... and Justice for All

Five-time convicted felon has Second Amendment right to carry a gun, Ninth Circuit rules

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 18^th 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

 

Second Amendment violated by prosecution of admitted pot smoker for possession of firearms

Federal law makes it illegal and a felony for a regular user of illegal drugs, as marijuana continues to be in a number of states and under federal law, to possess a gun or firearm. The U.S. Court of Appeals for the Fifth Circuit has ruled that a prosecution for violating this law violates the Second Amendment in United States v. Daniels. 

The defendant, Daniels, was stopped for driving without a license plate. There were some marijuana cigarette butts in his car's ashtray, but he wasn't high when he was pulled over. He also had in the car two loaded firearms: a 9mm pistol and and a semi-automatic rifle. He was indicted and found guilty of violating 18 U.S.C. § 922(g)(3). The Fifth Circuit reversed the conviction and ordered that the indictment be dismissed. 

The key to the ruling is that Daniels, the defendant, was not shown to be high, or stoned or intoxicated by marijuana or anything else when he was stopped. So the question really was: does the Second Amendment allow prosecution for possession of firearms of someone who sometimes smokes marijuana but who was not shown to be impaired or affected by it when he was stopped and found to have some guns in his car? No, the Fifth Circuit answered; our Nation does not have a historical tradition of disarming our citizens perpetually and at all times just because they might on occasion smoke some weed or have a drink or two too many. 

The ruling is the latest affirmation from the Fifth Circuit of the right to keep and bear arms enshrined in the Constitution by the Second Amendment. 

Robert L. Abell
www.RobertAbellLaw.com

 

Are felon in possession of a firearm prosecutions unconstitutional under Second Amendment?

There is a good argument that felon in possession of a firearm prosecutions for violating 18 U.S.C. § 922(g)(1) by the federal government are unconstitutional and violate the Second Amendment. This argument comes from the Supreme Court's monumental Second Amendment decision last year in New York State Rifle & Pistol Ass'n v. Bruen, and the "originalist" theory of the Constitution that has become the currency of the Supreme Court's Republican-appointed majority. 

Constitutional originalism posits this: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868." Bruen, 142 S.Ct. at 2136. Fair enough; so the questions then become what was understood about the federal government's powers under the Second Amendment in 1791? Was it understood to have some, none or unbounded power to limit the right to keep and bear arms? 

The historical evidence indicates that in 1791 and for at least 100 years or so afterwards the it was understood that the Second Amendment allowed the federal government, a government of limited, enumerated powers, no authority to regulate or limit the right to keep and bear arms. Here's just a few pieces of that evidence:

James Madison wrote in the Federalist Papers, No. 45 that the states, not the federal government, would exercise the general police powers of government, that is, the "powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state." 

A constitutional law treatise, A View of the Constitution of the United States, published in 1829 and authored by William Rawle offered that: "No clause in the Constitution cold by any rule of construction be conceived to give Congress a power to disarm the people."

Two decisions by the Supreme Court after the Civil War remarked that the Second Amendment forbade the federal regulation of the right to keep and bear arms. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated: “The Second Amendment declares that [the right to keep and bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” Barely ten years later in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the national government and not upon that of the states.”

So at and around the time the Second Amendment was adopted in 1791, in the few decades thereafter and continuing for nearly 100 years, it was understood that the Second Amendment allowed Congress no power to disarm American citizens. It seems inescapable that the Second Amendment, as understood when it was adopted in 1791 and continuing for more than a century after that, allows Congress no authority to limit or regulate the right to keep and bear arms. That means the prosecution of anyone for violating 18 U.S.C. § 922(g)(1) is unconstitutional. 

