendment as applied to him, as well as an injunction to bar its enforcement against him. Both Range and the Government moved for summary judgment. The District Court applied the two-step test that this Court adopted in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) and amplified in Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), which asks whether (1) a regulation burdens conduct protected by the right to keep and bear arms, and (2) if so, whether that regulation survives means-end scrutiny, id. at 346 (quoting Marzzarella, 614 F.3d at 89). Applying Binderup, the District Court concluded that Range’s challenge failed at step one because the Second Amendment does not protect “unvirtuous citizens,” including any person convicted of “a serious offense,” id. at 349, and Range’s offense qualified as serious under the factors we had identified. The District Court therefore granted the Government’s motion for summary judgment, and this appeal followed.

While Range’s appeal was pending, the Supreme Court issued Bruen, rejecting the means-end component of the second step of Marzzarella and Binderup and holding the first step was “broadly consistent with Heller” to the extent it focused on “the Second Amendment’s text, as informed by history.” 142 S. Ct. at 2127. The Government filed a letter pursuant to Federal Rule of Appellate Procedure 28(j), contending that Range’s Second Amendment challenge still must fail under Bruen’s framework. Range responded with his own Rule 28(j) letter, underscoring Bruen’s emphasis on history and asserting “there is no history in 1791 that given the facts of Mr. Range’s case that he would be disarmed and prevented from owning and possessing firearms.” Dkt. No. 41 at 2. The panel ordered supplemental briefing on (1) Bruen’s impact, if any, on the multifactor analysis developed in Binderup and Holloway v. Attorney General, 948 F.3d 164 (3d Cir. 2020); (2) whether Bruen shifts the burden to the Government to prove that the challenger is outside the scope of those entitled to Second Amendment rights, and whether the Government has met that burden here; and (3) whether we should remand this matter to the District Court.⁵

In supplemental briefing on the effect of Bruen, Range argues that the history and tradition of the Second Amendment demonstrates that only individuals with a dangerous propensity for violence, as opposed to peaceful citizens like him, can be disarmed. Amici filed a brief on Range’s behalf, echoing his contention that “[t]he historical tradition of disarming dangerous persons provides no justification for disarming Range.” Amicus Br. 26. The Government urges us to reject a narrow focus on dangerousness, reaffirm our holdings in Binderup and subsequent cases that the Second Amendment extends only to people considered “virtuous citizens,” and therefore hold that there is a longstanding tradition of disarming citizens who are not law-abiding.

With the benefit of Bruen, cases applying Bruen,⁶ and the parties’ briefing and arguments, we turn to the merits of Range’s appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We review the District Court’s order granting summary judgment de novo, see Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013), viewing the facts and making all reasonable inferences in the non-movant’s favor, see Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 266–67 (3d Cir. 2005). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party is entitled to judgment as a matter of law when the non-moving party fails to make “a sufficient showing on an essential element of her case with respect to which she has the burden of proof.”⁷ See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. Bruen’s Doctrinal Impact

Applying Bruen’s historical focus, we conclude § 922(g)(1) comports with legislatures’ longstanding authority and discretion to disarm citizens unwilling to obey the government and its laws, whether or not they had demonstrated a propensity for violence. We proceed in two parts. We begin by explaining how the Supreme Court replaced our two-step framework with a distinct test focused on the text and history of the Second Amendment. Next, we examine disarmament laws from the seventeenth to the nineteenth centuries to determine whether Range’s disarmament fits within the nation’s history and tradition of the right to keep and bear arms.

A. Post-Bruen Standard for Second Amendment Challenges

The Supreme Court’s decision in Bruen modifies our prior test for analyzing Second Amendment challenges to 18 U.S.C. § 922(g)(1).

Before Bruen, we analyzed Second Amendment challenges under a two-part test that was eventually adopted by most of our sister Circuits. Marzzarella, 614 F.3d at 89; see also Binderup, 836 F.3d at 346 (“Nearly every court of appeals has cited Marzzarella favorably.”). At the first step, we considered whether the challenged law burdened conduct within the scope of the Second Amendment. Marzzarella, 614 F.3d at 89. In examining this subject, we observed that “the right to bear arms was tied to the concept of a virtuous citizenry and that accordingly, the government could disarm ‘unvirtuous citizens[,]” including “any person who has committed a serious criminal offense, violent or nonviolent.”⁸ Binderup, 836 F.3d at 348 (quoting United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010)); see also Heller, 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783. If the first step was met, we proceeded to the second step and assessed whether the regulation withstood means-end scrutiny. Marzzarella, 614 F.3d at 89.

Bruen, however, abrogated Binderup’s two-step inquiry and directed the federal courts, in a single step, to look to the Second Amendment’s text and “the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2126, 2130; see also Frein v. Pa. State Police, 47 F.4th 247, 254, 256 (3d Cir. 2022) (recognizing Bruen abrogated our two-step framework).⁹ “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ” Bruen, 142 S. Ct. at 2126 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961)). Additionally, because “the Constitution presumptively protects [individual] conduct” covered by “the Second Amendment’s plain text,” the Court explained, the government has the burden of justifying its regulation of that conduct by demonstrating “not simply [ ] that the regulation promotes an important interest,” but that “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id.¹⁰

Under Bruen, the question is whether the regulation at issue is “relevantly similar” to regulations at the Founding. Id. at 2132 (quoting Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)). To make that determination, we must employ “analogical reasoning” and compare “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id. at 2132–33. Specifically, the government must “identify a well-established and representative historical analogue, not a historical twin.” Id. at 2133. “So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id.

Bruen does not preclude our review of Range’s appeal on the record before us. Bruen did not address the substantive issues that we must now determine. Unlike the open-carry licensing regime in Bruen that created a conduct-based constraint on public carry, § 922(g)(1) imposes a status-based restriction—namely, a possession ban on those convicted of crimes punishable by more than one year in prison or by more than two years in prison in the case of state law misdemeanors. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1443 (2009) (distinguishing between “what,” “who,” “where,” “how,” and “when” firearm restrictions). Despite that difference, Bruen still requires us to assess whether the Government has demonstrated through relevant historical analogues that § 922(g)(1) “is consistent with this Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2134. As set forth below, the historical record shows that legislatures had broad discretion to prohibit those who did not respect the law from having firearms. Our assessment confirms that individuals like Range, who commit felonies and felony-equivalent offenses, are not part of “the people” whom the Second Amendment protects. Therefore, § 922(g)(1) as applied to Range is constitutional under the Second Amendment.

B. Scope of Second Amendment Rights in Historical Perspective

As instructed by Bruen, we begin our analysis with the text of the Second Amendment, which protects “the right of the people to keep and bear Arms,” U.S. Const. amend. II, and consider if Range, as a felon equivalent under 18 U.S.C. § 921(a)(20)(B), is among those protected by the Amendment. Cf. Binderup, 836 F.3d at 357 (Hardiman, J., concurring in part) (“[T]he Founders understood that not everyone possessed Second Amendment rights. These appeals require us to decide who count among ‘the people’ entitled to keep and bear arms.”); United States v. Quiroz, No. 22-CR-00104, ––– F.Supp.3d ––––, ––––, 2022 WL 4352482, at *10 (W.D. Tex. Sept. 19, 2022) (explaining “this Nation does have a historical tradition of excluding specific groups from the rights and powers reserved to ‘the people’ ”).

The language of Bruen provides three insights into pertinent limits on “the people” whom the Second Amendment protects. First, the majority characterized the holders of Second Amendment rights as “law-abiding” citizens no fewer than fourteen times. Bruen, 142 S. Ct. at 2122, 2125, 2131, 2133–34, 2135 n.8, 2138 & n.9, 2150, 2156; accord Heller, 554 U.S. at 625, 635, 128 S.Ct. 2783. These included its holding that the New York statute “violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms,” Bruen, 142 S. Ct. at 2156, its explanation that the Second Amendment “ ‘elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense,” id. at 2131 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783), and its instruction to identify historical analogues to modern firearm regulations by assessing “how and why the regulations burden a law-abiding citizen’s right to armed self-defense,” id. at 2133.¹¹ The Court also quoted nineteenth-century sources extending the right to keep and bear arms to “all loyal and well-disposed inhabitants,” and disarming any person who made “an improper or dangerous use of weapons.” Id. at 2152 (emphasis added) (quoting Cong. Globe, 39th Cong., 1st Sess., at 908–909; and Circular No. 5, Freedmen’s Bureau, Dec. 22, 1865).

Second, the Court clarified that, despite the infirmity of New York’s discretionary may-issue permitting regime, “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes ․ [,] which often require applicants to undergo a [criminal] background check” and “are designed to ensure only that those bearing arms in the jurisdiction are, in fact ‘law-abiding, responsible citizens.’ ” Id. at 2138 n.9 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783). These criminal background checks that the Court indicated are constitutional are not limited to violent offenses; shall-issue statutes typically disqualify any person “prohibited from possessing a firearm under federal law.” Wash. Rev. Code Ann. § 9.41.070(1)(a) (2021); accord Colo. Rev. Stat. Ann. § 18-12-203(1)(c) (2021); Kan. Stat. Ann. § 75-7c04(a)(2) (2021); Miss. Code. Ann. § 45-9-101(2)(d) (2022); N.H. Rev. Stat. Ann. § 159:6(I)(a) (2021); N.C. Gen. Stat. Ann. § 14-415.12(b)(1) (2022).

Third, neither Bruen nor either of the Court’s earlier explanations of the individual right to keep and bear arms casts doubt on § 922(g)(1). To the contrary, Justice Scalia’s majority opinion in Heller twice described “prohibitions on the possession of firearms by felons” as both “longstanding” and “presumptively lawful[.]” 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783.¹² Writing for the McDonald plurality, Justice Alito “repeat[ed] those assurances.” 561 U.S. at 786, 130 S.Ct. 3020. In Bruen, Justice Thomas’s majority opinion acknowledged that the right to keep and bear arms is “subject to certain reasonable, well-defined restrictions,” Bruen, 142 S. Ct. at 2156 (citing Heller, 554 U.S. at 581, 128 S.Ct. 2783), and the concurrences by Justices Alito and Kavanaugh, the latter joined by the Chief Justice, echoed the Court’s assertions in Heller and McDonald. Id. at 2162 (Kavanaugh, J., concurring) (quoting Heller, 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783); id. at 2157 (Alito, J., concurring); see also United States v. Coombes, No. 22-CR-00189, ––– F.Supp.3d ––––, ––––, 2022 WL 4367056, at *9 (N.D. Okla. Sept. 21, 2022) (“[T]he Bruen majority did not abrogate its prior statements in Heller and McDonald.”).

Thus, although the Supreme Court has not provided an “exhaustive historical analysis ․ of the full scope of the Second Amendment,” Bruen, 142 S. Ct. at 2128; Heller, 554 U.S. at 626, 128 S.Ct. 2783, Heller, McDonald, and Bruen provide a window into the Court’s view of the status-based disarmament of criminals: that this group falls outside “the people”—whether or not their crimes involved violence—and that § 922(g)(1) is well-rooted in the nation’s history and tradition of firearm regulation.¹³

Our Court’s own review of the historical record supports the Supreme Court’s understanding: Those whose criminal records evince disrespect for the law are outside the community of law-abiding citizens entitled to keep and bear arms.¹⁴ Our previous decisions, endorsed by several sister courts of appeals, have expressed a related view in terms of the theory of “civic virtue.”¹⁵ See, e.g., Folajtar v. Att’y Gen., 980 F.3d 897, 902 (3d Cir. 2020); Binderup, 836 F.3d at 348; United States v. Carpio-Leon, 701 F.3d 974, 979–80 (4th Cir. 2012); United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010); United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010). Moreover, as detailed below, the pertinent historical periods were replete with laws “relevantly similar” to the modern prohibition on felon firearm possession because they categorically disqualified people from possessing firearms based on a judgment that certain individuals were untrustworthy parties to the nation’s social compact.¹⁶

The Bruen Court warned that “not all history is created equal” and catalogued the sources that are most probative of the right’s original meaning. 142 S. Ct. at 2136. Emphasizing that the right codified in the Second Amendment was a “pre-existing right,” the Court saw particular relevance in “English history dating from the late 1600s, along with American colonial views leading up to the founding.” Id. at 2127 (citing Heller, 554 U.S. at 595, 128 S.Ct. 2783).¹⁷ The Court made this same point in Heller. 554 U.S. at 592, 128 S.Ct. 2783. The Bruen Court also found highly relevant post-ratification practices from the late eighteenth and early nineteenth centuries. See Bruen, 142 S. Ct. at 2136. In contrast, although the Court considered history from Reconstruction to the late nineteenth century, it underscored that it did so merely to confirm its conclusions and that evidence from this period is less informative. See id. at 2137.

1. England’s Restoration and Glorious Revolution

We begin with the late seventeenth century, when the English government repeatedly disarmed individuals whose conduct indicated a disrespect for the sovereign and its dictates. Also, the advent of the English Bill of Rights during this period confirmed Parliament’s authority to delineate which members of the community could “have arms ․ by Law.” 1 W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689).

In the contentious period following the English Civil War, the restored Stuart monarchs disarmed nonconformist (i.e., non-Anglican) Protestants. See Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 45 (1994) (describing how Charles II “totally disarmed ․ religious dissenters”); Amicus Br. 6 (“Leading up to the Glorious Revolution of 1688, ․ nonAnglican [sic] Protestants were often disarmed.”). The reason the Crown seized nonconformists’ weapons, according to Amici, is that non-Anglican Protestants were dangerous. But the notion that every disarmed nonconformist was dangerous defies common sense. Moreover, Amici’s resort to dangerousness as the sole explanation for this measure ignores Anglicans’ well-documented concern that nonconformists would not obey the King and abide by the law.

By definition, nonconformists refused to participate in the Church of England, an institution headed by the King as a matter of English law. See Church of England, BBC (June 30, 2011), https://www.bbc.co.uk/religion/religions/christianity/cofe/cofe_1.shtml (describing “the Act of Supremacy” enacted during the reign of Henry VIII). Indeed, many refused to take mandatory oaths recognizing the King’s sovereign authority over matters of religion. See Frederick B. Jonassen, “So Help Me?”: Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath, 12 Cardozo Pub. L., Pol’y & Ethics J. 303, 322 (2014) (describing Charles II’s reinstation of the Oath of Supremacy); Caroline Robbins, Selden’s Pills: State Oaths in England, 1558–1714, 35 Huntington Lib. Q. 303, 314–15 (1972) (discussing nonconformists’ refusal to take such oaths). Anglicans, in turn, accused nonconformists of believing that their faith exempted them from obedience to the law. See Christopher Haigh, ‘Theological Wars’: ‘Socinians’ v. ‘Antinomians’ in Restoration England, 67 J. Ecclesiastical Hist. 325, 326, 334 (2016). In short, the historical record suggests nonconformists as a group were disarmed because their religious status was viewed as a proxy for disobedience to the Crown’s sovereign authority and disrespect for the law, placing them outside the civic community of law-abiding citizens.

Even when Protestants’ right to keep arms was restored, it was expressly made subject to the discretion of Parliament. One year after the Glorious Revolution of 1688 replaced the Catholic King James II with William of Orange and Mary, James’s Protestant daughter, see Alice Ristroph, The Second Amendment in a Carceral State, 116 Nw. U. L. Rev. 203, 228 (2021), Parliament enacted the English Bill of Rights, which declared: “Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law,” 1 W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689) (emphasis added). Thus, this declaration, which the Supreme Court has described as the “predecessor to our Second Amendment,” Bruen, 142 S. Ct. at 2141 (quoting Heller, 554 U.S. at 593, 128 S.Ct. 2783), reveals the “historical understanding,” id. at 2131, that the legislature—Parliament—had the power and discretion to determine who was sufficiently loyal and law-abiding to exercise the right to bear arms. Cf. Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27, 47–48 (2000) (explaining how the English Bill of Rights preserved Parliament’s authority to limit who could bear arms).

In 1689, Parliament enacted a status-based restriction forbidding Catholics who refused to take an oath renouncing their faith from owning firearms, except as necessary for self-defense. An Act for the Better Securing the Government by Disarming Papists and Reputed Papists, 1 W. & M., Sess. 1, ch. 15 (Eng. 1688); see Malcolm, supra, at 123. Proponents of the view that disarmament depended exclusively on dangerousness have argued that Catholics categorically posed a threat of violence at this time. See Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting); C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 723 (2009). Again, however, this interpretation not only rests on the implausible premise that all Catholics were violent, but also ignores the more likely historical reason for disarming this entire group: their perceived disrespect for and disobedience to the Crown and English law. That is manifest in the statute’s oath requirement. When individuals swore that they rejected the tenets of Catholicism, their right to own weapons was restored. An Act for the Better Securing the Government by Disarming Papists and Reputed Papists, 1 W. & M., Sess. 1, ch. 15 (Eng. 1688).

Disavowal of religious tenets hardly demonstrated that the swearing individual no longer had the capacity to commit violence; rather, the oath was a gesture of allegiance to the English government and an assurance of conformity to its laws. Likewise, contemporaneous arguments against tolerating Catholicism contended that Catholics’ faith subverted the rule of law by placing the dictates of a “foreign power,” i.e., the Pope, before English legal commands. See Diego Lucci, John Locke on Atheism, Catholicism, Antinomianism, and Deism, 20 Etica & Politica/Ethics & Pol. 201, 228–29 (2018). The disarmament of Catholics in 1689 thus provides another example of the seizure of weapons from individuals whose status demonstrated, not a proclivity for violence, but rather a disregard for the legally binding decrees of the sovereign.

2. Colonial America

The earliest firearm legislation in colonial America prohibited Native Americans, Black people, and indentured servants from owning firearms.¹⁸ See Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794, 16 Law & Hist. Rev. 567, 578–79 (1998). Amici contend that these restrictions affected individuals outside the political community and so cannot serve as analogues to contemporary restraints on citizens like Range. Amicus Br. 30–31; see also Carpio-Leon, 701 F.3d at 978 n.1 (concluding such individuals may not have been part of “the people” at the Founding). But even accepting Amici’s argument, colonial history furnishes numerous examples in which full-fledged members of the political community as it then existed—i.e., free, Christian, white men—were disarmed due to conduct evincing inadequate faithfulness to the sovereign and its laws.

During the late 1630s, for example, an outspoken preacher in Boston named Anne Hutchinson challenged the Massachusetts Bay government’s authority over spiritual matters and instead advocated personal relationships with the divine. See Edmund S. Morgan, The Case Against Anne Hutchinson, 10 New Eng. Q. 635, 637–38, 644 (1937). Governor John Winthrop accused Hutchinson and her followers of being Antinomians, those who viewed their salvation as exempting them from the law, and banished her. Id. at 648; Ann Fairfax Withington & Jack Schwartz, The Political Trial of Anne Hutchinson, 51 New Eng. Q. 226, 226 (1978). The colonial government also disarmed at least fifty-eight of Hutchinson’s supporters, not because those supporters had demonstrated a propensity for violence, but “to embarrass the offenders,” as they were forced to personally deliver their arms to the authorities in an act of public submission. James F. Cooper, Jr., Anne Hutchinson and the “Lay Rebellion” Against the Clergy, 61 New Eng. Q. 381, 391 (1988). Disarming Hutchinson’s supporters, in other words, served to shame colonists whose disavowal of the rule of law placed them outside the Puritan’s civic community and obedience to the commands of the government. Cf. John Felipe Acevedo, Dignity Takings in the Criminal Law of Seventeenth-Century England and the Massachusetts Bay Colony, 92 Chi.-Kent L. Rev. 743, 761 (2017) (describing other shaming punishments used at the time, including scarlet letters).

Likewise, Catholics in the American colonies (as in Britain) were subject to disarmament without demonstrating a proclivity for violence. It is telling that, notwithstanding Maryland’s genesis as a haven for persecuted English Catholics, see Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1424 (1990), Maryland—as well as Virginia and Pennsylvania—confiscated firearms from their Catholic residents during the Seven Years’ War, see Bellesiles, supra, at 574; Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 263 (2020). That decision was not in response to violence; to the contrary, Catholics had remained peaceable even when the colony’s Anglican Protestants took control of its government and required Catholics to take oaths recognizing the legal authority of the Crown, rather than the Pope, over matters of religion. See Michael Graham, S.J., Popish Plots: Protestant Fears in Early Colonial Maryland, 1676–1689, 79 Cath. Hist. Rev. 197, 197 (1993) (“[L]ittle sustained opposition to [the Anglican leadership] crystallized within the colony. What the Protestant Associators had done ․ was widely accepted.”); Denis M. Moran, Anti-Catholicism in Early Maryland Politics: The Protestant Revolution, 61 Am. Cath. Hist. Soc’y 213, 235 (1950) (explaining how the oaths “asserted the king’s supremacy in spiritual as well as in temporal matters”). In sum, Protestants in the colonies—as in England—disarmed Catholics not because they uniformly posed a threat of armed resistance, but rather because the Protestant majorities in those colonies viewed Catholics as defying sovereign authority and communal values.

