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.