So far only two courts, the en banc U.S. Court of Appeals for the Third Circuit, Justice Sam Alito's former court, in Range v. Attorney General, and the United States District Court for the Southern District of Mississippi, Hon. Carlton K. Reeves, who is also Chairman of the United States Sentencing Commission, in United States v. Bullock, have ruled that the Second Amendment, as the Bruen decision commands it be applied, prohibits the prosecution of the plaintiff in Range and the defendant in Bullock. In other words, only two courts have ruled that the Second Amendment renders § 922(g)(1) unconstitutional as to those individuals. 

This conclusion -- that the Second Amendment allows the federal government no authority to limit or regulate the right to keep and bear arms -- does not mean that a state government may not do so; the historical evidence regarding the scope of the states' power to regulate firearm possession is much more mixed. 

Robert L. Abell
www.RobertAbellLaw.com 

Does the federal government have any power to regulate or limit Second Amendment rights to keep and bear arms?

Since the Supreme Court's decision last June in New York State Rifle & Pistol Ass'n v. Bruen, there has been a near-tidal wave of litigation as to Second Amendment issues. The most frequent of these are motions to dismiss indictments charging violation of 18 U.S.C. § 922(g)(1), which makes it a crime for someone previously convicted of a felony (or its equivalent) from possessing a firearm. So far only two courts, the en banc U.S. Court of Appeals for the Third Circuit, Justice Sam Alito's former court, in Range v. Attorney General, and the United States District Court for the Southern District of Mississippi, Hon. Carlton K. Reeves, who is also Chairman of the United States Sentencing Commission, in United States v. Bullock, have ruled that the Second Amendment, as the Bruen decision commands it be applied, prohibits the prosecution of the plaintiff in Range and the defendant in Bullock. In other words, only two courts have ruled that the Second Amendment renders § 922(g)(1) unconstitutional as to those individuals. 

Judge David Porter of the Third Circuit in a concurring opinion in Range raised the issue of whether the federal government had any power or authority to regulate or limit Second Amendment rights to keep and bear arms. The Supreme Court hasn't considered this question. There is a strong argument that the Second Amendment allows the federal government no power or authority to limit or regulate the right to keep and bear arms. The argument proceeds as part and rests on the "originalist" theory of the Constitution that has become the currency of the Supreme Court's conservative, Republican-appointed majority. 

Constitutional originalism posits this: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868." Bruen, 142 S.Ct. at 2136. Fair enough; so what was understood about the federal government's powers under the Second Amendment in 1791? Was it understood to have some, none or unbounded power to limit the right to keep and bear arms? 

The historical evidence indicates that in 1791 and for at least 100 years or so afterwards the it was understood that the Second Amendment allowed the federal government, a government of limited, enumerated powers, no authority to regulate or limit the right to keep and bear arms. Here's just a few pieces of that evidence:

James Madison wrote in the Federalist Papers, No. 45 that the states, not the federal government, would exercise the general police powers of government, that is, the "powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state." 

A constitutional law treatise, A View of the Constitution of the United States, published in 1829 and authored by William Rawle offered that: "No clause in the Constitution cold by any rule of construction be conceived to give Congress a power to disarm the people."

Two decisions by the Supreme Court after the Civil War remarked that the Second Amendment forbade the federal regulation of the right to keep and bear arms. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated: “The Second Amendment declares that [the right to keep and bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” Barely ten years later in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the national government and not upon that of the states.”

So at and around the time the Second Amendment was adopted in 1791, in the few decades thereafter and continuing for nearly 100 years, it was understood that the Second Amendment allowed Congress no power to disarm American citizens. It seems inescapable that the Second Amendment, as understood when it was adopted in 1791 and continuing for more than a century after that, allows Congress no authority to limit or regulate the right to keep and bear arms. That means the prosecution of anyone for violating 18 U.S.C. § 922(g)(1) is unconstitutional. 

This conclusion -- that the Second Amendment allows the federal government no authority to limit or regulate the right to keep and bear arms -- does not mean that a state government may not do so; the historical evidence regarding the scope of the states' power to regulate firearm possession is much more mixed. 

Robert L. Abell
www.RobertAbellLaw.com