3. Revolutionary War

Revolutionary-era history furnishes other examples of legislatures disarming non-violent individuals because their actions evinced an unwillingness to comply with the legal norms of the nascent social compact.¹⁹

John Locke—whose views profoundly influenced the American revolutionaries ²⁰ —argued that the replacement of individual judgments of what behavior is transgressive with communal norms is an essential characteristic of the social contract. See John Locke, Two Treatises of Government § 163 (Thomas I. Cook, ed., Hafner Press 1947) (reasoning “there only is political society where every one of the members hath quitted his natural power [to judge transgressions and] resigned it up into the hands of the community”). Members of a social compact, he explained, have a civic obligation to comply with communal judgments regarding proper behavior.²¹

In the newly proclaimed states, compliance with that civic obligation translated to entitlement to keep and bear arms, with many of the newly independent states enacting statutes that required individuals, as a condition of keeping their arms, to commit to the incipient social compact by swearing fidelity to the revolutionary regime.²² See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 158 (2007).

In Connecticut, for example, as hostilities with Britain worsened, colonists denounced loyalists’ dereliction of their duties to the civic community. The people of Coventry passed a resolution in 1774 stating loyalists were “unworthy of that friendship and esteem which constitutes the bond of social happiness, and ought to be treated with contempt and total neglect.” G.A. Gilbert, The Connecticut Loyalists, 4 Am. Hist. Rev. 273, 280 (1899) (describing this resolution as “a fair sample of most of the others passed at this time”). “Committees of Inspection” publicized the names and addresses of suspected loyalists in local newspapers, describing them as “persons held up to public view as enemies to their country,” id. at 280–81, and in 1775, this stigmatization of individuals suspected of infidelity to the inchoate United States culminated in a statute prohibiting anyone who defamed resolutions of the Continental Congress from keeping arms, voting, or serving as a civil official, see id. at 282.

Pennsylvania likewise disarmed non-violent individuals who were unwilling to abide by the newly sovereign state’s legal norms. The legislature enacted a statute in 1777 requiring all white male inhabitants above the age of eighteen to swear to “be faithful and bear true allegiance to the commonwealth of Pennsylvania as a free and independent state,” Act of June 13, 1777, § 1 (1777), 9 The Statutes at Large of Pennsylvania from 1652–1801 110, 111 (William Stanley Ray ed., 1903), and providing that those who failed to take the oath—without regard to dangerousness or propensity for physical violence—“shall be disarmed” by the local authorities, id. at 112–13, § 3.

This statute is particularly instructive because Pennsylvania’s 1776 state constitution protected the people’s right to bear arms. See Cornell, Don’t Know Much About History, supra, at 670–71; Marshall, supra, at 724. Yet Pennsylvania’s loyalty oath law deprived sizable numbers of pacifists of that right because oath-taking violated the religious convictions of Quakers, Mennonites, Moravians, and other groups. Jim Wedeking, Quaker State: Pennsylvania’s Guide to Reducing the Friction for Religious Outsiders Under the Establishment Clause, 2 N.Y.U. J.L. & Liberty 28, 51 (2006); see also Thomas C. McHugh, Moravian Opposition to the Pennsylvania Test Acts, 1777 to 1789, at 49–50 (Sept. 7, 1965) (M.A. thesis, Lehigh University) (on file with the Leigh Preserve Institutional Repository). So while Amici contend that individuals disarmed under loyalty oath statutes “posed a grave danger and were often violent,” Amicus Br. 12, Pennsylvania’s disarmament of this sizable portion of the state’s populace cannot be explained on that ground. See Heller, 554 U.S. at 590, 128 S.Ct. 2783 (“Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever․”); cf. Folajtar, 980 F.3d at 908 n.11 (explaining “[r]efusing to swear an oath” does not “qualify as dangerous”).

Instead, the Pennsylvania legislature forbade Quakers and other religious minorities from keeping arms because their refusal to swear allegiance demonstrated that they would not submit to communal judgments embodied in law when it conflicted with personal conviction. See Wedeking, supra, at 51–52 (describing how Quakers were “penal[ized] for allegiance to their religious scruples over the new government”). The act, in other words, was “an effort by Pennsylvania’s Constitutionalist party to restrictively define citizenship”—i.e., what eventually became “the people”—“to those capable of displaying the requisite virtue.” Cornell, Don’t Know Much About History, supra, at 671.

Exercising its broad authority to disarm individuals who disrespected the rule of law, Virginia’s General Assembly also passed a loyalty oath statute in 1777. An Act to Oblige the Free Male Inhabitants of this State Above a Certain Age to Give Assurance of Allegiances to the Same, and for Other Purposes ch. III (1777), 9 Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature in the Year 1619 281, 281 (William W. Hening ed., 1821). That law disarmed “all free born male inhabitants of this state, above the age of sixteen years, except imported servants during the time of their service” who refused to swear their “allegiance and fidelity” to the state. Id. But these individuals could not have been considered dangerous spies or threats of violence: the statute still required disarmed individuals to attend militia trainings and run drills without weapons, id. at 282—an indignity previously inflicted upon free Black men, Churchill, supra, at 160. Instead, this use of disarmament as a method of public humiliation reveals the statute’s true social function: distinguishing those unwilling to follow the dictates of the new government from law-abiding members of the civic community.

In sum, the “how and why,” Bruen, 142 S. Ct. at 2133, of these oath statutes’ burden on the right to bear arms teaches us two things about the historical understanding of status-based prohibitions. First, in keeping with Locke’s view that compliance with communal judgment is an inextricable feature of political society, these laws “defined membership of the body politic” by disarming individuals whose refusal to take these oaths evinced not necessarily a propensity for violence, but rather a disrespect for the rule of law and the norms of the civic community. Churchill, supra, at 158. Second, legislatures were understood to have the authority and broad discretion to decide when disobedience with the law was sufficiently grave to exclude even a non-violent offender from the people entitled to keep and bear arms. Cf. Dru Stevenson, In Defense of Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573, 1586 (2022) (“[T]he founders thought the legislature should decide which groups pose a threat to the social order or the community.”).

4. Ratification Debates

The ensuing deliberations over whether to ratify the Constitution similarly illustrate the Founding generation’s understanding of legislatures’ power and discretion over disarmament of those not considered law-abiding.

In Pennsylvania, debates between the Federalists and Anti-Federalists “were among the most influential and widely distributed of any essays published during ratification.” Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 Const. Comment. 221, 227 (1999). Those essays included “The Dissent of the Minority,” which was published by the state’s Anti-Federalist delegates, id. at 232–33, and which the Supreme Court has viewed as “highly influential” to the adoption of the Second Amendment, Heller, 554 U.S. at 604, 128 S.Ct. 2783. The amendment proposed by the Dissent of the Minority stated:

[T]he people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.

2 Bernard Schwartz, The Bill of Rights: A Documentary History 665 (1971) (emphasis added).

As the Dissent of the Minority’s proposal makes clear, members of the Founding generation viewed “[c]rimes committed—violent or not—[as] ․ an independent ground for exclusion from the right to keep and bear arms.” Binderup, 836 F.3d at 349 (quotation omitted); see also Folajtar, 980 F.3d at 908–09. Amici insist that the proposal’s crime and danger clauses must be read together as authorizing the disarmament of dangerous criminals only. See Amicus Br. 16; see also Greenlee, supra at 267; Binderup, 836 F.3d at 367 (Hardiman, J., concurring in part). But the Dissent of the Minority’s use of the disjunctive “or” refutes this counterargument: The dissenters distinguished between criminal convictions and dangerousness, and provided that either could support disarmament. See, e.g., United States v. Woods, 571 U.S. 31, 45–46, 134 S.Ct. 557, 187 L.Ed.2d 472 (2013) (explaining the “ordinary use” of “or” “is almost always disjunctive”—i.e., “the words that it connects are to ‘be given separate meanings’ ”) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979)).

The Dissent of the Minority therefore comports with the longstanding tradition in English and American law of disarming even non-violent individuals whose actions demonstrated a disrespect for the rule of law as embodied in the sovereign’s binding norms.

5. Other Non-Violent Offenses

Punishments meted out for a variety of non-violent offenses between the seventeenth and nineteenth centuries provide additional support for legislatures’ authority to disarm even non-violent offenders.

Historically, several non-violent felonies were punishable by death and forfeiture of the perpetrator’s entire estate. See Folajtar, 980 F.3d at 904–05. As the Government observes, those offenses included larceny, repeated forgery, and false pretenses—all of which involve deceit or the wrongful deprivation of another’s property and closely resemble Range’s welfare fraud offense. Appellees’ Supp. Br. 7–8.²³ A fortiori, given the draconian punishments that traditionally could be imposed for these types of non-violent felonies, the comparatively lenient consequence of disarmament under 18 U.S.C. § 922(g)(1) is permissible.²⁴

Additionally, legislatures in the American colonies and United States authorized the seizure of firearms from individuals who committed non-violent, misdemeanor hunting offenses.²⁵ In 1652, New Netherlands passed an ordinance that forbid “firing within the jurisdiction of this city [of New Amsterdam] or about the Fort, with any guns at Partridges or other Game that may by chance fly within the city, on pain of forfeiting the Gun ․” 1652 N.Y. Laws 138. A 1745 North Carolina law prohibited nonresidents from hunting deer in “the King’s Wast” and stated that any violator “shall forfeit his gun” to the authorities. Act of Apr. 20, ch. III (1745), 23 Acts of the North Carolina General Assembly 218, 219 (1805). New Jersey enacted a statute “for the preservation of deer, and other game” in 1771 that punished non-residents caught trespassing with a firearm by seizing the individuals’ guns. 1771 N.J. Laws 19–20.

State legislatures continued to enact such laws after the Revolution. To protect the sheep of Naushon Island, Massachusetts passed a statute requiring armed trespassers on the island to forfeit their guns.²⁶ An Act for the Protection and Security of the Sheep and Other Stock on Tarpaulin Cove Island, Otherwise Called Naushon Island, and on Nennemessett Island, and Several Small Islands Contiguous, Situated in the County of Dukes County § 2 (1790), 1 Private and Special Statutes of the Commonwealth of Massachusetts 258, 259 (Manning & Loring ed., 1805). Virginia and Maryland punished individuals who hunted wild fowl on rivers at night by seizing their guns. 1832 Va. Acts 70; 1838 Md. Laws 291–92. And Delaware law required non-residents who hunted wild geese on the state’s waterways to forfeit their guns, even though the statute specified that this hunting offense was a misdemeanor. 12 Del. Laws 365 (1863).

As these centuries of hunting statutes show, legislatures repeatedly exercised their authority to decide when non-violent offenses were sufficiently grave transgressions to justify limiting violators’ ability to keep and bear arms.²⁷

* * * * *

We draw three critical lessons from the historical record examined above. First, legislatures traditionally used status-based restrictions to disqualify categories of persons from possessing firearms. Second, they did so not merely based on an individual’s demonstrated propensity for violence, but rather to address the threat purportedly posed by entire categories of people to an orderly society and compliance with its legal norms. Third, legislatures had, as a matter of separated powers, both authority and broad discretion to determine when individuals’ status or conduct evinced such a threat sufficient to warrant disarmament.²⁸

IV. Range’s Claims

Having identified the appropriate test and reviewed the historical evidence in this area, we now turn to Range’s claims.

Range committed an offense that Pennsylvania has classified as a misdemeanor punishable by more than two years’ imprisonment, 62 Pa. Cons. Stat. § 481(a), and Congress has concluded is sufficiently serious to exclude Range from the body of law-abiding, responsible citizens entitled to keep and bear arms, see 18 U.S.C. §§ 921(a)(20)(B), 922(g)(1).²⁹ That determination fits comfortably within the longstanding tradition of legislation disarming individuals whose actions evince a disrespect for the rule of law. Interpreting the text of the Second Amendment in light of the right’s “historical background,” Bruen, 142 S. Ct. at 2127 (quoting Heller, 554 U.S. at 592, 128 S.Ct. 2783), we conclude that Range’s criminal conviction placed him beyond the ambit of “the people” protected by the Second Amendment.

Range asserts that “[t]he Government has failed to meet its burden of proving that the plaintiff’s conviction places him outside the scope of those entitled to Second Amendment rights based on the historical analysis of those who can be disarmed.”³⁰ Appellant’s Supp. Br. 1. Notwithstanding the historical evidence surveyed above, Range contends that his disarmament is inconsistent with the nation’s tradition of firearm regulation “because he is not dangerous.” Opening Br. 28. Echoing positions expressed by some judges, Amici agree, arguing “English and American tradition support firearm prohibitions on dangerous persons” but “[t]here is no tradition of disarming peaceable citizens.” Amicus Br. 2; see Folajtar, 980 F.3d at 912 (Bibas, J., dissenting); Kanter, 919 F.3d at 451 (Barrett, J., dissenting); Binderup, 836 F.3d at 369 (Hardiman, J., concurring in part). Our review of the historical record convinces us otherwise. Non-violent individuals were repeatedly disarmed between the seventeenth and nineteenth centuries because legislatures determined that those individuals lacked respect for the rule of law and thus fell outside the community of law-abiding citizens. That longstanding tradition refutes Range’s constrictive account of Anglo-American history as prohibiting the government from disarming non-violent individuals.

Amici offer a few statutes that purportedly prove legislatures’ inability to disarm non-violent offenders, but these laws confirm our view. Specifically, Amici cite a 1785 Massachusetts law that forbid tax collectors and sheriffs from embezzling tax revenue. Amicus Br. 32 (citing 1785 Mass. Laws 516).³¹ Although the statute permitted estate sales to recover embezzled funds, “the necessities of life—including firearms—could not be sold.” Id. Likewise, Amici discuss a 1650 Connecticut law exempting weapons from execution in civil actions and four statutes providing similar protections for militia arms. Id. at 33 (citing The Public Records of the Colony of Connecticut, Prior to the Union with New Haven Colony, May 1665, at 537 (J. Hammond Trumbull ed., 1850); 1 Stat. 271, § 1 (1792); Archives of Maryland Proceedings and Acts of the General Assembly of Maryland, at 557 (William Hand Browne ed., 1894); An Act for Settling the Militia ch. XXIV (1705), 3 Statutes at Large: Being a Collection of all the Laws of Virginia from the First Session of the Legislature, in the Year 1619 335, 339 (William W. Hening ed., 1823); An Act for the Settling and Better Regulation of the Militia ch. II (1723), 4 Statutes at Large: Being a Collection of all the Laws of Virginia from the First Session of the Legislature, in the Year 1619 118, 121 (William W. Hening ed., 1820). But Amici place more weight on those laws than they can rightly bear. The fact that legislatures did not always exercise their authority to seize the arms of individuals who violated the law does not show that legislatures never could do so. Rather, these laws underscore legislatures’ power and discretion to determine when disarmament is warranted. And, as detailed above, Range and Amici’s contention that legislatures lacked the authority to disarm non-violent individuals “flatly misreads the historical record.” Heller, 554 U.S. at 603, 128 S.Ct. 2783.

We believe the Supreme Court’s repeated characterization of Second Amendment rights as belonging to “law-abiding” citizens supports our conclusion that individuals convicted of felony-equivalent crimes, like Range, fall outside “the people” entitled to keep and bear arms.³² See, e.g., Bruen, 142 S. Ct. at 2122; Heller, 554 U.S. at 635, 128 S.Ct. 2783. As Judge Hardiman explained in his Binderup concurrence, Second Amendment challenges to § 922(g)(1) “require us to decide who count among ‘the people’ entitled to keep and bear arms” because “the Founders understood that not everyone possessed Second Amendment rights.” 836 F.3d at 357 (Hardiman, J., concurring in part); see also Oral Arg. at 49:54 (Amici discussing which individuals fall outside “the people”). Focusing our inquiry on the meaning of “the people” also comports with the Lockean principles that animated Founding-era disarmaments of individuals whose unwillingness to abide by communal norms placed them outside political society. Cf. Heller, 554 U.S. at 580, 128 S.Ct. 2783 (suggesting “the people” refers to “all members of the political community” (emphasis added)); Cornell, Don’t Know Much About History, supra, at 671 (contending the right to keep and bear arms was historically “limited to those members of the polity who were deemed capable of exercising it in a virtuous manner”).

But even if we were to adopt the contrary view, treating Range as covered by “the Second Amendment’s plain text[,]” Bruen, 142 S. Ct. at 2126, would “yield the same result,” Kanter, 919 F.3d at 452 (Barrett, J., dissenting). Bruen requires the Government to (1) provide relevant historical analogues demonstrating a traditional basis for disarming those who commit felonies and felony-equivalent crimes, and (2) show that the challenger was convicted of a felony or felony-equivalent offense. Cf. Charles, No. 22-CR-154, ––– F.Supp.3d at ––––, 2022 WL 4913900, at *9 (“[R]eading Bruen robotically would require the Government in an as-applied challenge[ ] to find an analogy specific to the crime charged․ That’s absurd.”).

The Government has satisfied its burden on both prongs. First, as discussed above, our Nation’s tradition of firearm regulation permits the disarmament of those who committed felony or felony-equivalent offenses. See Holloway, 948 F.3d at 172 (“We ‘presume the judgment of the legislature is correct and treat any crime subject to § 922(g)(1) as disqualifying unless there is a strong reason to do otherwise.’ ” (quoting Binderup, 836 F.3d at 351)). The Government has established as much through its detailed discussion of our pre-Bruen jurisprudence concerning the “the historical justification for stripping felons [of Second Amendment rights], including those convicted of offenses meeting the traditional definition of a felony.” Appellees’ Supp. Br. 2–3, 7 (quoting Binderup, 836 F. 3d at 348); see also Answering Br. 11–12.

The Government has also shown that Range was convicted of a felony or felony-equivalent offense. Range pleaded guilty to welfare fraud in violation of 62 Pa. Cons. Stat. § 481(a), a misdemeanor punishable by up to five years’ imprisonment. Range’s conviction therefore qualifies as a felony-equivalent offense under both federal law, 18 U.S.C. § 921(a)(20)(B), and traditional legal principles, see Felony, Black’s Law Dictionary (11th ed. 2019). Accordingly, Range may be disarmed consistent with the Second Amendment. See Answering Br. at 16 (citing Hamilton v. Pallozzi, 848 F.3d 614, 627 (4th Cir. 2017))

V. Conclusion

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.

For the above reasons, we will affirm the judgment of the District Court.

FOOTNOTES

FOOTNOTE.

1. In 2018, Pennsylvania amended § 481(b) so that welfare fraud involving “$1,000 or more” in fraudulently obtained assistance became a “[f]elony of the third degree.” 62 Pa. Cons. Stat. § 481(b) (2018). However, the parties agree that the offense’s categorization at the time of Range’s guilty plea controls for purposes of our analysis.

2. Congress exercised its discretion to exclude certain categories of offenses from this ban, such as “antitrust violations, unfair trade practices, restraints of trade, or other similar offenses[.]” 18 U.S.C. § 921(a)(20)(A).

3. For ease of reference, we use the term “felony-equivalent” to refer to these misdemeanors. We do not address whether individuals convicted of misdemeanors carrying lesser punishments can be disarmed consistent with the Second Amendment.

4. A shotgun that Range’s father had given him as a teenager was also destroyed in the fire. After his father died in 2008, Range came into possession of his father’s pistol, but gave it away within a month.

5. The relevant factual record has been fully developed, and the appeal raises “purely legal questions upon which an appellate court exercises plenary review,” Comite’ De Apoyo A Los Trabajadores Agricolas v. Perez, 774 F.3d 173, 187 (3d Cir. 2014) (quoting Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 159 (3d Cir. 1998)), so we can apply Bruen and resolve this matter without remand, see Hudson, 142 F.3d at 159.

6. Although we appear to be the first Court of Appeals to address the constitutionality of 18 U.S.C. § 922(g)(1) since the Supreme Court decided Bruen, a number of district courts have done so. See United States v. Young, No. 22-CR-54, 2022 WL 16829260, at *11 (W.D. Pa. Nov. 7, 2022); United States v. Minter, No. 22-CR-135, 2022 WL 10662252, at *6–7 (M.D. Pa. Oct. 18, 2022); United States v. Trinidad, No. 21-CR-398, 2022 WL 10067519, at *3 (D.P.R. Oct. 17, 2022); United States v. Raheem, No. 20-CR-61, 2022 WL 10177684, at *3 (W.D. Ky. Oct. 17, 2022); United States v. Carrero, No. 22-CR-30, ––– F.Supp.3d ––––, ––––, 2022 WL 9348792, at *3 (D. Utah Oct. 14, 2022); United States v. Riley, No. 22-CR-163, ––– F.Supp.3d ––––, ––––, ––––, 2022 WL 7610264, at *10, *13 (E.D. Va. Oct. 13, 2022); United States v. Price, No. 22-CR-97, ––– F.Supp.3d ––––, ––––, 2022 WL 6968457, at *9 (S.D.W. Va. Oct. 12, 2022); United States v. Daniels, No. 3-CR-83, 2022 WL 5027574, at *4 (W.D.N.C. Oct. 4, 2022); United States v. Charles, No. 22-CR-154, ––– F.Supp.3d ––––, ––––, 2022 WL 4913900, at *11 (W.D. Tex. Oct. 3, 2022); United States v. Siddoway, No. 21-CR-205, 2022 WL 4482739, at *2 (D. Idaho Sept. 27, 2022); United States v. Collette, No. 22-CR-141, ––– F.Supp.3d ––––, ––––, 2022 WL 4476790, at *8 (W.D. Tex. Sept. 25, 2022); United States v. Coombes, No. 22-CR-189, ––– F.Supp.3d ––––, ––––, ––––, 2022 WL 4367056, at *8, *11 (N.D. Okla. Sept. 21, 2022); United States v. Hill, No. 21-CR-107, ––– F.Supp.3d ––––, ––––, 2022 WL 4361917, at *3 (S.D. Cal. Sept. 20, 2022); see also United States v. Ridgeway, No. 22-CR-175, 2022 WL 10198823, *2 (S.D. Cal. Oct. 17, 2022); United States v. Cockerham, No. 21-CR-6, 2022 WL 4229314, at *2 (S.D. Miss. Sept. 13, 2022); United States v. Jackson, No. CR 21-51, 2022 WL 4226229, at *3 (D. Minn. Sept. 13, 2022); United States v. Burrell, No. 21-20395, 2022 WL 4096865, at *3 (E.D. Mich. Sept. 7, 2022); United States v. Ingram, No. 18-CR-557, ––– F.Supp.3d ––––, ––––, 2022 WL 3691350, at *3 (D.S.C. Aug. 25, 2022).

