A five-time convicted felon retains his Second Amendment right to possess a firearm according to the Supreme Court's ruling in New York St. Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), the Ninth Circuit ruled recently in United States v. Duarte, No. 22-50048 (May 9, 2024). The defendant's prior convictions were for vandalism, felon in possession of a firearm, possession of a controlled substance, and two convictions for evading a police officer. The ruling vacated the defendant's conviction under federal law for felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
The Ninth Circuit applied a “two-step [analytical] framework” derived from New York St. Rifle & Pistol Ass’n v. Bruen, “to reconsider § 922(g)(1)’s constitutionality[.]” .
First, the court held that the defendant is among “the people” covered by the Second Amendment. This was because “he is an American citizen[,]” and because the Supreme Court “resolved this textual question when it held that ‘the people’ includes ‘all Americans’ because they fall squarely within our ‘national community.’” Quoting District of Columbia v. Heller, 554 U.S. 570, 580-81 (2008).
Second, the court held that the government had not identified “‘a well-established and representative historical analogue’ to § 922(g)(1)” justifying its application to the defendant. This entailed a how and why analysis regarding whether the proposed historical analogues “‘impose a comparable burden on the right of armed self-defense’ (Bruen’s ‘how’) that was ‘comparably justified’ (Bruen’s ‘why’) as compared to § 922(g)(1)[.]” Slip op. at 34, quoting Bruen, 597 U.S. at 29. A “distinctly similar” historical analogue is necessary since § 922(g)(1) “takes aim at ‘[ ] gun violence’ generally,” a problem persisting since the 18th century. Slip op. at 35, quoting Bruen, 597 U.S. at 26-27.
The government’s proposed historical analogues -- draft proposals considered by several state constitutional ratification conventions; colonial and early American laws that disarmed British loyalists, Catholics, Indians, and Blacks; and laws declaring miscellaneous offenses as either capital crimes or ones that resulted in civil forfeiture -- did not meet this test. Slip op. at 34-59.
Finally, the court concluded that the defendant’s felony convictions were not “by Founding era standards [] of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.” Id. at 62-63.
This case is the second in which a federal appeals court has ruled that the Second Amendment does not permit the disarming of convicted felons. Last year, the Third Circuit so ruled in Range v. Attorney General.
The Sixth Circuit has pending before it several cases that present the question of whether the Second Amendment prohibits a convicted felon's prosecution under 18 U.S.C. § 922(g)(1): United States v. Christopher Goins was argued on March 21, 2024. Robert L. Abell represents Goins; read here the Brief and the Reply Brief filed on behalf of Christopher Goins.
Robert L. Abell
www.RobertAbellLaw.com