7. While Range’s standing to bring this claim was not challenged by Government nor discussed by the District Court, “we have ‘an independent duty to satisfy ourselves of our jurisdiction ․’ ” Bedrosian v. IRS, 912 F.3d 144, 149 (3d Cir. 2018) (quoting Papotto v. Hartford Life & Acc. Ins. Co., 731 F.3d 265, 269 (3d Cir. 2013)). The party invoking federal jurisdiction must establish the three elements forming “the irreducible constitutional minimum of standing”: injury in fact, causation, and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “When an individual is subject to [threatened enforcement of a law], an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014). Here, Range met his burden by showing that the Government’s prohibition twice thwarted him from purchasing a firearm and by averring that he would purchase a hunting rifle but for § 922(g)(1). See Parker v. District of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) (“The formal process of application and denial, however routine, makes the injury to [the petitioner’s] alleged constitutional interest concrete and particular.”), aff’d sub nom. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); Dearth v. Holder, 641 F.3d 499, 503 (D.C. Cir. 2011) (affirming that the petitioner suffered a cognizable injury where “the federal regulatory scheme thwarts his continuing desire to purchase a firearm”).

8. On that point, Judge Ambro’s three-judge plurality in Binderup was joined by the seven judges who signed onto Judge Fuentes’s partial concurrence and partial dissent. See Binderup, 836 F.3d at 348–49; id. at 387, 389–90 (Fuentes, J., concurring in part). Judge Hardiman, joined by four other judges, concurred in part and concurred in the judgment. Id. at 357 (Hardiman, J., concurring in part). Judge Hardiman reasoned that under “traditional limitations on the right to keep and bear arms” legislatures could disarm only individuals with a “demonstrated proclivity for violence.” Id.; see also Folajtar v. Att’y Gen., 980 F.3d 897, 912 (3d Cir. 2020) (Bibas, J., dissenting) (stating that “the historical limits on the Second Amendment” permitted legislatures to disarm felons “only if they are dangerous”), cert. denied sub nom. Folajtar v. Garland, ––– U.S. ––––, 141 S. Ct. 2511, 209 L.Ed.2d 546 (2021).

9. Given Bruen’s focus on history and tradition, Binderup’s multifactored seriousness inquiry no longer applies. In the context of a challenge based upon the challenger’s status post-Binderup, Bruen requires consideration of whether there is a historical foundation for governmental restrictions on firearms possession based on the challenger’s specific status. If that status changes, then the law would no longer apply to that person. Thus, there is still room for “as-applied” challenges even after Bruen.

10. In Binderup, we had imposed the burden at step one on the challenger, rather than on the government, 836 F.3d at 347, but after Bruen, we note that the government must now meet this burden in the district court, see 142 S. Ct. at 2126 (citing United States v. Boyd, 999 F.3d 171, 185 (3d Cir. 2021)). Because Bruen came down after the Government made its case in the District Court, we look to its filings in the District Court as well as its supplemental briefs on Bruen’s impact to find that it has met its burden.

11. See also Bruen 142 S. Ct. at 2122 (“[T]he Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.”); id. (“[O]rdinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.”); id. at 2125 (explaining petitioners were “law-abiding, adult citizens”); id. at 2133 (describing New York’s argument that “sensitive places where the government may lawfully disarm law-abiding citizens include all places where people typically congregate” (quotations omitted)); id. at 2134 (reiterating that petitioners are “two ordinary, law-abiding, adult citizens”); id. at 2135 n.8 (“[I]n light of the text of the Second Amendment, along with the Nation’s history of firearm regulation, we conclude below that a State may not prevent law-abiding citizens from publicly carrying handguns because they have not demonstrated a special need for self-defense.”); id. at 2138 (“Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.”); id. at 2138 n.9 (noting shall-issue public carry licensing laws “do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry” but rather “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens” (quotation omitted)); id. at 2150 (observing “none [of the historical regulations surveyed] operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose”); id. at 2156 (“Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to demonstrate a special need for self-protection distinguishable from that of the general community in order to carry arms in public.” (quotations omitted)).

12. We note that Congress enacted the federal felon-in-possession statute in 1938 and extended it to non-violent offenses in 1961. See United States v. Booker, 644 F.3d 12, 24 (1st Cir. 2011); cf. Freedom from Religion Found., Inc. v. County of Lehigh, 933 F.3d 275, 283 (3d Cir. 2019) (describing a 75-year-old religious symbol as part of “our Nation’s public tradition” and therefore “entitled ․ to a ‘strong presumption of constitutionality’ ” under the First Amendment (quoting Am. Legion v. Am. Humanist Ass’n, ––– U.S. ––––, 139 S. Ct. 2067, 2085, 204 L.Ed.2d 452 (2019))). As explained below, however, the history and tradition of disarming those who have committed offenses demonstrating disrespect for the rule of law dates back to at least the seventeenth century.

13. It remains the case, of course, that the executive branch also has authority to impose firearms-related directives and regulations consistent with the history and tradition, e.g., in the form of executive orders or through ATF or local executive agencies.

14. By no means do we suggest that legislatures have carte blanche to disarm anyone who commits any crime. Rather, we decide only that the disarmament of individuals convicted of felony and felony-equivalent offenses comports with the Second Amendment.

15. Numerous works of legal scholarship have espoused the civic virtue theory of the Second Amendment. See, e.g., Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations, 60 Hastings L.J. 1339, 1360 (2008); Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 492 (2004); Saul Cornell, “Don’t Know Much About History”: The Current Crisis in Second Amendment Scholarship, 29 N. Ky. L. Rev. 657, 672 (2002) [hereinafter Cornell, Don’t Know Much About History]; David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 626 (2000); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995); Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 L. & Contemp. Probs. 143, 146 (1986); Anthony J. Zarillo III, Comment, Going off Half-Cocked: Opposing as-Applied Challenges to the “Felon-in-Possession” Prohibition of 18 U.S.C. § 922(g)(1), 126 Penn St. L. Rev. 211, 238 (2021). We concur with the civic virtue theory inasmuch as a person’s lack of virtue in the eyes of the community served as a proxy for willingness to disobey the law.

16. See Folajtar, 980 F.3d at 911 (“Legislatures have always regulated the right to bear arms.”).

17. When assessing Founding-era precedents, we must assume they derive from a coherent understanding of the right to keep and bear arms shared among the American populace. See Heller, 554 U.S. at 604–05, 128 S.Ct. 2783 (“[T]hat different people of the founding period had vastly different conceptions of the right to keep and bear arms ․ simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely understood liberties.”).

18. The status-based regulations of this period are repugnant (not to mention unconstitutional), and we categorically reject the notion that distinctions based on race, class, and religion correlate with disrespect for the law or dangerousness. We cite these statutes only to demonstrate legislatures had the power and discretion to use status as a basis for disarmament, and to show that status-based bans did not historically distinguish between violent and non-violent members of disarmed groups.

19. Again, we cite the repugnant, status-based regulations of an earlier period—disarming individuals on the basis of political affiliation or non-affiliation—merely to demonstrate the Nation’s tradition of imposing categorical, status-based bans on firearm possession.

20. See Thad W. Tate, The Social Contract in America, 1774–1787: Revolutionary Theory as a Conservative Instrument, 22 Wm. & Mary Q. 375, 376 (1965); see also Gundy v. United States, ––– U.S. ––––, 139 S. Ct. 2116, 2133, 204 L.Ed.2d 522 (2019) (Gorsuch, J., dissenting) (observing “John Locke [was] one of the thinkers who most influenced the framers[ ]”).

21. Locke based this duty on the consent of those within the political society; however, he contended that mere presence in a territory constituted tacit consent to the laws of the reigning sovereign. See Locke, supra, § 119 (“[I]t is to be considered what shall be understood to be a sufficient declaration of a man’s consent to make him subject to the laws of any government. There is a common distinction of an express and a tacit consent which will concern our present case․ [E]very man that hath any possessions or enjoyment of any part of the dominions of any government doth thereby give his tacit consent and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land to him and his heirs for ever, or a lodging only for a week, or whether it be barely travelling freely on the highway; and, in effect, it reaches as far as the very being of anyone within the territories of that government.”).

22. We cite these laws as evidence of the original understanding of the Second Amendment and the traditions concerning firearms regulation in historical context. Of course, our social and political awareness has obviously evolved significantly since that time, and by today’s standards, the concept of restricting fundamental rights based on political affiliation would be repugnant to the Constitution, including the First Amendment.

23. See Answering Br. 15 (citing 1 Wayne R. LaFave, Substantive Criminal Law § 2.1(b) (3d ed. 2017); Francis Bacon, Preparation for the Union of Laws of England and Scotland, in 2 The Works of Francis Bacon 160, 163–64 (Basil Montagu ed., Cary & Hart 1844); and 2 Jens David Olin, Wharton’s Criminal Law § 28:2 (16th ed. 2021)).

24. The Kanter dissent takes issue with this analysis in part because the death penalty was not always imposed. 919 F.3d at 458–62 (Barrett, J., dissenting). How punishments were meted out is beside the point. What matters is the exposure. See id. at 459 (“[M]any crimes remained eligible for the death penalty ․”).

25. We appreciate that these laws involved the isolated disarmament of the firearm involved in the offense, not a ban on possession as in the other laws we discuss above. Nevertheless, they support the notion that legislatures’ power to strip citizens of their arms was not limited to cases involving violent persons or offenses.

26. A plaintiff suing the trespasser could alternatively seek the value of the trespasser’s firearms. An Act for the Protection and Security of the Sheep and Other Stock on Tarpaulin Cove Island, Otherwise Called Naushon Island, and on Nennemessett Island, and Several Small Islands Contiguous, Situated in the County of Dukes County § 2 (1790), 1 Private and Special Statutes of the Commonwealth of Massachusetts 258, 259 (Manning & Loring ed., 1805).

27. We note that history and tradition may indicate that pretextual disarmament is inconsistent with the Second Amendment. Cf. 1 William Blackstone, Commentaries app. *300 (St. George Tucker ed., Birch & Small 1803) (decrying how “[i]n England, the people have been disarmed, generally, under the specious pretext of preserving the game”); Drummond v. Robinson Twp., 9 F.4th 217, 227–29 (3d Cir. 2021). Range does not claim his conviction was pretextual, however, so we leave the issue for another day.

28. Deference to state legislatures not only accords with longstanding national tradition, but also respects state legislatures’ unique ability to channel local concerns and values into criminal law. See Joshua M. Divine, Statutory Federalism and Criminal Law, 106 Va. L. Rev. 127, 188 (2020) (“[F]ederal reliance on state law disturbs uniformity by baking into federal law variations in state law. But far from being a downside, regional disparity is an asset.”); see also Paul H. Robinson & Tyler Scot Williams, Mapping American Criminal Law: Variations Across the 50 States 4 (2018) (surveying state variation in the incorporation of desert, deterrence, and incapacitation norms into their criminal laws). There is good reason that the criminal codes of arid states like Nevada and Colorado include offenses like diverting irrigation water, Nev. Rev. Stat. § 207.225 (2021), and causing prairie fires, Colo. Rev. Stat. § 18-13-109 (2022), which the code of a state like Maryland does not.In addition to preserving federalism and the separation of powers, upholding legislative determinations of when crimes are sufficiently serious to warrant disarmament avoids forcing “judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] experience’ in the field.” Bruen, 142 S. Ct. at 2130 (quoting McDonald, 561 U.S. at 790–91, 130 S.Ct. 3020). And as explained above, judicial determinations of when a crime is sufficiently violent have proven infeasible to apply in other contexts. See Binderup, 836 F.3d at 410 (Fuentes, J., concurring in part).

29. Some of our esteemed colleagues have expressed concerns about the breadth of state offenses that trigger disarmament under 18 U.S.C. § 922(g)(1). Binderup, 836 F.3d at 372 n.20 (Hardiman, J., concurring in part); Folajtar, 980 F.3d at 921 (Bibas, J., dissenting). But we do not perceive any inherent absurdity in a state’s interest in punishing drug offenders, see Ariz. Rev. Stat. Ann. § 13–3405, or individuals who abuse public services like recycling programs, see Mich. Comp. Laws Ann. § 445.574a(1)(d), or libraries, see 18 Pa. Cons. Stat. Ann. § 3929.1. Indeed, enforcement of the laws cited by our colleagues illustrates why legislatures have chosen to designate them as felonies. Cf. United States v. Bocook, 59 F.3d 167, 167 (4th Cir. 1995) (describing a prosecution for uttering obscene language by means of radio communication when a defendant “broadcast[s] unauthorized radio messages to aircraft and air traffic controllers” in which he “used obscene language, harassed a female air traffic controller, made threats to shoot down aircraft, and transmitted recorded music, weather reports, and warnings about his own activities”).

30. Moreover, in his supplemental brief, Range appears to raise the issue that a permanent ban on firearm possession lacks a historical basis. See Appellant’s Supp. Br. 3–4. As to arguments concerning the duration of a ban, Congress has addressed it in two ways. First, Congress has exempted any person whose conviction “has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored” from disarmament. § 921(a)(20). Second, Congress also permitted the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to restore individuals’ ability to possess firearms upon consideration of their personal circumstances, criminal record, and the public interest. 18 U.S.C. § 925(c). But these assessments proved so resource intensive for ATF that Congress has refused to fund the program since 1992. See Logan v. United States, 552 U.S. 23, 28 n.1, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007); S. Rep. No. 102-353 (1992). As we previously noted, “[i]f [the petitioner] and others in his position wish to seek recourse, it is to the legislature, and not to the judiciary, that efforts should be directed.” Folajtar, 980 F.3d at 911; Binderup, 836 F.3d at 402-03 (Fuentes, J., concurring in part and dissenting in part).

31. We note that Amici cited to a 1786 Massachusetts law, but the language Amici references comes from Chapter 46 of the 1785 Act of Massachusetts.

32. A concern with which district courts have wrestled when assessing the constitutionality of 18 U.S.C. § 922(g)(1) after Bruen is that interpreting “the people” in the Second Amendment to exclude individuals convicted of offenses would deviate from that phrase’s meaning in the First and Fourth Amendments. Cf. Collette, 22-CR-141, ––– F.Supp.3d at ––––, 2022 WL 4476790, at *8 (“[T]his Nation has a longstanding tradition of exercising its right—as a free society—to exclude from ‘the people’ those who squander their rights for crimes and violence.”), with Coombes, No. 22-CR-189, ––– F.Supp.3d at ––––, 2022 WL 4367056, at *4 (“[T]he court declines to carve out felons from the scope of the Second Amendment’s protection of ‘the people.’ ”). But Justice Stevens’s dissent leveled that very criticism against the Heller majority: “[T]he Court limits the protected class to ‘law-abiding, responsible citizens.’ But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions.” 554 U.S. at 644, 128 S.Ct. 2783 (Stevens, J., dissenting). However, our reasoning applies solely to the Second Amendment and does not imply any limitation on the rights of individuals convicted of felony and felony-equivalent offenses under other provisions of the Constitution. 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.

massachusetts vs dean f donnell

The Truth News — Tue, 22 Aug 2023 19:11:04 +0000

Jared sometimes gets over-enthusiastic but this appears to be 100% solid. Case is Commonwealth of Massachusetts v Dean F. Donnell, opinion is dated 8/3/23 by judge John F Coffey, listed in the last page as Associate Justice. Appears to come out of Middlesex MA. If anybody can find me a PDF of the final order and if possible, motions by the defense that led to this (or at least the defense attorney’s name) I’d be much obliged.

The winning argument appears to be based on Bruen. Reconstructing it as best I can from the judges order, defense argued that there is no text history or tradition of barring people from defensive arms in one state merely because they come from another state. I don’t see any evidence that my three other favorite arguments were used:

Making somebody get somewhere around 18 permits total to get national carry rights violates the bans on excessive fees and excessive delays in the access to carry rights found at Bruen footnote 9. It absolutely detonates those bans.
Saenz v Roe 1999 (US Supreme Court) bans states from discriminating against visiting residents of other states. (This would not be an issue in Massachusetts regardless because it is possible for somebody from New Hampshire or another state like mine in Alabama to obtain a Massachusetts carry permit.)
The MA permit processes still contain subjective elements such as letters of reference banned in Bruen footnote 9 via the citation to Shuttlesworth v Birmingham 1969. In other words, if this guy would have been forced to jump through banned subjective hoops to carry in MA, he was under no obligation to do that. The proof is in the Shuttlesworth case itself; the Reverend Fred Shuttlesworth was legally required to get a permit for a demonstration (a constitutional right) involving subjective standards; he didn’t get the permit, ran the protest anyway, was criminally charged and convicted in State Court and then the US Supreme Court cleared him of all charges because everything that happened to him was unconstitutional: subjective standards when accessing to a basic civil right are absolutely forbidden in that 1969 case.

Lowell (MA) District Court No. 2211CR2835 Middlesex VS Dean F. Donnell case from Guns and Gadgets says MA law allowing prosecution for NH carry permit holders for crossing into MA unconstitutional.

Another Court Strikes Cannabis Gun Control Law – United States v. Daniels

The Truth News — Thu, 17 Aug 2023 11:06:17 +0000

Another Court Strikes Cannabis Gun Control Law – United States v. Daniels

Facts of the case

In 1994, Earthy D. Daniels, Jr., was convicted of being a felon in possession of a firearm. Under the Armed Career Criminal Act of 1984 (ACCA), which imposes a mandatory minimum 15-year sentence on anyone convicted of being a felon in possession of a firearm and who has three previous convictions for a violent felony, Daniels’ sentence was enhanced. After an unsuccessful appeal, Daniels filed a motion to vacate, set aside, or correct his federal sentence. Daniels argued that his sentence violated the Constitution because it was based in part on two prior convictions that were themselves unconstitutional. The District Court denied the motion. The Court of Appeals affirmed.

The Fifth Circuit Court of Appeals is the most recent court to find that federal cannabis gun control legislation is unconstitutional. The case, United States v. Daniels, was published on August 9, 2023. The court joins a growing list of courts which have all found these restrictions unconstitutional.

Federal law prohibits cannabis users from buying or owning guns. A 2022 U.S. Supreme Court case, New York State Rifle & Pistol Association, Inc. v. Bruen, held that the test for determining whether a gun control law is constitutional is (1) whether the affected person has Second Amendment rights, and (2) whether the restriction is “consistent with the Nation’s historical tradition of firearm regulation.”

All or virtually all courts that have dealt with the federal cannabis gun control law agree that cannabis users have Second Amendment rights. And nearly all courts agree that the federal cannabis restriction is not “consistent with the Nation’s historical tradition of firearm regulation.” Now, we can add the Fifth Circuit to that list:

[O]ur 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.

I’ll keep this post very brief and not analyze every aspect of the Daniels decision, since I’ve written about many of the other federal cannabis gun control cases (see below) and the analysis here is very similar. Three things are important to keep in mind following the Daniels decision:

The ruling is an “as applied” ruling, meaning that the law was found to be unconstitutional as applied to the defendant. So the ruling is narrower than it could have been. This is similar to what happened in the Third Circuit Court of Appeals decision in Range v. Attorney General of the United States of America, which was also as-applied. For what it’s worth, Range wasn’t a cannabis case – it was a case based on gun control restrictions due to a prior disqualifying misdemeanor conviction (which is one of the other many gun control restrictions).
Earlier this year, a federal court in Texas decided a case on very similar grounds, in United States v. Connelly. I wrote about that case here. The federal district courts in Texas are part of the Fifth Circuit, meaning that if Connelly is appealed, it will likely end up with the same or similar outcome to Daniels.
While this is the first Fifth Circuit case applying the Bruen test to federal cannabis gun control laws, it’s not the first case to apply the Bruen test to other federal gun control laws. Earlier this year, the Fifth Circuit decided United States v. Rahimi, holding unconstitutional (under Bruen) federal restrictions on gun possession by persons subject to civil domestic violence restraining orders. Rahimi was recently appealed to the U.S. Supreme Court, which agreed to hear the case in the upcoming term. Rahimi is not a cannabis case, but it is certainly possible that the U.S. Supreme Court’s ruling could affect the sea of cannabis gun control cases pending in federal court now.

In sum, Daniels is just one of many federal cases that are chipping away at gun control restrictions. This raises the chances, yet again, that people won’t have constitutional rights stripped away just because they consume cannabis to help with debilitating illnesses or even recreationally. source

Learn More on 2nd Amendment Cases for Weed and other things you may care about:

Federal Judge Rules Gun Ban for Weed Smokers Unconstitutional Feb 2023

Another Court Strikes Cannabis Gun Control Law – United States v. Daniels Aug 2023

Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi June 2023

United States v. Daniels

Opinion

CAUSE NO. 1:22-cr-58-LG-RHWR-1

2022-07-08

UNITED STATES of America v. Patrick Darnell DANIELS, Jr.

Erica L. Rose, Assistant US Attorney, U.S. Attorney’s Office, Gulfport, MS, for United States of America. Leilani Leith Tynes, Public Defender, Federal Public Defender, Gulfport, MS, for Patrick Darnell Daniels, Jr.

LOUIS GUIROLA, JR., UNITED STATES DISTRICT JUDGE

Erica L. Rose, Assistant US Attorney, U.S. Attorney’s Office, Gulfport, MS, for United States of America.

Leilani Leith Tynes, Public Defender, Federal Public Defender, Gulfport, MS, for Patrick Darnell Daniels, Jr.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS

LOUIS GUIROLA, JR., UNITED STATES DISTRICT JUDGE

BEFORE THE COURT is the [24] Motion to Dismiss filed by Defendant, Patrick Darnell Daniels, Jr. The Government filed a [27] Response, to which Defendant [28] replied. This Defendant is under indictment for knowingly possessing a firearm while an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). Defendant has filed the instant [24] Motion to Dismiss the indictment, arguing that 18 U.S.C. § 922(g)(3), is unconstitutional under the Second Amendment and pursuant to the Supreme Court’s recent decision in New York State Rifle & Pistol Assoc., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). The Court has conducted a hearing on the matter and after due consideration of the arguments of counsel, the record, and the applicable law, finds that the Motion should be denied.

DISCUSSION

I. Second Amendment Framework

Defendant argues that this case must be dismissed because section 922(g)(3) is unconstitutional under the Second Amendment to the United States Constitution. Therefore, to rule of this Motion, the Court must analyze and apply Second Amendment jurisprudence as articulated by the Supreme Court.

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court concluded, after thorough textual and historical analysis, that the Second Amendment confers “an individual right to keep and bear arms.” Id. at 595, 128 S.Ct. 2783. The Court was quick to note that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626, 128 S.Ct. 2783. Relevant here, the Court stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Id. In a footnote, the Supreme Court classified these traditional restrictions on firearm possession as a non-exhaustive list of “presumptively lawful regulatory measures.” Id. at 627 n. 26, 128 S.Ct. 2783. The Supreme Court went on to strike down a law in the District of Columbia which “totally bans handgun possession in the home.” Id. at 628, 128 S.Ct. 2783. In doing so, the Supreme Court conducted a historical analysis of handgun restrictions in the United States and found the D.C. restriction to be novel in its severity, targeting “the quintessential self-defense weapon.” Id. at 629, 128 S.Ct. 2783.

In New York State Rifle & Pistol Assoc., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), the Supreme Court again considered the contours of the Second Amendment right to bear arms. The Court characterized its earlier decisions as “recogniz[ing] … the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *5. The Court was called upon to assess the constitutionality of a New York licensing scheme which allowed authorities to deny concealed-carry permits even where an applicant met certain threshold criteria. Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *5-*6. In doing so, the Court clarified and explained the methodology to be used in addressing Second Amendment claims. The Court rejected “a ‘two-step’ framework” involving “means-end scrutiny” in use by various appellate courts and instead clarified that the appropriate methodology centers “on constitutional text and history.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *7-10. Hence, to answer Second Amendment questions, courts must “assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *12. In other words:

In keeping with Heller , we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Id. (quoting Konigsberg v. State Bar of Cal. , 366 U.S. 36, 50, n. 10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961) ).

On the second prong of the Bruen test, the Court said: ” ‘historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.’ ” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *12 (quoting McDonald v. City of Chicago , 561 U.S. 742, 803-04, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (Scalia, J., concurring)). This analysis will often require the use of “historical analogies,” whether because of “unprecedented societal concerns or dramatic technological changes.” Bruen , 2022 WL 2251305, at 12, ––– U.S. at ––––, 142 S.Ct. 2111. Thus, “[w]hen confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *13. “[E]ven if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id.

The opinion gives an example of analogical reasoning in the case of location-based firearm restrictions. Because there are historical analogues to modern “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” Heller , 554 U.S. at 626, 128 S.Ct. 2783, even though such analogues may have protected relatively few “sensitive places,” still, “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” Bruen , 2022 WL 2251305, at *14, ––– U.S. at ––––, 142 S.Ct. 2111.

II. Application to Section 922(g)(3)

The Court now applies the Second Amendment framework outlined in Bruen to the criminal statute at issue. Section 922(g)(3) provides that “[i]t shall be unlawful for any person … (3) who is an unlawful user of or addicted to any controlled substance … [to] possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(3).

1. Textual Analysis

The Court begins with the textual coverage of the Second Amendment. On this subject the Supreme Court has read “the Amendment’s operative clause,” that ” ‘the right of the people to keep and bear Arms shall not be infringed,’ ” to mean that ” ‘guarantees the individual right to possess and carry weapons in case of confrontation’ that does not depend on service in the militia.” Bruen , 2022 WL 2251305, at *9, ––– U.S. at ––––, 142 S.Ct. 2111 (quoting Heller , 554 U.S. at 592, 128 S.Ct. 2783 ). Because section 922(g)(3) restricts the “possess[ion]” of “any firearm or ammunition,” the Court concludes that section 922(g)(3) regulates conduct which is facially covered by the plain text of the Second Amendment. See 18 U.S.C. § 922(g)(3).

The Court notes for the purpose of comprehensiveness that Bruen describes “ordinary, law-abiding, adult citizens” as indisputably “part of ‘the people’ whom the Second Amendment protects.” Id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *14 ; see also id. at ––––, 142 S.Ct. 2111, 2022 WL 2251305 at *12 (“The Second Amendment … ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”) (quoting Heller , 554 U.S. at 635, 128 S.Ct. 2783 ). In fact, the Court specifically limited its decision to “may-issue” licensing regimes; it did not “suggest the unconstitutionality” of the “shall-issue” licensing regimes in use by 43 states, which “are designed to ensure only that those bearing arms in the jurisdiction are, in fact ‘law-abiding, responsible citizens.’ ” Bruen , 2022 WL 2251305, at *18 n. 9, ––– U.S. at –––– n.9, 142 S.Ct. 2111. Because it is concerned with “unlawful” drug users and addicts, there is some doubt that section 922(g)(3) is textually covered by the Second Amendment, insofar as it has been interpreted to guarantee the right to keep and bear arms to ordinary, law-abiding, responsible citizens concerned with self-defense. See Roberge v. United States , No. 1:04CR70, 2013 WL 4052926, at *17 (E.D. Tenn. Aug. 12, 2013) (“Persons like Roberge, who unlawfully use controlled substances, are not law abiding, responsible citizens. Roberge can be lawfully prohibited from possessing firearms while he is engaging in criminal conduct by using methamphetamine.”); see also United States v. Campbell , No. 4:18CR23, 2020 WL 699821, at *4 (E.D. Tenn. Feb. 11, 2020).

2. Historical Analysis

To be certain, the Court will review historical research into statutes in the American legal tradition which are analogous to § 922(g)(3). Heller explicitly cautioned readers not to “doubt … longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Heller , 554 U.S. at 626, 128 S.Ct. 2783. Such regulatory measures are “presumptively lawful.” See id. at 627 n. 26, 128 S.Ct. 2783. The Supreme Court echoed this in McDonald v. Chicago , 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (“We repeat those assurances here,” namely, “that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill.’ “) (quoting Heller , 554 U.S. at 626, 128 S.Ct. 2783 ). “In addition, Heller demonstrates that a regulation can be deemed ‘longstanding’ even if it cannot boast a precise founding-era analogue.” Nat’l Rifle Ass’n of Am. v. Bureau of Alcohol, Tobacco, Firearms & Explosives , 700 F.3d 185, 196 (5th Cir. 2012) (citing United States v. Skoien , 614 F.3d 638, 640 (7th Cir. 2010) ).

In a pre- Heller case, the Fifth Circuit characterized § 922(g)(3) as a ” ‘limited, narrowly tailored specific exception’ ” to the Second Amendment right which is “not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” United States v. Patterson , 431 F.3d 832, 835-36 (5th Cir. 2005) (quoting United States v. Emerson , 270 F.3d 203, 261 (5th Cir. 2001) ). The Fifth Circuit tethered its holding to the high-risk nature of drug abusers—”Congress may prohibit those who pose a risk to society, like felons, from exercising the right to bear arms,” and “unlawful users of controlled substances pose a risk to society if permitted to bear arms.” Patterson , 431 F.3d at 835-836. In an earlier decision, the Fifth Circuit had drawn upon numerous law review articles and other secondary sources to establish that § 922(g)‘s restriction on possession of firearms by felons—another high-risk class—has a long and established history in English and American common law. Emerson , 270 F.3d at 226 n. 21. The Fifth Circuit reaffirmed this holding in a post- Heller decision in 2013. See United States v. May , 538 F. App’x 465, 466 (5th Cir. 2013) (citing Patterson , 431 F.3d at 836 ); see also United States v. Moreno , 811 F. App’x 219, 223 (5th Cir. 2020) (upholding Sentencing Guideline § 2D1.1(b)(1), which “increases a base offense level by two levels ‘if a dangerous weapon (including a firearm) was possessed ’ in the course of an offense involving drugs,” because “drug traffickers pose a risk to society that is enhanced by their possession firearms” and the enhancement “harmonizes with historical traditions regarding the Second Amendment”) (emphasis in original). District courts in the Fifth Circuit have also upheld the constitutionality of § 922(g)(3) since Heller.

See also United States v. Roach , 201 F. App’x 969, 974 (5th Cir. 2006) (repeating this holding).

See also Nat’l Rifle Ass’n , 700 F.3d at 200-04 (discussing the historical foundations of modern firearm restrictions and noting “revolutionary and founding-era gun regulations … that targeted particular groups for public safety reasons”).

See, e.g., Piscitello v. Bragg , No. EP-08-CA-266-KC, 2009 WL 536898, at *3 (W.D. Tex. Feb. 18, 2009).

Other circuit courts have likewise upheld the constitutionality of § 922(g)(3) under Heller ‘s standards of history and tradition. For instance, the Eighth Circuit collected various cases which found that § 922(g)(3) fell within Heller ‘s presumptively lawful category of historically attested firearm restrictions. See United States v. Seay , 620 F.3d 919, 924-25 (8th Cir. 2010) (holding that ” § 922(g)(3) has the same historical pedigree as other portions of § 922(g) which are repeatedly upheld by numerous courts since Heller “); see also United States v. Dugan , 657 F.3d 998, 999 (9th Cir. 2011) (adopting the reasoning of Seay and Yancey , discussed infra , that § 922(g)(3) “embodies a long-standing prohibition of conduct similar to the examples listed in Heller “); United States v. Richard , 350 F. App’x 252, 260 (10th Cir. 2009) (upholding § 922(g)(3) as one of the ” ‘presumptively lawful regulatory measures’ ” mentioned in Heller ).

Perhaps the most robust discussion of the historicity of § 922(g)(3) is contained in United States v. Yancey , 621 F.3d 681 (7th Cir. 2010). In that case, the Seventh Circuit began by noting that “[i]t was not until 1968 that Congress barred the mentally ill from possessing guns, and it was in that same legislation that habitual drug users were prohibited from having guns.” Id. at 683 (citing Gun Control Act of 1968, Pub. L. 90-618, § 102, 82 Stat. 1213, 1220). However, Congress’s disarmament of drug abusers did not occur in a vacuum; rather, “many states” had theretofore “restricted the right of habitual drug abusers or alcoholics to possess or carry firearms.” Yancey , 621 F.3d at 684. “These statutes demonstrate that Congress was not alone in concluding that habitual drug abusers are unfit to possess firearms.” Id. And these prohibitions “are merely the latest incarnation of the states’ unbroken history of regulating the possession and use of firearms dating back to the time of the amendment’s ratification.” Id.

The Seventh Circuit analogized disarmament of drug abusers to disarmament of felons, though it noted a debate in legal scholarship as to the extent to which felons were disarmed in American legal tradition. Id. at 684. The Court cited cases from the nineteenth century upholding statutes which disarmed “tramps,” see State v. Hogan , 63 Ohio St. 202, 58 N.E. 572 (1900), and “intoxicated persons,” see State v. Shelby , 90 Mo. 302, 2 S.W. 468 (1886). The Seventh Circuit ultimately concluded: “Whatever the pedigree of the rule against even nonviolent felons possessing weapons … most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’ ” Id. at 684-85 (citing United States v. Vongxay , 594 F.3d 1111, 1118 (9th Cir. 2010) ). With the historical conclusion that dangerous or unvirtuous citizens could be disarmed, the Seventh Circuit produced sources corroborating Congress’s finding that drug abusers are more likely to engage in gun violence and more likely to exhibit a dangerous lack of self-control. Id. , the Court found § 922(g)(3) constitutional.

See also Nat’l Rifle Ass’n , 700 F.3d at 201, where, while summarizing the historical evidence relating to disarmament of dangerous persons, the Fifth Circuit said: “[t]hese categorical restrictions may have been animated by a classical republican notion that only those with adequate civic ‘virtue’ could claim the right to arms.” Id. “Scholars have proposed that at the time of the founding, ‘the right to arms was inextricably and multifariously linked to that of civic virtu[e] (i.e., the virtuous citizenry),’ and that ‘one implication of this emphasis on the virtuous citizen is that the right to arms does not preclude laws disarming the unvirtuous citizens (i.e., criminals) or those who, like children or the mentally imbalanced, are deemed incapable of virtue.” Id. (citing Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations , 60 Hastings L. J. 1339, 1359 (2009) ). This observation comports with the Supreme Court’s statements that the Second Amendment, as a threshold matter, covers only ordinary and responsible law-abiding citizens.

CONCLUSION

The Court finds that the analysis in Yancey demonstrates the historical attestation demanded by the Bruen framework. The appellate courts observe that “Congress enacted the exclusions in § 922(g) to keep guns out of the hands of presumptively risky people,” Yancey , 621 F.3d at 683, and enumerated unlawful drug users and addicts amongst other similar classes. The Court need not repeat the Seventh Circuit’s historical analysis in Yancey ; it suffices to show that analogous statutes which purport to disarm persons considered a risk to society—whether felons or alcoholics—were known to the American legal tradition. See, e.g., United States v. Carter , 669 F.3d 411, 415 (4th Cir. 2012) (“Placed in the wrong hands, firearms present a grave threat to public safety, and for this reason, the Anglo-American right to bear arms has always recognized and accommodated limitations for persons perceived to be dangerous.”). The Court therefore finds that 18 U.S.C. § 922(g)(3) passes constitutional muster under the legal framework articulated in Heller and Bruen .

IT IS THEREFORE ORDERED AND ADJUDGED that the [24] Motion to Dismiss filed by Defendant, Patrick Darnell Daniels, Jr. is DENIED.

SO ORDERED AND ADJUDGED this the 8^th day of July, 2022.

source

Teter v. Lopez – Hawaii Butterfly Knife Ban Violates Second Amendment, Court Says

The Truth News — Wed, 16 Aug 2023 06:19:03 +0000

Hawaii Butterfly Knife Ban Violates Second Amendment, Court Says

Prospective knife owners convinced the Ninth Circuit to overturn a decision that upheld Hawaii’s butterfly knife ban as in compliance with their right to keep and bear arms.

The US Court of Appeals for the Ninth Circuit on Monday reversed summary judgment favoring state officials, and instructed the lower court to continue proceedings in compliance with its determination that butterfly knifes are protected by the Second Amendment.

A butterfly knife, whose blade is encased in a split handle that manually unfolds, is commonly owned for law-abiding purposes, Judge Carlos T. Bea said.

“Aside from these conclusory legislative statements, Hawaii has submitted no evidence that butterfly knives are not typically possessed by law-abiding citizens for self-defense,” Bea said.

State officials said the ban was analogous to statutes dating back to 1837, which regulated bladed weapons like Bowie knives, “Arkansas Toothpicks,” metal knuckles, sword-canes, and other weapons. But the panel disagreed, pointing out that Hawaii hadn’t cited any statute which “categorically banned the possession of any type of pocketknife.”

Hawaii first criminalized carrying a butterfly knife in 1993, and today bans their manufacture, sale, and possession in the state.

Alan A. Beck of San Diego and Stephen D. Stamboulieh of Olive Branch, Miss., represents the plaintiffs. The Office of the Attorney General Hawaii represents the officials.

The Hawaii Firearms Coalition, Mountain States Legal Foundation, San Diego County Gun Owners Political Action Committee, Firearms Policy Coalition, and Knife Rights Foundation Inc. filed amicus briefs in opposition to the rule. Everytown for Gun Safety filed an amicus brief in support of the rule.

Ninth Circuit Holds Hawaii’s Butterfly Knife Ban Unconstitutional!

Today, a panel of the United States Court of Appeals for the Ninth Circuit held that Hawaii’s ban on butterfly knives violates the Second Amendment. Knife Rights filed an important amicus (friend of the court) brief in support of the appellants in the case of Teter v. Lopez.

In its decision, the Court reversed the district court’s judgment in favor of Hawaii and remanded the case back to the district court “for further proceedings consistent with this opinion.” The Court also denied the appellees’ request to remand the case for further factual or historical development in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, determining that only “legislative facts” were relevant and further development of the facts was unnecessary since the case presented only a legal question. Click to read the full opinion.

As Knife Rights has argued in its recently filed Second Amendment lawsuits against the State of California’s ban on switchblades (also in the Ninth Circuit), the City of Philadelphia (recently settled in our favor) and the Federal Switchblade Act, enforced by the federal government, the Court held that possession of butterfly knives is conduct covered by the plain text of the Second Amendment and that bladed weapons are “arms” within the meaning of the Second Amendment. It also held that at the time of the adoption of the Second Amendment, the term “arms” was understood to include bladed weapons and concluded that the Constitution guarantees keeping and bearing of bladed arms for lawful purposes including self-defense.

Knife Rights’ attorney John Dillon said, “We applaud the Ninth Circuit decision in Teter v. Lopez. Butterfly knives, like any other variation of folding pocket knives, are protected arms under the Second Amendment. This decision supports our recent challenges to city, state and Federal knife bans. Whether they like it or not, governments throughout America will be forced to understand that they cannot ban common arms.”

While this decision is a huge victory, before balisong enthusiasts in Hawaii rush out to buy one, it must be noted that the district court still has to take action and there’s also the possibility of a rehearing en banc or other legal activity. Stay tuned!

Congratulations to the plaintiffs’ attorneys, Alan Beck and Stephen Stamboulieh, on this important victory.

Litigation Highlight: Ninth Circuit Hears Oral Argument in Challenge to Hawaii’s Butterfly Knife Ban

First principles of federalism suggest that state-to-state variety is a feature, not a bug, of the American system. Each state can generally determine for itself how to exercise its police power and provide for public safety. However, recent litigation following the Supreme Court’s Bruen decision suggests that differentiation among state weapons regulations may raise constitutional concerns. Outlier states are now on the defensive when it comes to their sui generis weapons regulations. In Hawaii, a unique approach to knife control faces a Second Amendment challenge.

On February 14, the Ninth Circuit heard oral arguments in Andrew Teter v. Anne E. Lopez[1]. The case involves a challenge to a Hawaii state law banning butterfly knives. The statute, which Hawaii originally passed in 1999, makes it a misdemeanor to knowingly manufacture, sell, transfer, possess, or transport butterfly knives within the state. The state described butterfly knives, also known as balisong knives, in its original briefing as having blades enclosed in a split handle, just as switchblades do. Unlike switchblades, however, the blade in a butterfly knife is produced by manually pulling apart the split handle and turning the knife around rather than by using a spring-action or gravity release mechanism.

The provision banning butterfly knives sits within a larger portion of the Hawaii Revised Statutes that regulates “firearms, ammunition, and dangerous weapons.” The prior sub-sections of the code ban dirks, daggers, blackjacks, slug shots, billy clubs, metal knuckles, pistols, and other deadly or dangerous weapons, along with switchblades.

The parties filed original briefing in the Court of Appeals nearly three years ago, after the District Court for the District of Hawaii granted the state’s motion for summary judgment. However, the Ninth Circuit panel heard arguments only this month, following an extended abeyance and supplemental briefing after the Bruen decision. The panel included Judges Carlos Bea, Daniel Collins, and Kenneth Lee.

In their 31-page supplemental brief filed following Bruen, the plaintiff-appellants argued that the Second Amendment protects the individual right to keep and bear butterfly knives as weapons of self-defense. The brief argued that Hawaii’s outright ban of butterfly knives—residents can neither carry them nor possess them at home—violates that right. Under Bruen’s text, history, and tradition test, appellants said, there are no historical analogues from the Founding that are comparably justified and comparably burdensome to the present-day butterfly knife ban, despite the fact that butterfly knives existed in that period. Appellants further argued that these knives fall squarely within the definition of bearable arms “because they can be held by a person to attack another person in confrontations.”

Appellants asserted that the history books contain no analogues to Hawaii’s butterfly knife ban that might support the state’s decision to ban a weapon that is otherwise presumptively protected under the Second Amendment. During oral argument, appellants pointed out that Hawaii is an outlier in its criminalization of butterfly knives as a matter of both historical and present law. Only one other state — New Mexico — bans butterfly knives outright.

In response, the state’s supplemental brief contended that Hawaii’s butterfly knife ban passes constitutional muster even in a post-Bruen world. The state, which under Bruen bears the burden of producing a relevant historical analogue, appended over 200 pages of evidence from the historical record to its brief. That record, the state suggested, reveals a long historical tradition of knife regulations throughout Hawaiian and U.S. history, dating to the period of the Founding, that supports the present-day ban. Hawaii argued that its ban on butterfly knives and the related switchblade “is part of a tradition of banning weapons that are closely associated with criminals and criminal activity.”

In isolating historical analogues, Hawaii focused on laws from the Founding Era that banned knives (and weapons, generally) associated primarily with criminal activity. The state relied heavily on evidence of Bowie knife regulation. The state argued that the butterfly knife ban is analogous to those laws because it similarly targets weapons used disproportionately by criminals. The state further relied on footnote 9 in the Bruen opinion—which carved out shall-issue handgun licensing—to argue that courts should uphold state regulations when “they do not necessarily prevent law-abiding, responsible citizens from exercising their Second Amendment right[s].”

During oral argument, the panel of judges pushed back on many of the state’s arguments. Notably, Judge Bea pressed the deputy solicitor general of Hawaii on his request for remand to further develop the factual record of historical analogues to Hawaii’s butterfly knife ban. Judge Bea seemed unconvinced that developing the historical record was a factual inquiry worthy of remand. Instead, he suggested that remand would be inappropriate because the state had already enjoyed an adequate opportunity to collect historical statutes and because the history of legislation is question of law, not fact. Notably, the factual record in this case does not include statistics or information regarding the number of butterfly knives in private possession or how frequently they are used in crimes.

Similarly, Judge Bea seemed skeptical of Hawaii’s argument that the relevant category of historical analogues was bans on weapons commonly associated with criminal behavior. The panel expressed doubt that “weapons associated with criminals” constituted a firm enough category to support a legislative ban given the historical record. Instead, Judge Collins and Judge Lee asked for evidence that butterfly knives fell in the category of “dangerous and unusual weapons,” which do not have Second Amendment protection. The Hawaii first deputy solicitor general argued that weapons associated with criminals are generally “dangerous and unusual weapons” that do not benefit from Second Amendment protection.

Notably, counsel for the appellants appeared to suggest that “dangerous and unusual weapons” lack Second Amendment coverage only in “carry” contexts (as opposed to ownership)—this argument wasn’t made explicitly, but counsel stated he would like to preserve it. Appellants’ counsel made this point in response to a question from Judge Lee about whether the “dangerous and unusual weapons” rule should be a freestanding threshold inquiry or, instead, part of the Bruen historical analysis. If courts were to read the “dangerous and unusual weapons” carveout as applying only to laws regulating carriage of such arms, laws banning possession of weapons such as grenade launchers might violate the Second Amendment.

Judge Collins further suggested that, despite Hawaii’s argument to the contrary, Bruen’s endorsement of laws (like shall-issue licensing) that do not restrict law-abiding citizens from exercising Second Amendment rights do not control in analyzing the butterfly-knife law because it is a total ban and not a regulation on carry or use. Bruen footnote 9, Judge Collins implied, should only come into play when a law seeks to regulate the use of weapons by non-law-abiding citizens. The state argued that the narrowness of the law — its application only to butterfly knives — makes footnote 9 analytically relevant.

The Ninth Circuit panel also questioned the Hawaii legislature’s motive for banning butterfly knives (moving beyond Bruen’s history-centric test). The judges expressed some doubt about the state’s argument that the legislative history demonstrated that butterfly knives are disproportionately used by criminals.

Several features of this case stand out, even as the parties await an official ruling from the Ninth Circuit. First, counsel for the appellants argued for an extremely strict historical approach in cases involving weapons that existed at the Founding. Appellants’ counsel claimed that Bruen requires a finding of unconstitutionality whenever a state regulates a weapon that existed at the Founding in a manner that goes beyond the regulations on the books close in time to 1791. This would mean the existence of analogous regulations can only be used to support the constitutionality of legislation regulating arms that did not exist at the Founding. For arms that did exist at the Founding, the government would have to point to legislation that is identical—not merely analogous. If circuit courts are amenable to the application of this sort of strict historical rule, many other non-firearm weapons regulations may be in constitutional danger.

Second, the Ninth Circuit panel is still working out how Bruen alters, or clarifies, preexisting Supreme Court precedent. Judge Lee asked appellants’ counsel whether the “dangerous and unusual weapons” rule from Heller was part of Bruen’s historical-analogue analysis. Appellants’ counsel responded that the rule should be subsumed into the historical-analogue analysis. That approach may result in a significantly narrower “dangerous and unusual weapons” exception to Second Amendment rights than had existed pre-Bruen. Similarly, courts may focus on Justice Alito’s emphasis, in his concurrence in Caetano, that a weapon must be both dangerous and unusual in order for regulation of that weapon to fall outside of the Amendment’s scope.

Third, many questions remain about what a trial court needs to do when considering Second Amendment challenges. What are the “facts” that are relevant to the Bruen inquiry? Do records of historical laws that serve (or fail to serve) as relevant analogues constitute facts that belong in the realm of trial courts, as the state of Hawaii believes, or can they be “found” in the first instance by an appellate court? Are statistics about the prevalence of particular weapons at the Founding, or about current uses of particular weapons, necessary to decide Second Amendment cases? These questions must be answered if the lower courts are to handle Second Amendment cases effectively without the constant specter of a possible remand.

Finally, this case illustrates what much post-Bruen litigation has shown: determining a relevant historical analogue can be tricky. The panel of judges spent little to no time during oral argument asking counsel on either side about the plethora of historical statutes produced by the state that regulated the use of knives. America’s long history of Bowie knife bans, it seems, is not necessarily a substantial enough historical analogue in a Second Amendment case challenging a butterfly knife ban—although the questioning suggested the judges might agree that this tradition would support a ban on the public carry of butterfly knives (rather than a broader ban on possession like Hawaii’s law).

[1] The case caption was originally Andrew Teter v. Holly T. Shikada, but has since been updated to reflect to the fact that Anne Lopez is now the attorney general of Hawaii.

US v. Jessie Bullock – Gun Possession & Convicted Felons

The Truth News — Mon, 03 Jul 2023 17:44:11 +0000

US, v. Jessie Bullock – Federal Judge Tosses Gun Possession Case Against Convicted Felon

UNITED STATES OF AMERICA, v. JESSIE BULLOCK

Supreme Court of Mississippi.

Jesse Roland BULLOCK, Jr. v. STATE of Mississippi.

No. 1999-CP-01667-SCT.

Decided: September 14, 2000

BEFORE BANKS, P.J., WALLER AND DIAZ, JJ. Jesse Roland Bullock, Appellant, pro se. Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

¶ 1. This matter is before the Court on appeal from the judgment of the Circuit Court of Marion County dismissing Jesse Roland Bullock, Jr.’s Petition for Post Conviction Relief. Because Bullock’s petition is time barred, we affirm.

¶ 2. Jesse Roland Bullock, Jr. pled guilty in October of 1991 to manslaughter and aggravated assault. On November 1, 1991 he was sentenced to twenty years for manslaughter and twenty years for aggravated assault, with ten years of the aggravated assault to run concurrently with the sentence for manslaughter and ten years to run consecutively.

¶ 3. In August of 1999, Bullock filed a Motion for Post-Conviction Relief. The circuit court dismissed the motion as procedurally barred. Bullock filed a timely notice of appeal.

II.

WHETHER THE LOWER COURT ERRED BY RULING THAT THE APPELLANT’S MOTION FOR POST-CONVICTION COLLATERAL RELIEF IN TRIAL COURT WAS BARRED UNDER MISS. CODE ANN. § 99-39-5(2)?

¶ 4. Bullock’s motion for post-conviction relief was barred by Miss.Code Ann. § 99-39-5(2) (1994). Pursuant to § 99-39-5(2) a defendant has three years after being sentenced to bring an action. Miss.Code Ann. § 99-39-5(2). The statute also establishes three exceptions to the three-year time bar. Luckett v. State, 582 So.2d 428, 430 (Miss.1991). However, Bullock does not fit under any of the exceptions.

III.

WHETHER THE COURT ERRED IN RULING THAT THERE WAS NO EVIDENCE TO SUPPORT THE APPELLANT’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 5. Were we to reach the merits of Bullock’s claim of ineffective assistance of counsel, we would conclude that there was not enough evidence in the record to support this claim. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

IV.

¶ 6. Accordingly, the circuit court’s judgment is affirmed.

¶ 7. DISMISSAL OF POST CONVICTION RELIEF AFFIRMED.

BANKS, Presiding Justice, for the Court:

PRATHER, C.J., PITTMAN, P.J., McRAE, SMITH, MILLS, WALLER, COBB AND DIAZ, JJ., CONCUR. source

US, v. Jessie Bullock – Gun Possession & Convicted Felons

Being convicted of a felony–even a violent one–is not enough to deprive someone of their Second Amendment rights for life, a federal judge has ruled.

The ruling marks the first U.S. District Court to strike down the federal prohibition on convicted felons possessing firearms—18 U.S.C. § 922(g)(1). Though its opinion only extends to the defendant Bullock, it will undoubtedly add fuel to the growing legal fire over who can be prohibited from purchasing or possessing firearms following the Supreme Court’s decision in 2022’s New York State Rifle and Pistol Association v Bruen. It could also help motivate the Supreme Court to step in and further expound on where the limits of Second Amendment protections lie.

He was no less forceful in his criticism of the High Court and its Bruen decision in his 77-page dismissal opinion on Wednesday.

“[T]he plain text of the Second Amendment covers Mr. Bullock’s conduct—possession of ordinary firearms in the home—and therefore presumptively protects him,” Reeves wrote.

While much of the opinion was spent criticizing the Supreme Court’s view of the Second Amendment and its new test for applying it, Judge Reeves ultimately said the high standard might be justified.

“In breathing new life into the Second Amendment, though, the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights,” Reeves wrote. “Americans are waiting for Heller and Bruen’s reasoning to reach the rest of the Constitution.”

The Department of Justice declined to comment on the ruling or its plans for an appeal. source

https://youtu.be/1wlxWI0rL6w

Another Judge Chips Away at Laws Barring Felons From Owning Guns

Now both a violent and nonviolent felon have been found by lower courts to have a Second Amendment right to own weapons. The Supreme Court will likely consider the issue in the near future.

The law barring felons from owning firearms suffered another significant judicial blow in a decision yesterday in U.S. v. Bullock. Generally knows as the “felon in possession law,” U.S. Code 922(g)(1) prohibits firearm ownership for those found guilty of a crime punishable by imprisonment for a term exceeding one year. Jessie Bullock filed a motion in August 2022 to have such charges against him dismissed, and Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi granted that motion yesterday.

Bullock had served about 15 years in state prison for manslaughter and aggravated assault after killing someone in a 1992 bar fight. The government indicted him in 2018, when he was 57 years old, for possessing a firearm despite his felon status, and wanted to give him another 10 years.

As Reeves sums up the history of Bullock’s felon-in-possession case, a magistrate judge thought it was “‘downright silly’ to claim that Mr. Bullock ‘poses a danger to his wife, contrary to her own sworn testimony, contrary to the time that he’s been out on bond from this very incident’….Mr. Bullock has remained on bond ever since, without incident.”

Bullock’s claim, as Reeves put it, is that since 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,” the charge against him violated his Second Amendment right to keep and bear arms.

Reeves explicitly says that his decision involves an “as applied” challenge to 922(g)(1). He states outright that despite dismissing the case against Bullock, “the federal government may continue to prosecute other persons for violating § 922(g)(1).”

Still, the arguments he presents make a strong case for saying the law is unconstitutional in its entirety as written.

Reeves’ reasoning is based on the 2022 Bruen decision, which overturned some New York restrictions on the public carrying of weapons. That case declared that to stand up under Second Amendment scrutiny, a law must be “consistent with this Nation’s historical tradition of firearm regulation.” (Reeves makes it clear with near-sarcasm throughout the decision that he wishes the Supreme Court had not set the precedent requiring him to dismiss the case against Bullock; he has done this kind of “you idiots in the Supreme Court made me do this ridiculous thing” decision making in an earlier case upholding qualified immunity for a police officer, as Billy Binion reported here at Reason in 2020.)

Reeves cannot help (though he clearly would like to) but notice that the 120 previous U.S. district court cases the federal government relied on to prove that such laws are totally constitutional do not adequately demonstrate the required post-Bruen “historical tradition” to prop up the law. “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,” Reeves notes.

Reeves also spells out later in his decision that the Justice Department has itself admitted in filings in other cases that the felon-in-possession law is, as stated in particular in an appellee brief in U.S. v. Pettengill, “firmly rooted in the twentieth century and likely bears little resemblance to laws in effect at the time the Second Amendment was ratified.”

The facts that lead Reeves to toss the case against Bullock are surprisingly simple: “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.”

That bald statement does imply to this layman that the law should not be able to stand any constitutional scrutiny, though Reeves insists he’s not saying that. His granting an actual violent felon, Bullock, the right not to be prosecuted for owning a gun follows on a June en banc decision from the 3rd Circuit in the case of Range v. Attorney General. That decision found the law unconstitutional as applied to a particular nonviolent felon who had merely lied on a food stamp application and never actually spent a day in jail—though he could have been sent up for more than a year, per 922(g)(1).

Reeves says there might be room for states to do things the federal government should not, or to legitimately keep certain felons from owning guns, even after Bruen; he posits that “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….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.”

Reeves made news in this case last November by passive-aggressively complaining that he might need to appoint a historian to assist him in understanding the case, since the Bruen decision requires him to “play historian in the name of constitutional adjudication.” Neither party in the case agreed that this was necessary; Bullock’s team asserted that it was the government’s burden to prove the historical validity of the felon possession laws, and the government just insisted that “the prohibition against felons possessing firearms is so thoroughly established as to not require detailed exploration of the historical record.”

Reeves did not agree.

To preview how the Supreme Court might ultimately consider the issue Reeves’ decision has brought to renewed prominence, he quotes extensively from a pre–Supreme Court dissent from now-Justice Amy Coney Barrett in the 2019 7th Circuit decision Kanter v. Barr, in which she agrees that sweeping prohibitions on all felons, though possibly not demonstrably dangerous ones, should not stand under the Second Amendment. (Rickey Kanter got a Trump pardon.) Elsewhere in Reeves’ decision in Bullock, the judge quotes Bruen concurrences from Justices Samuel Alito and Brett Kavanaugh in which they both say out loud that Bruen in and of itself did not cast doubt on existing laws prohibiting felons from owning guns. Reeves thinks references by Justice Antonin Scalia in the 2008 Heller decision (which first established that the Second Amendment meant individual citizens had a right to keep commonly owned weapons for self-defense in the home; Bruen extended that to public carrying) to “law abiding, responsible citizens” are mere dicta with no power to prevent a decision like his.

Reeves goes on to somewhat slyly speculate about how the Supreme Court might look upon what he’s done, while concluding that “this Court will refrain from counting the Justices’ votes today.”

But Reeves does explain that “another common method of denying these motions”—that is, previous motions such as Bullock’s that did not succeed—”is to tally the felon‐in‐possession votes implied by Bruen‘s concurrences and dissent. Recall that in these separate opinions, six Justices endorsed felon disarmament. Five of those Justices are still on the Court. As a result, some district courts have assumed that as a simple matter of realpolitik, there is no chance the Supreme Court will find § 922(g)(1) unconstitutional in a future case….It certainly is tempting for busy trial judges to try and resolve complicated issues via this kind of calculation. But this Court cannot honor an advisory opinion on an issue that was not before the Supreme Court.”

Some facts about felon-in-possession laws from FY 2021 from the U.S. Sentencing Commission (USSC): 7,454 such convictions came before the USSC, and the number from 2017 through 2021 was always over 6,000 a year.

Over 97 percent of such violators were men, 56 percent were black, 95 percent were U.S. citizens, and their average age was 34. Over 96 percent of such offenders were sentenced to prison, with an average sentence of 60 months.

Through a complicated point system, the USSC divides offenders’ “criminal history category” into six categories; of those sentences under 922(g)(1), 39 percent were in one of the three lower categories.

While the figures cannot be known for certain, one analysis surmises up to 100,000 convicted felons in the U.S. still own guns, despite the fact that the federal government insists (and most courts agree) that it is categorically illegal to do so—although this Bullock decision and the 3rd Circuit’s Range decision are chipping away at that certainty. source

Judge doesn’t need historian to review gun law, say prosecutors, defense counsel

U.S. District Judge Carlton Reeves appears before the U.S. Senate Judiciary Committee in Washington, D.C., on June 8, 2022. U.S. Senate/Handout via

Prosecutors and defense lawyers are in rare agreement that a federal judge in Mississippi should not take the unusual step of appointing a historian to help him decide whether a federal firearms law complies with the U.S. Supreme Court’s landmark ruling in June expanding gun rights.

The opposing sides in briefs filed on Monday laid out their views after U.S. District Judge Carlton Reeves in a blistering opinion in October criticized the Supreme Court’s ruling, which changed the framework courts must use to evaluate gun regulations.

That decision, New York State Rifle & Pistol Association v. Bruen, declared for the first time that the U.S. Constitution’s 2nd Amendment protects an individual’s right to carry a handgun in public for self-defense. The 6-3 ruling powered by the court’s conservative majority instructed courts going forward to undertake a review of history to determine if gun restrictions are “consistent with the Nation’s historical tradition of firearm regulation.”

The ruling has led to a series of lower-court decisions declaring various gun restrictions unconstitutional and provided the grounds for a criminal defendant before Reeves in Jackson, Mississippi, Jesse Bullock, to challenge the federal ban on felons possessing firearms.

In an Oct. 27 opinion, Reeves, an appointee of former Democratic President Barack Obama, faulted the Supreme Court’s history requirement, saying he and other judges were not “trained historians.”

“And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791,” Reeves, who is Black, wrote. “Yet we are now expected to play historian in the name of constitutional adjudication.”

Reeves then asked the parties whether he should appoint a historian as a consultant to help him “identify and sift through authoritative sources on founding‐era firearms restrictions” as he weighed tossing the criminal case against Bullock.

But in filings late Monday, both sides said a historian was “unnecessary,” with prosecutors saying the judge should look to the parties themselves to provide support for their positions on whether the statute is constitutional.

Bullock’s lawyer, Assistant Federal Public Defender Michael Scott, said appointing a historian would wrongly relieve the government of its burden to establish the law was constitutional.

Prosecutors in the U.S. Department of Justice also raised a prospect they did not desire: Other judges following Reeves’ lead.

“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,” prosecutors wrote.

The case is United States v. Bullock, U.S. District Court for the Southern District of Mississippi, No. 3:18-cr-00165.

For the United States: Gaines Cleveland and Jessica Terrill of the U.S. Attorney’s Office for the Southern District of Mississippi

For Bullock: Michael Scott of the Office of the Public Defender

source

The Reeves Process

A federal judge in Mississippi takes up the Supreme Court’s challenge to ‘play historian.’

What a constitutional contest is opened by the remarks of Judge Carlton Reeves of the United States District Court at Jackson, Mississippi. His Honor is complaining that the justices of the Supreme Court want the lower courts to “play historian.” This arises because of Justice Clarence Thomas’s remarks about the Second Amendment, and now Judge Reeves is talking about hiring a historian to fight — so to speak — fire with fire.

In New York State Rifle & Pistol Association v. Bruen, Justice Thomas signaled that only restrictions “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster. The justice offered his own historical precis as ballast to the majority’s holding that the Empire State’s permitting regulations on concealed carry were unconstitutionally arduous. We look, the justice instructed, to “history and tradition.”

It fell to Judge Reeves to parse what this ruling issued from the constitutional mountaintop signified for the case he was adjudicating in the statutory valley. It was a case that concerned the ability of convicted felons to bear arms. He lamented that the Nine conscripted him to “play historian in the name of constitutional adjudication” and, in a seeming swipe, suggested that the “justices of the Supreme Court, as distinguished as they may be, are not trained historians.” source

Learn more about your gun rights:

Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi

US, v. Jessie Bullock – Federal Judge Tosses Gun Possession Case Against Convicted Felon

New York State Rifle and Pistol Association v. Bruen

Can a Convicted Felon Own a Gun in CA?

The Truth News — Fri, 09 Jun 2023 07:28:55 +0000

Can a Convicted Felon Own a Gun in CA?

How Long Before a Convicted Felon Can Own a Gun in California?

Restoring gun rights in California is not easy, and often it is not even possible. Theoretically, if you are convicted of any felony, then you are subject to a lifetime ban.

Conviction of certain misdemeanors also results in a lifetime ban, while conviction of other misdemeanors results in a ban of only ten years.

Nevertheless, there are two loopholes that will allow you to recover your gun rights under certain very limited circumstances.

Loophole #1: Converting A “Wobbler” Offense To A Misdemeanor After The Fact

A “wobbler” offense is an offense that can be charged as either a misdemeanor or as a felony, depending on the circumstances.

The receipt of stolen property is an example of an offense that is considered a “wobbler” offense in California, depending on the value of the stolen property that you received.

One way to regain your gun rights in California is to convert a “wobbler” offense from a felony to a misdemeanor. Under certain circumstances it is possible to do this after you have already been convicted of a felony, so you will no longer be a convicted felon.

If you do this, the extent of your loss of gun rights will depend on the penalties for that particular misdemeanor. In other words, you might become eligible to own a gun again.

Loophole #2: Seek A Pardon From The Governor Of California

A pardon relieves you from any further penalty for a crime. If you are in prison, for example, you can walk free with a pardon. A pardon does not exonerate you from the crime.

It only relieves you of its consequences. Remember, the Governor of California can only pardon you for a state law offense, not for a federal offense. Likewise, only the governor is qualified to pardon you for a state law offense.

The governor enjoys nearly 100 percent discretion in the decision of whether to issue you a pardon. In most cases, you must have lived in California for at least seven years.

You must also have been free of involvement in any criminal activity for at least 10 years. The governor can deny your pardon request for almost any reason, or for no reason at all.

If you live in California: Petition the Superior Court for a pardon

If you live in California, you must undergo a two-step process:

Submit a petition to a California Superior Court for a California certificate of rehabilitation. This is not a pardon, but you can use it to qualify for a pardon.
If the Superior Court grants your petition, your California certificate of rehabilitation will become a petition for a pardon from the governor.

If you live outside of California: Apply directly to the Governor for a pardon

If you live outside of California, you cannot seek a pardon by petitioning a Superior Court for a California certificate of rehabilitation. Instead, you must apply directly to the Governor’s Office.

When You Cannot Recover Your Gun Rights

No legal loophole can restore your right to own a gun in California if you committed a felony involving:

Domestic violence, or
The use of a “dangerous weapon” (not necessarily a gun).

Check the laws of other states to see whether you can possess a gun outside of California. source

How Can A Convicted Felon Receive Firearm Rights?

The Second Amendment of the U.S. Constitution guarantees the right of all U.S. citizens to bear arms except in certain circumstances. One of these circumstances is if you are a convicted felon. Felons often find it difficult to have applications for firearm rights accepted, especially if they were convicted of violent crimes. For felons with a criminal record, it is harder but not impossible to legally own a gun. They just need to go through the necessary bureaucratic and legislative processes. So, how can a convicted felon receive firearm rights?

State vs. Federal Gun Restoration Laws

Under federal law, convicted felons lose their firearm rights, which is a decision that stemmed from a law developed in 1934. At that time, the federal government mandated that no person convicted of a felony involving violence would be able to have his or her firearm rights restores. Since the Gun Control Act was passed in 1968, anyone convicted of a felony – whether or not it involved violence – loses his or her firearm rights.

However, state laws may differ from those at the federal level. Varying state by state, gun restoration laws offer convicted felons opportunities to regain their firearm rights, and in some places, it is easier than others.

For instance, in Indiana, a person can petition to the courts to have their firearm rights restored, and in Kentucky, a convicted felon can apply for expungement – but not until five years after his or her sentence has been completed.

All in all, if you are looking to have your firearms rights restored, be sure to look into your state’s laws to ensure you are proceeding legally, with the correct information.

Step One: Figure Out Who Charged You With The Crime

Depending on whether the felony was a state or federal offense, a convicted felon’s process of getting the rights to bear arms will vary. This is known as adjudication and will involve contacting the Department of Justice in the state or one of several federal agencies.

Ways to getting Firearm Rights Restored

Many states and agencies have an existing form for felons to apply to have their civil rights restored. Generally speaking, these forms will only be accepted if the person can prove that their life has changed and that they are reformed. The person may be required to show proof such as a steady job and ties to the community, and they may need to wait a significant amount of time before being allowed to apply. The process involves finding this form and filing it with the appropriate authorities.

1. Felony Expungement

As previously stated, some states will allow convicted felons a second chance. Apply for felony expungement means the felon’s criminal records will be erased (as though the crime never happened), thus restoring his or her rights to purchase and carry a firearm (if applicable in his or her state of residence).

Check your state’s website to determine what makes someone eligible for expungement, and discuss further with an attorney that is able to analyze your particular situation. If you are eligible for expungement in your state, you must first file a petition with the courthouse.

After the proceedings, your record may be expunged, in which case you may be able to restore your firearm rights.

2. Petition for Restoration of Firearm Rights

Lastly, in some states, you may be eligible for a Petition of Restoration of Firearm Rights. Typically, the state will only consider you if you were charged with a crime unrelated to violence.

3. Governor’s Pardon

Several states like California, Louisiana, New Jersey, New York, and Oklahoma will restore a convicted felon’s firearm rights if he or she receives a governor’s pardon. To receive a Governor’s Pardon, you must apply through your state of residence – but only if you are eligible.

Here’s how to apply for a Governor’s Pardon.

4. Federal Pardon

The only other federal recourse is to petition for a presidential pardon. This process requires the assistance of a lawyer and can restore a variety of civil rights including the right to hold public office in addition to the right to bear arms.

Potential Pitfalls

It is easier to get civil rights restored if a felony conviction was given by a state court rather than a federal court. However, a problem arises when state laws conflict with federal laws, which are often stricter and may take precedence even if the conviction was ruled by state authorities.

If this is the case or if a felon had his conviction given by a federal agency, they will have to file with the:

U.S. Attorney General’s office
The Bureau of Alcohol, Tobacco, and Firearms

The agency will then review an application to restore the rights to bear arms. The problem then becomes that this agency is notorious for simply failing to review the documents, leaving former convicts in a sort of legal limbo while waiting for their firearm rights to be restored. This is the case even if felons were not guilty of violent crime convictions. source

How to Restore Your Gun Rights After a Criminal Conviction

California’s firearms laws are strict and federal laws are even stricter. If you are convicted of a felony or certain misdemeanors, you will lose your right to possess a gun in California.

You also may not own or possess a gun if you are:

addicted to narcotics drugs,
mentally ill,
involuntarily committed on a psychiatric hold twice in one year,
under the age of 18,
prohibited from possessing a gun by court order or as a condition of probation, or
prohibited by federal law from possessing a gun.

Conviction of a felony results in a lifetime ban on gun possession.

Conviction on most misdemeanor charges does not prohibit you from having a gun. But a few weapons-related misdemeanor convictions do subject you to a lifetime ban. Two convictions for brandishing a firearm… or just one conviction for assault with a firearm conviction…will cost you your gun rights for life.

In addition, approximately 40 misdemeanors carry a 10-year firearms ban. These include:

assault,
battery,
brandishing a weapon, and
making criminal threats.

Restoring your Second Amendment right to bear arms can be difficult and complicated. We urge you to read the full article, below, for complete information.

In general, however, it may be possible for your gun rights to be restored following a conviction as long as it was not for:

a felony involving a dangerous weapon, or
a crime of domestic violence.

There are two basic ways to have gun rights restored after an eligible conviction:

by having a “wobbler” felony reduced to a misdemeanor, or
by receiving a pardon from the California governor.

A “wobbler” is an offense that can be charged as either a felony or a misdemeanor. If you were convicted of a wobbler as a felony, you can petition the court to have it reduced to a misdemeanor. Once your felony is reduced you will be subject only to the restriction — if any — that the crime carries as a misdemeanor.

The second way to have your Second Amendment right to bear arms restored after a California conviction is through a pardon by the governor.

You must apply directly to the governor for a pardon if:

you live outside California, or
you were convicted of certain misdemeanor sex offenses.

Otherwise, obtaining a pardon is a two-step process:

Petition the superior court for a California Certificate of Rehabilitation.
If the petition is granted, it automatically becomes a petition for a pardon from the California Governor.

California’s governor has complete discretion to grant or deny pardon requests. Generally, applicants must have resided for a minimum of seven years in California. They must also have had no criminal involvement for at least 10 years.

We are a criminal defense firm with offices throughout California and Nevada. As former cops and prosecutors, we have first-hand knowledge of California’s gun laws. And we know what it takes to restore your right to bear arms.

1. California Firearms Restrictions

Before we discuss how to restore your gun rights, let’s review what can make you lose them in the first place.

California law does not require most adults to obtain a license to purchase, receive, own, or possess a gun.

Five categories of individuals, however, are banned from exercising gun rights in California:

felons (that is, anyone convicted of any felony offense in any jurisdiction);
persons convicted of certain misdemeanor offenses (see below);
narcotics addicts;
persons who suffer from mental illness; and
minors (anyone under 18).

Let’s take a closer look at each of these categories.

1.1. Lifetime ban — felonies and weapons-related misdemeanors

Penal Code 29800 PC is California’s “felon with a firearm” law. It imposes a lifetime firearms ban on anyone who has been convicted of a felony offense in any state or country.

This lifetime ban also applies to people with certain misdemeanor convictions:

people with two or more misdemeanor convictions for Penal Code 417(a)(2) PC, California’s “brandishing a firearm” law; and
people with just one misdemeanor conviction for:
- California Penal Code 245(a)(2), assault with a firearm;
- California Penal Code 245(a)(3), assault with a machine gun or assault weapon;
- California Penal Code 245(d) assault with a firearm against a peace officer;
- California Penal Code 246 PC, shooting at an inhabited dwelling or car; or
- California Penal Code 417(c), “brandishing a firearm” at a peace officer.

The lifetime ban also applies to minors who were convicted of any of the above offenses when tried as adults.

1.2. 10-year ban – specified misdemeanors

Generally speaking, a misdemeanor conviction does not trigger a gun restriction. However, under California Penal Code 29805 PC, there are about 40 specific misdemeanor convictions that carry a ten-year firearms ban.

They are:

1.2.1. Assault

Penal Code 240 and 241 PC – assault.
Penal Code 244.5 — assault with a stun gun or less-lethal weapon (as defined in Penal Code 16780).
Penal Code 245 — assault with a deadly weapon or firearm.
Penal Code 245.5 — assault with a deadly weapon or firearm against a school employee.

1.2.2. Battery

Penal Code 242 PC — battery.
Penal Code 243 – spousal battery.
Penal Code 243.4 PC — sexual battery.
Penal Code 273.5 PC – infliction of corporal injury on a spouse / mate.

1.2.3. Domestic violence

Penal Code 646.9 PC — stalking.
Penal Code 273.6 — violation of a protective order.

1.2.4. Peace officers

Penal Code 148(d) — taking a firearm from a peace officer.
Penal Code 830.95 — wearing a peace officer uniform while engaged in picketing.

1.2.5. Threats and intimidation

Penal Code 422 PC — criminal threats.
Penal Code 71 and Penal Code 76 – threats to public officials and/or their families.
Penal Code 136.1 — intimidation of witnesses and victims.
Penal Code 136.5 — possession of a deadly weapon with intent to use it to intimidate witnesses.
Penal Code 140 — threats of force against witnesses, victims or informants.

1.2.6. Weapons / ammunition offenses

1.2.6.1. Brandishing a weapon:

Penal Code 417 — brandishing a deadly weapon.
Penal Code 417.6 — brandishing a deadly weapon with the intent to inflict serious bodily injury.

1.2.6.2. Discharging a firearm

Penal Code 246.3 — negligent discharge of a firearm or BB gun.
Penal Code 247(a) — willful discharge of a firearm at an unoccupied aircraft.
Penal Code 247(b) — discharge of a firearm at an unoccupied motor vehicle, building or dwelling house.
Penal Code 26100(b) and (d) — discharging or permitting another to discharge a firearm from a motor vehicle.

1.2.6.3. Possession of weapons

Penal Code 171b — possession of weapons in public buildings or meetings.
Penal Code 171c(a)(1) — possession of a loaded firearm within the state capitol or legislative offices.
Penal Code 171d — possession of a loaded firearm within the governor’s mansion or the residence of state officials.
Penal Code 626.9 — possession of a firearm in a school zone.
Penal Code 17500 — possession of a deadly weapon with the intent to commit assault.
Penal Code 17510 — possession of a deadly weapon or firearm while picketing.
Penal Code 25300 — criminal possession of a firearm (possession of a firearm in a public place while masked).
Penal Code 25800 — armed criminal action (possession of a firearm with the intent to commit a felony).
Penal Code 30315 — possession of metal-piercing or armor-piercing ammunition.
Penal Code 32625 — possession of a machine gun.
Welfare and Institutions Code 8100 — possession of a firearm or deadly weapon by certain persons with mental disorders.
Welfare and Institutions Code 8103 — possession of a firearm or deadly weapon by mentally disordered sex offenders or persons adjudged to be a danger to others.

1.2.6.4. Sale or transfer of weapons

Penal Code 186.28 — sale or transfer of a firearm to a gang member for use in a felony.
Former Penal Code 12100(a) — sale of concealable firearms to juveniles.
Penal Code 27510 — sale or transfer of a firearm to a person under 18.
Welfare and Institutions Code 8101 — sale or transfer of a firearm or deadly weapon to certain persons with mental disorders.
Welfare and Institutions Code 871.5 and 1001.5 — bringing or sending a firearm into a juvenile hall or camp or a Youth Authority institution.
Penal Code 27590(c) — illegal sale or transfer of a firearm.

You may petition the court to have gun rights restored before the 10-year period is up if:

you were convicted of one of the above misdemeanors prior to its being added to Penal Code 29805 PC, and
you do not have a previous conviction under Section 29805, no matter when the prior conviction occurred.

You may petition for this relief on a one-time basis only. The court may grant it if it finds that you are likely to use a firearm in a “safe and lawful manner.”

1.3. Narcotics addicts

People who are addicted to a narcotic drug are prohibited from possessing firearms.

Federal law imposes a ban on this category of persons as well (see below).

If you are “addicted” to a narcotic drug, it means that you are both emotionally and physically dependent on the drug and have an increased tolerance to its effects.

1.4. People suffering from mental illness

People with a mental illness are banned from possessing firearms as follows:

during any period in which they are receiving voluntary in-patient treatment for being a danger to themselves or others;
while under a conservatorship because gravely disabled as a result of a mental disorder or impairment by chronic alcoholism;
for 6 months following a serious threat of physical violence against a reasonably identifiable victim or victims;
for a period of five years following release from an involuntary commitment to a mental hospital for being a danger to oneself or others;
for life after two involuntary commitments in a year; or
for an indefinite period of time if they fall into one of the categories set forth below.

People banned for an indefinite period may not have a gun until they receive a certificate stating that they are no longer a threat to society. After receiving their certificate, such people may petition to have their gun rights restored.

The people subject to this requirement are:

those adjudicated by a court of any state to be a danger to others because of a mental disorder or mental illness,
those adjudicated by a court of any state to be a mentally disordered sex offender;
people declared incompetent to stand trial; and
those who have pleaded not guilty to a non-violent crime by reason of insanity.

People who have pleaded not guilty to certain violent crimes by reason of insanity are subject to a lifetime ban on firearm possession.

Such crimes include (but are not limited to):

murder,
mayhem,
rape,
residential burglary,
arson of an inhabited dwelling, and
other felonies involving death or great bodily injury.

Note that federal law imposes its own restrictions on this class of individuals as well.

Thus certain people subject only to a five-year restriction in California may face a lifetime ban under federal law.

Please see Section 2, below, for a more complete discussion of federal law. Also, see California Assembly Bill 1968 (2018).

1.5. Minors

Minors are prohibited from owning, possessing, purchasing, or receiving guns. Unless subject to another firearm restriction, people may first possess guns as follows:

rifles and shotguns: once they reach the age of 18, and
handguns: once they reach the age of 21.

Minors who have been convicted of certain offenses and are adjudged a ward of the juvenile court as a result of their conviction may not possess a firearm until the age of 30.

Such offenses include (but are not limited to):

designated California drug offenses,
specific crimes of violence, and
certain firearms offenses (including California Penal Code 25400 PC — carrying a concealed weapon and California Penal Code 25850 PC — carrying a loaded firearm.)

1.6. Those under court-imposed restrictions

California courts have the right to impose additional firearms restrictions under two scenarios.

The first is when a judge revokes your gun rights as a specific condition of California probation. The second is when you are the subject of a court-issued protective order.

While you are subject to such restrictions, you are prohibited from owning, possessing, purchasing, or receiving a firearm.

1.7. Personal firearms eligibility check

It is possible to check your firearms eligibility status with the California Department of Justice.

You do not need to disclose your possession of any firearm in order to do so.

The cost for such an eligibility check is $20. The Personal Firearms Eligibility Check Application form is available on the DOJ’s website.

2. Federal Gun Restrictions

2.1. People prohibited from owning a gun under federal law

Federal law imposes its own set of firearms restrictions on certain classes of people.

You are prohibited under federal law from possessing a gun if:

you are under indictment for, or have been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

you are a fugitive from justice;
you are an unlawful user of or addicted to any controlled substance;
you have been adjudicated as a mental defective or have been committed to any mental institution;
you are unlawfully in the United States;
you have been discharged from the Armed Forces under dishonorable conditions;
you have renounced your U.S. citizenship;
you are subject to a protective order for stalking or representing a threat to an intimate partner or child; or
you have been convicted in any court of a misdemeanor crime of domestic violence.

2.2. The conflict between federal and California law

Many of these federal firearms restrictions are identical to those imposed by California law. However, when federal and California gun laws conflict, the federal laws prevail. In such a case, California gun laws may as well not even exist.

2.2.1. Misdemeanor crimes of domestic violence

One area in which differences arise is after a conviction for a misdemeanor crime of domestic violence (“MCDV”).

State law restores California gun rights to an individual convicted of MCDV once a 10-year restriction expires. However, federal law imposes a lifetime firearms ban after such a conviction.

At present, the only way to remove a federal firearms ban is by Presidential pardon. However, presidential pardons are rarely granted.

As a practical matter, therefore, if you are convicted of MCDV in any court, you will never be able to possess a gun legally in California. The only way to avoid the federal lifetime ban is to avoid a domestic violence conviction in the first place.

For a more complete discussion, visit our page on domestic violence convictions & California gun rights.

2.2.2. Mental illness

California and federal law also conflict in their treatment of mental illness.

California law imposes a five-year firearms ban following involuntary commitment for being a danger to oneself or others.

But federal law provides a lifetime ban on gun ownership by anyone adjudicated a mental defective or committed to a mental institution. As a result, once you have been admitted to a mental institution, it is not possible for you to possess a gun legally in California or anywhere else.

If you have been convicted of a California felony involving a dangerous weapon, there is no way to restore your firearms rights.

3. How to restore your California gun rights

If you have been convicted of a California felony involving a dangerous weapon, there is no way to restore your firearms rights. California law defines “dangerous weapon” as any weapon, instrument, or object capable of being used to inflict great bodily injury or death.

And, as noted, federal law prevents California from restoring your gun rights under certain circumstances, including (without limitation):

you have been convicted of a crime of domestic violence,
you have been adjudicated a mental defective or confined to an institution, or you are an abuser or unlawful user of a controlled substance.

Otherwise, depending on the type of conviction, there are two ways to restore your California gun rights:

by reducing a felony “wobbler” conviction to a misdemeanor, or
by obtaining a California gubernatorial pardon.

3.1. Reducing a felony “wobbler” to a misdemeanor

A “wobbler” offense is a crime that can be charged as either a felony or a misdemeanor, in the prosecutor’s discretion.

If you were convicted of a qualifying felony wobbler, you can regain your gun rights by reducing your California felony to a misdemeanor.

For the most part, qualifying wobblers are those for which you were sentenced to county jail and/or probation.

The following are not qualifying offenses:

“straight” felonies… that is, crimes that may only be charged as a felony;
felonies involving the use of a dangerous weapon;
felonies for which you were sentenced to California prison;
misdemeanors that subject you to a 10-year gun restriction;
domestic violence convictions; and
drug offenses that classify you as a “narcotics addict.”

Eligible felony wobbler charges can be reduced at any time. Thus you can file a petition if:

you were convicted of a wobbler felony and are still on probation (although you will first need to file a petition to have your probation terminated);
you were convicted of a felony and are done with probation and/or county jail time; or
you were convicted of a felony and were never given any probation at all but were sentenced to county jail.

If the court reduces your felony to a misdemeanor, your right to possess a firearm will generally be restored. However, if the misdemeanor is one that subjects you to a ten-year gun restriction, you will need to wait out the ten years before you may possess a gun.

3.2. California Certificate of Rehabilitation / Governor’s pardon

The second way to restore your California gun rights is by a pardon from California’s governor.

Not all pardons restore gun rights. The pardon must specifically be “full and unconditional,” or provide you are entitled to exercise the right to possess a gun.

A pardon is not the same as an expungement. A pardon will not seal or erase your criminal record or the record of your conviction. It can, however, restore to you certain rights, including (without limitation) the right to possess a gun.

3.2.1. Who is eligible to apply for a California gubernatorial pardon?

If you were convicted of a California felony that is ineligible for reduction to a misdemeanor, you may be able to receive a gubernatorial pardon. People convicted of misdemeanor sex crimes are also eligible.

The main requirement for a gubernatorial pardon is exemplary behavior for a long period of time. Generally, an application for a pardon will not be considered unless you have been discharged from probation or parole for at least 10 years without further criminal activity during that period.

Only California crimes may be pardoned by California’s governor.

If you were convicted in another state, you must apply for a pardon in that state. If convicted of a felony under federal law, you must apply for a Presidential pardon.

3.2.2. California Certificate of Rehabilitation

A Certificate of Rehabilitation (“COR”) is a court order that declares you rehabilitated of your crime. If you meet the following criteria, you must apply for a COR before seeking a pardon:

you were convicted of a California felony, and
you currently reside in California.

A Certificate of Rehabilitation does not, by itself, restore California gun rights. You must still receive a gubernatorial pardon. If you are granted a COR, it automatically becomes an application for a California governor’s pardon. You do not need to do anything more.

Application for a Certificate of Rehabilitation is made to the superior court in the county where you live. To apply, you must have resided in California for at least five (5) years after the earliest of:

discharge from custody due to completion of your sentence, or
your release on parole or probation…

plus…

an additional period of two (2) to five (5) years, depending on the underlying offense.

You are not eligible for a California Certificate of Rehabilitation if:

you are serving mandatory life parole,
you were committed under a death sentence, or
you committed certain sex acts with a child.

3.2.3. Application for a direct pardon

If you are ineligible for a Certificate of Rehabilitation, you may apply for a direct pardon.

This procedure is used primarily by people who:

were convicted of a crime in California and now reside outside the state, or
people who have been convicted of specified misdemeanor sex offenses.

An application for a direct pardon will not normally be considered unless you have been discharged from probation or parole for at least 10 years. You must also not have had any further criminal activity during that period.

Upon demonstration of truly exceptional circumstances… such as actual innocence… the 10-year rule may be waived.

Applications for a direct pardon are available at the California Governor’s website. You may also request an application by writing to:

Governor’s Office

State Capitol

Attention: Legal Affairs

Sacramento, CA 95814

After you have completed the application, you must send the Notice of Intent to Apply for Executive Clemency to the district attorney of each county in which you were convicted. This is a legally-required notice.

The District Attorney will return the notice to the Governor’s Office and send you an acknowledgment. Once you receive it, you can return the completed application to the Governor’s Office at the address listed above.

3.2.4. Governor’s discretion re: the issuance of pardons

The governor has complete discretion in deciding whether to grant a pardon. This is true for both direct pardons and pardons after issuance of a Certificate of Rehabilitation.

An exception is if you have two (2) or more felony convictions. In such a case, the Governor of California may not grant you a pardon… unless… a majority of justices of the California Supreme Court recommend one. The Governor has no obligation, however, to seek such a recommendation from the court.

As noted, not all pardons restore gun rights. The pardon must specifically provide you are entitled to exercise the right to possess a gun.

3.3. Expungement of a California criminal record

Expungement of a criminal record in California does not remove the ban on owning or possessing firearms.

Expungement refers to the process of:

withdrawing a plea of guilty or no contest, and
having the case dismissed, after successful completion of probation … or, if applicable… jail and parole.

The main benefit of expungement is that you do not have to disclose an expunged conviction on most job applications. But, as noted, expungement does not restore gun rights. If you wish to possess a gun following expungement of a criminal record, you must still follow the steps set forth above.

In addition, not all offenses can be expunged. If you were sent to California state prison, or you are guilty of a serious sex offense, you do not qualify for expungement. source

Legal References:

Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
California Penal Code 25605 (b) — No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Chapter 2 (commencing with Section29800) or Chapter 3 (commencing with Penal Code Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and InstitutionsCode, to purchase, own, possess, keep, or carry, either openly or concealed, a handgun within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.
But see California Penal Code 29800(c) — Subdivision (a) shall not apply to a person who has been convicted of a felony under the laws of the United States unless either of the following criteria is satisfied:
(1) Conviction of a like offense under California law can only result in imposition of felony punishment.
(2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments.
California Penal Code 29800 PC(a) –
(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Penal Code 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
(2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
California Penal Code 29800(b) — Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 23515, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in possession or under custody or control any firearm is guilty of a felony.
California Penal Code 29805 PC. Except as provided in Section 29855 or subdivision (a) ofSection 29800, any person who has been convicted of a misdemeanorviolation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) ofSection 148, Section 171b, paragraph (1) of subdivision (a) ofSection 171c, 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 245,245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, or830.95, subdivision (a) of former Section 12100, as that section readat any time from when it was enacted by Section 3 of Chapter 1386 ofthe Statutes of 1988 to when it was repealed by Section 18 ofChapter 23 of the Statutes of 1994, Section 17500, 17510, 25300,25800, 30315, or 32625, subdivision (b) or (d) of Section 26100, orSection 27510, or Section 8100, 8101, or 8103 of the Welfare andInstitutions Code, any firearm-related offense pursuant to Sections871.5 and 1001.5 of the Welfare and Institutions Code, or of theconduct punished in subdivision (c) of Section 27590, and who, within10 years of the conviction, owns, purchases, receives, or has inpossession or under custody or control, any firearm is guilty of apublic offense, which shall be punishable by imprisonment in a countyjail not exceeding one year or in the state prison, by a fine notexceeding one thousand dollars ($1,000), or by both that imprisonmentand fine. The court, on forms prescribed by the Department ofJustice, shall notify the department of persons subject to this section. However, the prohibition in this section may be reduced, eliminated, or conditioned as provided in Section 29855 or 29860.
See same.
California Penal Code 29860 PC.
Same.
Same.
California Penal Code 29800(a)(1), endnote 4, above.
18 United States Code 922(d) — It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
People v. O’Neil (1965) 62 Cal.2d 748, 750. (“…we must reverse the judgment and remand the cause for a determination of whether the defendant is ‘addicted’ to the use of narcotics as we have defined that term in People v. Victor (1965) 62 A.C. 290, 312-315, 42 Cal.Rptr. 199, 398 P.2d 391; i. e., whether he exhibits the three characteristics of the addiction process: (1) ‘emotional dependence’ on the drug, (2) an increased ‘tolerance’ to its effects, and (3) ‘physical dependence’ manifested by withdrawal symptoms upon sudden termination of drug intake.”)
California Welfare and Institutions Code 8100(a).
California Welfare and Institutions Code 8103(e)(1).
California Welfare and Institutions Code 8100(b)(1).
California Welfare and Institutions Code 8103(f)(1).
See also California Welfare and Institutions Code 5150 regarding involuntary commitment.
California Welfare and Institutions Code 8103(a)(1).
Same.
California Welfare and Institutions Code 8103(d)(1).
California Welfare and Institutions Code 8103(c)(1).
California Welfare and Institutions Code 8103(b)(1).
The full list of crimes under California Welfare and Institutions Code 8103(b)(1) is: murder, mayhem, kidnapping (if the victim suffers intentionally inflicted great bodily injury), carjacking or robbery (if the victim suffers great bodily injury), arson of an inhabited dwelling or trailer coach, rape, first degree (residential) burglary, assault with intent to commit murder, assault with intent to commit mayhem or sex crimes (if the victim suffers great bodily injury), reckless or willful possession or explosion of an explosive device, and any felony involving death or great bodily injury, or an act which poses a serious threat of bodily harm to another person.
18 United States Code 922 (d) — It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(4) has been adjudicated as a mental defective or has been committed to any mental institution.
Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility under Welfare and Institutions Code sections 5150, 5151, 5152; or certified under Welfare and Institutions Code sections 5250, 5260, 5270.17; or certified under Welfare and Institutions Code sections 5250, 5260, or 5270.17, may be subject to a lifetime prohibition pursuant to federal law. See California Department of Justice, Bureau of Firearms, Firearms Prohibiting Categories.
California Attorney General’s Firearms Website, Frequently Asked Questions — Sales and Transfers of Firearms. “Although there are exceptions, generally all firearms purchasers must be at least 18 years of age to purchase a long gun (rifle or shotgun) and 21 years of age to purchase a handgun (pistol or revolver).”
California Penal Code 29820 PC.
California Penal Code 29815 PC.
California Penal Code 29825 PC. See also California Penal Code 1203.1 (j) — The court may impose…other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer…See also People v. Lent (1975) 15 Cal.3d 481, 486. (“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality…’” [citation omitted.])
California Penal Code 30105 PC.
See same.
Note that the federal gun ban applies to anyone who has been convicted of a crime that carries more than a year in prison whether or not that person actually served more than a year in prison. See California Penal Code 29800(c)(2).
18 United States Code 922(d).
See Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Firearms – Frequently Asked Questions; Office of Legislative Research, Research Report 2008-R-0617, Restoration of Right to Carry Firearms Under Federal Law, November 10, 2008.
See endnote 17, above.
18 USC 922(d).
California Penal Code 4854 PC. In the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 17800 and 23510 and Chapter 2 (commencing withSection 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.
See e.g., Judicial Council of California criminal Jury Instructions (2012) CALCRIM 511 and 3145:
[A dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
18 USC 922(d).
See People v. Gilbreth (2007) 156 Cal.App.4th 53. (” ‘[O]nce a court has reduced a wobbler to a misdemeanor pursuant to . . . section 17, the crime is thereafter regarded as a misdemeanor ‘for all purposes.’ This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring.’ (Gebremicael v. California Com. on Teacher Credentialing (2004) [156 Cal.App.4th 58] 118 Cal.App.4th 1477, 1483 (Gebremicael).) Accordingly, defendant’s possession of a firearm by a convicted felon must be reversed.”).
See State of California, Office of the Governor, How to Apply for a Pardon.
California Penal Code 1203.3.
California Penal Code 1203.4.
California Penal Code 1203.4a.
California Penal Code 4854, endnote 37, above.
See How to Apply for a Pardon, endnote 41, above.
The Supremacy Clause of the United States constitution, Article VI, provides:This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
See the United States Department of Justice, Office of the Pardon Attorney, Pardon Information and Instructions.
See California Penal Code 4852.01-4852.21.
See also, How to Apply for a Pardon, endnote 41, above.
People discharged or released on parole prior to May 13, 1943 and not incarcerated in a state penal institution since, have a three (3) year residency requirement. See California Penal Code 4852.01 PC (a).
California Penal Code 4852.03.
(a) The period of rehabilitation shall begin to run upon the discharge of the petitioner from custody due to his or her completion of the term to which he or she was sentenced or upon his or her release on parole or probation, whichever is sooner. For purposes of this chapter, the period of rehabilitation shall constitute five years’ residence in this state, plus a period of time determined by the following rules:
(1) To the five years there shall be added four years in the case of any person convicted of violating Section 187, 209, 219, 4500, or18755 of this code, or subdivision (a) of Section 1672 of the military and Veterans Code, or of committing any other offense which carries a life sentence.
(2) To the five years there shall be added five years in the case of any person convicted of committing any offense or attempted offense for which sex offender registration is required pursuant to section 290, except for convictions for violations of subdivision(b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or314. For those convictions, two years shall be added to the five years imposed by this section.
(3) To the five years there shall be added two years in the case of any person convicted of committing any offense that is not listed in paragraph (1) or paragraph (2) and that does not carry a life sentence.
(4) The trial court hearing the application for the certificate of rehabilitation may, if the defendant was ordered to serve consecutive sentences, order that his or her statutory period of rehabilitation be extended for an additional period of time which when combined with the time already served will not exceed the period prescribed by statute for the sum of the maximum penalties for all the crimes.
(5) Any person who was discharged after completion of his or her term or was released on parole before May 13, 1943, is not subject to the periods of rehabilitation set forth in these rules.
(b) Unless and until the period of rehabilitation, as stipulated in this section, has passed, the petitioner shall be ineligible to file his or her petition for a certificate of rehabilitation with the court. Any certificate of rehabilitation that is issued and under which the petitioner has not fulfilled the requirements of this chapter shall be void.
(c) A change of residence within this state does not interrupt the period of rehabilitation prescribed by this section.
California Penal Code 4852.01(d) — This chapter shall not apply to persons serving a mandatory life parole, persons committed under death sentences, persons convicted of a violation of subdivision (c) of Section 286, Section288, subdivision (c) of Section 287, Section 288.5, or subdivision(j) of Section 289, or persons in the military service.
California Penal Code 4852.01(e) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.
See also How to Apply for a Pardon, endnote 41, above.
See California Penal Code 4852.01(d), endnote 52, above.
See also California Penal Code 290, the “Sex Offender Registration Act,” which sets forth the sex crimes subject to PC 4852.01(d).
Same.
Same.
See also California Penal Code 4852.01(e).
See, How to Apply for a Pardon, endnote 41, above.
See same.
Penal Code 4852.16 — The certified copy of a certificate of rehabilitation transmitted to the Governor shall constitute an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein, except that, pursuant to Section 8 of Article V of the Constitution,the Governor shall not grant a pardon to any person twice convicted of felony, except upon the written recommendation of a majority of the judges of the Supreme Court.
People v. Ansell (2001) 25 Cal.4th 868, 891. (“However, regardless of which statutory application procedure is used, and notwithstanding any recommendation by the superior court, the pardon decision is discretionary, and rests ultimately with the Governor.”)
See also California Penal Code 4800 PC — Constitutional authority. (“The general authority to grant reprieves, pardons and commutations of sentence is conferred upon the Governor by Section 8 of Article V of the Constitution of the State of California.”)
See also California Constitution, Article V, Section 8(a) — Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, [California Governor’s] pardon, and commutation, after sentence, except in case of impeachment. The Governor shall report to the Legislature each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it. The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on the recommendation of the Supreme Court, 4 judges concurring.
See also California Penal Code 4802 PC — In the case of a person twice convicted of felony, the application for pardon or commutation of sentence shall be made directly to the Governor, who shall transmit all papers and documents relied upon in support of and in opposition to the application to the Board of Prison Terms.
See also California Penal Code 4813 PC — In the case of applications of persons twice convicted of a felony, the Board of Prison Terms, after investigation, shall transmit its written recommendation upon such application to the Governor, together with all papers filed in connection with the application.
See also How to Apply for a Pardon, endnote 41, above.
California Penal Code 4854 PC, endnote 37, above.
California Penal Code 1203.4(a)(2) [felony convictions] and 1203.4a(c)(2) [misdemeanor convictions] both provide that: “Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of title 4 of Part 6 [California’s felon with a firearm law].”)
California Penal Code 1203.4(a).
Same.
Same.
For more information, please see our article on the Consequences of a Felony Conviction.
California Penal Code 1203.4(b) — subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Vehicle Code 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.
Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada’s firearm laws and restoring your Nevada gun rights. Their Nevada law offices are located in Reno and Las Vegas.

RESTORE YOUR CALIFORNIA GUN RIGHTS

Being convicted of a crime under California State law can impact your Second Amendment right to keep and bear arms under both California and federal law. In general, a conviction for any felony offense will result in a lifetime ban on your ability to possess or own a gun.

Certain misdemeanors, such as those involving domestic violence or even drug offenses, may also result in temporary or lifetime bans depending on the conduct which gave rise to the conviction. In addition, you can’t legally own or possess a gun if you are addicted to drugs, under 18 years old, suffering from mentally illness, prohibited by court order as a condition of probation.

The California and federal laws concerning gun restrictions is complex, and require fact-specific analysis on a case-by-case basis to determine if any apply. Below you will find an overview of some of the options to restore your gun rights after they have been restricted due to California criminal conviction.

In general, there are two basic options to have your gun rights restored after a conviction. They include having your felony case reduced to a misdemeanor and receiving a pardon from the Governor of California.

It should be noted that while a reduction of your offense to a misdemeanor may provide relief under California state law, federal law does not recognize the effects of either post-conviction reductions of the level of offense or expungements pursuant to Penal Code Section 1203.4.

As almost all gun purchases occur through federally-licensed firearms dealers, the practical reality is that a federal ban on ownership will prohibit any ownership, even if gun rights are restored under California state law. Based on our experience, only a pardon from the governor of California is effective at restoring your pardon under federal law as a pardon renders the conviction a legal nullity.

It should also be noted our law firm does not handle this type of work, but this is the law in the area of restoring gun rights. We refer people to the Los Angeles County Bar Association and the San Fernando Valley Bar for further information and any work on the matter.

CALIFORNIA STATE LAW

Under California law, a Penal Code 17(b) reduction of a felony charge to a misdemeanor is usually the quickest and easiest to obtain option for restoring your gun rights under California law. Note that, as discussed below, these reductions will likely not impact the federal gun restrictions which may apply to your case.

Penal Code 17(b) reductions result in the prior felony conviction being treated as a misdemeanor for all purposes, including the prohibition against felons possessing firearms. Once a court has reduced a wobbler to a misdemeanor pursuant to section 17, the crime is thereafter regarded as a misdemeanor for all purposes.

This unambiguous language means what it says, and unless the Legislature states otherwise, a defendant stands convicted of a misdemeanor, not a felony case.

FEDERAL LAW

Federal law often overlaps with California law with respect to those individuals whose gun rights are restricted or removed completely due to prior convictions. The most common restriction which gives rise to federal prosecutions is felon in possession.

Federal law prohibits the possession or ownership of a firearm by felons, which it defines as anyone convicted in any court of an offense punishable by more than one year. Notice the two possibly counterintuitive points about this rule:

Your conviction may have come from any court. You do not need to be convicted of a federal felony to lose your gun rights under federal law; and
The crime need only be punishable by more than a year.

If you were granted probation or sentenced to only a few days in jail, but the statute under which you were convicted can possibly result in 366 days or more of confinement, you may lose your gun rights for life under federal law.

There is an exception to this rule for State crimes classified as misdemeanors which are punishable by less than two years in jail. Contact a Los Angeles criminal defense attorney from our office for more information.

Unfortunately, federal courts have held that Section 17(b) reductions, as discussed above, do not restore federal gun rights. In general, the courts will look to the original charge of conviction and, if it is even possible to be sentenced to greater than one year, the gun ban will apply.

This affects many California defendants who have been convicted of “wobblers.” In California, a wobbler is a crime which may be charged as either a misdemeanor or a felony. Section 17(b) is often used after the fact to reduce a felony conviction to the misdemeanor version of the same crime. While these reductions still provide substantial benefits to the defendant under California law, restoration of federal gun rights is not one of them.

The federal firearm restriction does contain an exception for convictions which have been expunged, but specifies that the exception does not apply if the State law expungement procedure does not restore gun rights.

Once again, California residents are unlucky as Penal Code 1203.4, the expungement provision, explicitly states that it does not restore gun rights to those whose cases are dismissed pursuant to its provisions. Therefore, the federal exception for expunged convictions does not apply.

PARDON FROM CALIFORNIA GOVERNOR

There is only one relatively certain way to restore your federal gun rights: obtain a pardon. Pardons can be obtained from either the Governor of California or the President of the United States. In both cases, discretion over whether to grant a pardon rests entirely with the chief executive.

Who is eligible for a California gubernatorial pardon? Defendants who have been convicted of a California felony that are ineligible for reduction to a misdemeanor may be able to receive a gubernatorial pardon. Individuals convicted of misdemeanor sex crimes are also eligible.

Typically, the main requirement for a California gubernatorial pardon is exemplary behavior over a long period of time. An application for a pardon will not normally be considered unless you have been discharged from probation or parole for at least 10 years without any criminal activity during that time frame. If convicted of a felony under federal law, you must apply for a Presidential pardon. source

How Do I Restore My Firearm Rights Under Federal Law?

A felony conviction or a domestic violence conviction results in a state and federal firearm ban. To buy a gun, you have to pass a state and federal background check.

Therefore, to fully restore your gun rights, you have to restore your firearm rights under both state and federal law.

Do I lose my federal gun rights if I was convicted of a felony in Washington state court?

Yes.

Under the federal Gun Control Act of 1968, you cannot possess a firearm under federal law if you have been convicted of a crime “in any court” that carries a maximum punishment in any court that carries a maximum possible punishment of more than one (1) year in prison (18 U.S.C. 922(g)(1)).

In practice, this means that anyone convicted of a felony in state or federal court cannot own a possess a firearm under federal law.

Can I restore my federal gun rights in federal court?

No.

You can restore your state gun rights in state court, so you might naturally assume that you can restore your federal gun rights in federal court. But the answer is no. Why?

Under 18 U.S.C. 925(c), you can apply to the Bureau of Alcohol, Tobacco & Firearms to restore your gun rights. And if your application is denied, then you can seek judicial review in federal court.

But since 1992, Congress barred ATF from spending money to review and investigate a felon’s application to restore gun rights. Then, later, the U.S. Supreme Court ruled that “no action” does not equal a “denial.” In other words, no denial equals no right to go to federal court.

How do I restore my federal gun rights if I have a federal conviction?

Because you can’t go to federal court (see above), a presidential pardon is essentially the only way to restore your federal firearm rights if you’ve been convicted of a federal felony.

In practice, therefore, you have very little chance of ever fully restoring your gun rights with a federal felony.

Can I restore my federal gun rights in Washington state court?

Yes.

Under 18 U.S.C. 921(a)(20), a felony conviction does not prevent you from possessing a firearm if your civil rights have been restored or your conviction has ben vacated. To restore your civil rights, however, you don’t go to federal court. You go to state court.

A felony conviction three important rights: (1) the right to vote; (2) the right to serve on a jury; and (3) the right to hold public office.

In Washington, felons regain their civil rights after completing their sentence. This typically requires serving all jail time and paying all court costs. Once this happens, the court issues a Certificate of Discharge.

Example: You are convicted of felony drug trafficking in King County Superior Court. You complete your sentence, and the Court issues you a Certificate of Discharge. You cannot be federally prosecuted for possessing a firearm.

Keep in mind, however, that under Washington state law, a Certificate of Discharge does not restore your right to possess firearms. You have to file a separate motion to restore your state gun rights in superior court.

If I restore my gun rights in Washington, are my federal gun rights automatically restored?

Not necessarily.

In Washington, you can restore your gun rights without having to fully restore your other civil rights. In that case, you would be eligible to possess a gun under state law but could still be prosecuted under federal law.

Example: You are convicted of a felony in Vancouver. In 2019, you restore your state gun rights in Clark County Superior Court, although you still owe fines for the felony. Because you still owe money, you have not completed your felony sentence, which means you are not entitled to a Certificate of Discharge, which means you have not restored your civil rights in Washington, which means that you can still be prosecuted under federal law.

Additionally, if you have felony convictions in multiple states, you may have to restore your gun rights in different states to restore your federal gun rights.

Can I restore my firearm rights if I’ve been committed to a mental health facility?

No.

Under 18 U.S.C. 922(g)(4), you cannot own or possess a firearm if you have been “adjudicated as a mental defective” or has “been committed to a mental institution.”

Under Washington State law (RCW 9.41.047), you also lose your firearm rights

You can, however, restore your firearm rights under Washington State law (RCW 9.41.047) for the exact same reason.

So what does mean in practice? It means you can possess a firearm under state law (i.e. you cannot be prosecuted under state law for possessing a firearm). But because you are not eligible under federal law, you will not be able to pass a federal background check or be eligible for concealed pistol license (CPL).

The Ninth Circuit Court of Appeals made this clear in a recent case in March 2020.

In Mai v. United States, the Court compared the two applicable statutes–RCW 9.41.047 and 18 U.S.C. 1922(g)(4)–and ruled that the federal law is more strict than the state law.

For example: Washington law requires a a judge to find that a person “no longer presents a substantial danger” to others whereas federal law requires a judge to determination that a person “will not be likely to act in a manner dangerous to public safety.”

In other words, you could be a danger and be ineligible to possess firearms under federal law but not be a substantial danger and therefore be eligible to possess firearms under Washington law.

But that’s not all. There’s no way for a Washington resident to overcome the federal legal barrier under 1922(g)(4). Here’s why.

In some states, you can petition the local government to sign an order stating that you have overcome the federal legal barrier. But the federal government won’t recognize the state order unless the state order complies with federal law, and as the Ninth Circuit ruled, Washington’s state program doesn’t.

Is a courts martial conviction considered a federal conviction?

Yes.

In the military, courts-martial are trials that try members of the U.S. military for crimes under the Uniform Code of Military Justice (UCMJ). The UCMJ is federal law, enacted by Congress, and lists all criminal offenses under military law. Think of the UCMJ as the equivalent of all the RCWs in Washington State.

For this reason, a courts-martial conviction is effectively a federal conviction, not a state conviction. A conviction at a general court-martial, for example, is equivalent to a felony conviction in a U.S. federal district court. source

Anti-gun lobbyist David Chipman unsuited to run the ATF

The Truth News — Thu, 02 Feb 2023 08:32:52 +0000

Anti-gun lobbyist David Chipman unsuited to run the ATF

Imagine if a Republican president named an NRA lobbyist to the Top PO$T

Imagine the uproar if Donald Trump or George W. Bush had appointed an NRA lobbyist to head the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Liberals, Democrats, and the media would have gone nuts. Former New York Mayor Michel Bloomberg would have thrown a fit, and the nominee would have been excoriated in the media, pilloried during the confirmation process, and accused of every conceivable sin. He would never have been confirmed.

During the uproar, presidential advisors and friendly members of Congress would have advised the White House that appointing a committed activist had been a mistake. They would claim the Bureau entrusted with regulating the firearms industry and private gun-owners cannot be a sworn enemy or a loyal friend, but only an honest enforcer of existing laws and regulations regardless of the swirling and never-ending debates over whether those laws and regulations are too lax or too strict.

Knowing this, Second Amendment advocates would not have presumed to advise a friendly President to turn the ATF over to one of their own.

The anti-gun forces have no such qualms. No one apparently offered any such advice to President Joe Biden, who threw prudence and good judgment to the winds. Shortly after moving into the Oval Office, Mr. Biden appointed David Chipman, a paid lobbyist for a leading anti-Second Amendment group and a public advocate of firearms restrictions that would never pass Congress or stand up to Constitutional scrutiny. Mr. Chipman is the dream nominee of the gun control crowd allowing them to “go after” gun dealers, owners, and manufacturers, regardless of the letter or spirit of existing law or the prudent judgment one ordinarily seeks in regulatory appointees.

Mr. Chipman worked at ATF for some years before signing on as an anti-gun lobbyist but was even then more a gun control activist than an objective law enforcement official. After Mr. Biden named Mr. Chipman, one long-time colleague told reporters that in all his years at ATF, he knew of only two employees hostile to the very idea that Americans should have the right “to keep and bear arms” as guaranteed by the Second Amendment. One of them was Mr. Chipman. Other former colleagues describe him as “a bully,” and there have been suggestions that he disparaged Blacks; just the sort who should never be trusted with power.

Naming Mr. Chipman unleashed a torrent of opposition in the Senate and beyond. It took more than a month to get his nomination out of the Senate Judiciary Committee on a straight party-line vote. Senator Dick Durbin, the Democratic Whip, acknowledged recently that Democrats do not have the votes to confirm him. One uncomfortably undecided Democratic Senator, John Tester of Montana, suggested to reporters that the nomination might well be withdrawn. That may have been wishful thinking because if forced to vote Mr. Tester and other Democrats caught between their party’s leaders and voters back home will find themselves between the proverbial rock and hard place.

By David Keene – source

NRA challenges Illinois semiautomatic gun ban in court: ‘Blatant violation’ of Second Amendment rights

The Truth News — Wed, 11 Jan 2023 07:52:24 +0000

NRA challenges Illinois semiautomatic gun ban in court: ‘Blatant violation’ of Second Amendment rights

NRA says it will not ‘stand by while activist politicians pass unconstitutional laws’

By Emma Colton | Fox News

EXCLUSIVE — The National Rifle Association (NRA) filed a lawsuit Tuesday against the state of Illinois over its recent gun control law that the group says is “unconstitutional” and a “blatant violation” of constitutional rights.

“The NRA will not stand by while activist politicians pass unconstitutional laws that do nothing to promote public safety. We sued the state of Illinois because this new law is a blatant violation of Americans’ Second Amendment rights,” Jason Ouimet, executive director of the NRA Institute for Legislative Action (NRA-ILA), told Fox News Digital.

The Illinois Senate passed its version of the Protect Illinois Communities Act earlier this month, banning so-called assault weapons and high-capacity magazines from being manufactured or sold in the state.

Gov. J.B. Pritzker then signed the bill into law, prohibiting the manufacture and sale of semiautomatic rifles and pistols, .50-caliber guns, as well as attachments that can increase a gun’s fire rate. The law also requires residents to register their banned firearms.

“The Supreme Court has repeatedly ruled that the Second Amendment protects firearms that are in common use,” Ouimet continued in his comment to Fox News Digital. “AR-15s are the most popular rifle in America with millions being lawfully used every day. In fact, in 2020, more than three times as many AR-15s were sold as Ford F150s. Further, less than 2 percent of all gun crime is committed with these types of rifles. The governor signed this bill to advance a political agenda, not to protect his constituents.”

AR-15-style rifles are on display at Freddie Bear Sports in Tinley Park, Illinois, on Aug. 8, 2019. (Zbigniew Bzdak / Chicago Tribune / Tribune News Service via Getty Images)

Ouimet was citing a federal judge in California who ruled in 2021 that California’s ban on so-called assault weapons was unconstitutional and that F-150 pickup trucks were wildly popular in 2018, with 909,330 vehicles sold, but that “twice as many modern rifles were sold the same year.”

Ouimet added in a comment to Fox News Digital, which comes two weeks after the Illinois legislation was signed into law, that the “NRA has worked diligently to put together the strongest lawsuit possible.”

“While some rush to file litigation first out of the gate, we work to file the strongest legal challenge, one that will withstand the lengthy litigation process,” he said. “We filed Bruen (New York State Rifle & Pistol Association Inc. v. Bruen) in February 2018, and the Supreme Court did not issue its ruling on that case until June 2022. We know firsthand that filing the right suit is paramount to making sure that we have the best chance at the best outcome for our members and gun owners.”

The NRA and other Second Amendment advocates have argued that the ban targets commonly owned and purchased firearms and magazines, thus violating the Constitution.

More than six dozen sheriffs have also come out against the law, vowing to defy the bans they have also characterized as unconstitutional.

National Rifle Association Executive Vice President Wayne LaPierre speaks during the NRA-ILA meeting at the George R. Brown Convention Center, May 27, 2022, in Houston. (AP Photo / Michael Wyke)

“Part of my duties that I accepted upon being sworn into office was to protect the rights provided to all of us, in the Constitution,” Edwards County Sheriff Darby Boewe said in a recent Facebook post.

“One of those rights enumerated is the right of the people to KEEP and BEAR ARMS provided under the 2nd Amendment. The right to keep and bear arms for defense of life, liberty and property is regarded as an inalienable right by the people.”

Illinois Gov. J.B. Pritzker (AP Photo / Charles Rex Arbogast / File)

The sheriff of DuPage County, Jim Mendrick,added in his own statement this month: “Neither myself nor my office will be checking to ensure that lawful gun owners register their weapons with the State, nor will we be arresting or housing law-abiding individuals that have been arrested solely with non-compliance of this Act.”

He is now coming under fire from lawmakers who say he doesn’t have the authority to override laws.

Mendrick fired back, saying that “there is absolutely nothing that we are doing or not doing that would make a mass shooting more accessible in DuPage County.”

“In fact, I have asked on multiple occasions to increase penalties on all existing gun crimes, but it does not appear that they want to have that conversation. They seem more concerned with lawful gun owners than people illegally possessing guns,” the sheriff added.

Pritzker’s office slammed the sheriffs for vowing to not enforce the law in a comment to Fox News Digital last week, calling their statements “political grandstanding at its worst.”

“The assault weapons ban is the law of Illinois,” Pritzker’s office told Fox News Digital on Monday. “The General Assembly passed the bill and the governor signed it into law to protect children in schools, worshippers at church and families at parades from the fear of sudden mass murder.”

“Sheriffs have a constitutional duty to uphold the laws of the state, not pick and choose which laws they support and when. We’re confident that this law will hold up to any future legal challenges, but again, it is the current law of our state. Anyone who advocates for law, order, and public safety and then refuses to follow the law is in violation of their oath of office,” the governor’s office said.

Dozens of Illinois sheriffs vow to defy governor’s assault weapons ban

Gov. Pritzker signed gun-control legislation into law earlier this month

By Emma Colton | Fox News

More than six dozen Illinois sheriffs have vowed to defy a gun-control law signed by Democratic Gov. J.B. Pritzker that bans semiautomatic rifles.

“Part of my duties that I accepted upon being sworn into office was to protect the rights provided to all of us, in the Constitution,” Edwards County Sheriff Darby Boewe said in a Facebook post.

Boewe is one of at least 74 sheriff offices that have posted statements in opposition of the law, according to ABC News.

The Illinois Senate passed its version of the “Protect Illinois Communities Act” last Monday. The bill bans assault weapons and high-capacity magazines from being manufactured or sold in the state. Pritzker signed the bill into law last Tuesday, banning the manufacturing and sale of types of semiautomatic rifles and pistols, .50-caliber guns, as well as attachments that can increase a gun’s fire rate.

AR-15-style rifles are on display at Freddie Bear Sports gun shop in Tinley Park, Illinois, on Aug. 8, 2019. (Zbigniew Bzdak/Chicago Tribune/Tribune News Service via Getty Images)

The Illinois Sheriff’s Association said in a statement that it opposed the bill since its inception.

“We, as a representative of chief law enforcement officials throughout Illinois, are very concerned and disturbed by the ongoing and escalating violence throughout our State and Country,” the statement, released Wednesday, said.

“We are always supportive of new tools, techniques and laws that assist us in preventing and holding accountable those that wage efforts of harm and violence on others. However, this new law does not do that.”

Illinois Gov. J.B. Pritzker (AP Photo/Charles Rex Arbogast/File)

Richland County Sheriff Andrew R. Hires said in a Facebook post that “The right to keep and bear arms for defense of life, liberty and property is regarded as an inalienable right by the people.”

“I, among many others, believe that HB 5471 is a clear violation of the 2nd Amendment to the US Constitution,” Hires said.

There are at least 102 sheriff’s offices in Illinois. The 74 offices vowing to defy the new law will affect roughly 30% of residents in the state, according to ABC News.

The Illinois State Capitol (Armando L. Sanchez/Chicago Tribune/Tribune News Service via Getty Images/File)

Cook County, the state’s most populous county that is home to about 40% of the Illinois population, has not spoken out against the law.

Pritzker said during an interview on MSNBC last week that sheriffs opposing the law are taking part in “political grandstanding.”

“It’s our state police and law enforcement across the state that will, in fact, enforce this law, and these outlier sheriffs will comply or, frankly, they’ll have to answer to the voters,” Pritzker said.

His office added in comment to Fox News Digital on Monday that “sheriffs have a constitutional duty to uphold the laws of the state.”

“This is political grandstanding at its worst. The assault weapons ban is the law of Illinois. The General Assembly passed the bill and the Governor signed it into law to protect children in schools, worshippers at church, and families at parades from the fear of sudden mass murder,” a Pritzker spokesperson said.

Fox News’ Greg Wehner contributed to this report.

Semiautomatic weapons ban becomes Illinois law

Opponents vow to challenge the IL legislature’s sweeping gun ban in court

Illinois banned the sale or possession of semiautomatic weapons Tuesday when Gov. J.B. Pritzker signed legislation driven largely by the killing of seven people at a 4th of July parade last year in the Chicago suburb of Highland Park.

Pritzker acted without hesitation after the House voted 68-41 to make Illinois the ninth state, as well as Washington, D.C., to prohibit the sale or possession of semiautomatic weapons. The vote concurred with a plan the Senate OK’d Monday night.

Pritzker, who was sworn into his second term on Monday, celebrated the culmination of what he described as a four-year struggle against “the powerful forces” of gun advocacy groups.

“We will keep fighting — bill by bill, vote by vote, and protest by protest — to ensure that future generations only hear about massacres like Highland Park, Sandy Hook, and Uvalde in their textbooks,” Pritzker said in a statement.

In his inaugural address Monday, the Democrat abhorred not only the Highland Park mass shooting that also left 30 injured, but frequent gun violence in Chicago, notably the gun play that killed two 16-year-olds and injured two others last month at Benito Juarez High School on Chicago’s west side.

Critics warn the governor’s signature will trigger court challenges, which will ultimately overturn the law as a violation of the 2nd Amendment.

Ed Sullivan, a lobbyist for the Illinois State Rifle Association, said legal action will be swift. Senate President Don Harmon closed debate on Senate action Monday night by boldly declaring to critics, “See you in court.” The ISRA responded, “Challenge accepted.”

State Republicans, whose 45 seats dropped by five with a new General Assembly taking over on Wednesday, were left snarling during debate. Rep. Blaine Wilhour of Beecher City, 97 miles northeast of St. Louis, snidely complained that Democrats “despise our Founders.”

“A government willing to defy our Constitution is a government that is completely out of control. So you can sit here and dictate whatever you want today,” Wilhour said. “But I can tell you that we will not comply and you’re not going to do a darn thing about it because the law, the Constitution and the founding principles are on our side.”

The legislation bans dozens of specific brands or types of rifles and handguns, .50-caliber guns, attachments and rapid-firing devices. No rifle will be allowed to accommodate more than 10 rounds, with a 15-round limit for handguns.

Those who already own such guns will have to register them, including serial numbers, with the Illinois State Police. The new law enables merchants to sell or return current stock and Illinois-based manufacturers can sell their wares outside Illinois or to law enforcement.

A semiautomatic weapons ban passed by the Illinois legislature was signed into law by Gov. J.B. Pritzker on Tuesday. (Fox News)

Speaker Emanuel “Chris” Welch introduced his mother, Willie Mae Welch, who was with him on the House floor. Welch told how, as a teenager in 1985, his mother’s sister was fatally shot while sitting in a car outside her church. Welch’s aunt had three young girls. His parents, despite having three boys of their own, took them in. No assailant was ever apprehended.

“It’s time that we protect Illinois communities,” Welch said. “It’s time that we protect Illinois families. Let’s end families having to change overnight. Let’s not lose any more brothers and sisters, children to gun violence.”

Welch, a Democrat from the Chicago suburb of Hillside, took the lead on the measure from the original sponsor, Rep. Bob Morgan, a Democrat from suburban Deerfield who was participating in the Highland Park parade when the shooting began.

Eight states and the District of Columbia currently have bans on semiautomatic weapons, according to Tanya Schardt, working in favor of the legislation for the Brady Campaign. They differ in their definitions of semiautomatic weapons, but generally they ban 10-round clips for long guns and handguns. The bans have survived constitutional challenges in scores of courts, she said.

Five states — California, Connecticut, Hawaii, New Jersey and New York — require registration of guns purchased previous to the law, Schardt said. The other three states with bans are Delaware, Maryland and Massachusetts.

Registration often angers current owners but most tolerate the collection of information, Schardt said.

The legislation also provides protection. If police stop a car driven by a semiautomatic gun owner, for example, they can instantly check to ensure it’s legally owned. And it allows law enforcement to trace a gun that, for example, is stolen and used in a crime.

The Senate changed Morgan’s initial proposal, but compromised on changes the House could accept. For example, Morgan proposed raising the age to 21 for obtaining a Firearm Owners Identification card, but the current version allows those younger to get one with parental permission.

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Second Amendment groups warn of Illinois gun control bill heading to governor’s desk

Gun Owners of America said Illinois lawmakers are ‘bending and ignoring the constitution’

Gun rights groups are promising to fight a proposed semiautomatic weapons ban in Illinois after the state Senate advanced gun control legislation championed by Democrats.

The Illinois Senate on Monday passed its version of the “Protect Illinois Communities Act,” which would ban so-called assault weapons and high-capacity magazines from being manufactured or sold in the state. The bill also makes devices intended to increase the rate-of-fire of semiautomatic weapons illegal, and increases the duration of a firearm restraining order from six months up to one year under the state’s red flag law.

“Gun violence is an epidemic that is plaguing every corner of this state and the people of Illinois are demanding substantive action,” said Democratic Senate President Don Harmon. “With this legislation we are delivering on the promises Democrats have made and, together, we are making Illinois’ gun laws a model for the nation.”

The legislation would ban the manufacture or possession of dozens of brands and types of rapid-fire rifles and pistols, .50-caliber guns and attachments that enhance a weapon’s firepower. Those who currently own such guns would not be required to surrender them but would have to register them with the Illinois State Police — including serial numbers, a provision initially removed by the Senate but restored after House proponents’ objections.

Gov. J.B. Pritzker speaks after being sworn in for a second term Monday, Jan. 9, 2023, during the inauguration ceremony at the Bank of Springfield Center in Springfield, Illinois. (Brian Cassella/Chicago Tribune/Tribune News Service via Getty Images)

Merchants, who are federally licensed to sell such weapons, would be able to dispose of their current inventory by returning them to manufacturers or selling them.

In total, the bill would ban the future sale of nearly 100 different kinds of semi-automatic pistols, shotguns and rifles, which the legislation defines as “assault weapons.”

The National Rifle Association and other Second Amendment advocates say the legislation bans many commonly-owned rifles and goes beyond previous attempts to outlaw certain firearms.

“Not only does this tyrannical proposition infringe on the rights of all Illinois citizens, but it is also extremely dangerous,” Gun Owners of America said in a call to action opposing the bill.

The Illinois State Capitol on Jan. 6, 2022, in Springfield, Illinois. (Armando L. Sanchez/Chicago Tribune/Tribune News Service via Getty Images)

“These commonly owned semi-automatic firearms are used countless times every year to save lives and deter crime. Banning them will only prevent law-abiding citizens from purchasing the best firearm to defend themselves. Not to mention, the requirement to register currently owned firearms is vehemently unconstitutional,” the group argued.

The Illinois State Rifle Association said a more apt title for the bill would be, “bending and ignoring the constitution in an effort to take away your Second Amendment rights to bear arms in Illinois.” The group has said it will take legal action if the bill becomes law.

An empty chairs and bicycles remain near the scene of the shooting in Highland Park, Illinois, on July 5, 2022. (Photo by Jacek Boczarski/Anadolu Agency via Getty Images)

A ban on semiautomatic weapons was a campaign priority for Illinois Gov. J.B. Pritzker, particularly after a gunman killed seven people and injured 30 others in a July 4th parade shooting in the Chicago suburb of Highland Park.

Republican lawmakers were opposed to the bill, but were overwhelmingly outnumbered in the 34-20 vote Monday. State Sen. Darren Bailey, a former GOP candidate for governor, predicted the Illinois Supreme Court would find the measure unconstitutional and said he and “millions of other gun owners in this state will not comply.”

Harmon welcomed challenges to the law in remarks on the state Senate floor Monday.

The Protect Illinois Communities Act must go back to the state House for reconciliation before it is sent to Gov. Pritzker’s desk.

The Associated Press contributed to this report.

By Chris Pandolfo | Fox News