Second Amendment

He Lost His Gun Rights Because of a Misdemeanor DUI Conviction. That Was Unconstitutional, a Judge Says.

The case highlights the broad reach of a federal law that bans firearm possession by people with nonviolent criminal records.


The federal ban on gun possession by people with certain kinds of criminal records is often described as applying to "felons," but that shorthand is misleading. The provision, 18 USC 922(g)(1), actually covers anyone convicted of "a crime punishable by imprisonment for a term exceeding one year." That is why Pennsylvania resident Edward A. Williams lost his right to own a gun after he was convicted of driving under the influence, a misdemeanor, in 2005. Had Williams defied Section 922(g)(1) by possessing a firearm, he would have been committing a federal felony punishable by up to 15 years in prison.

That consequence violated Williams' Second Amendment rights, a federal judge ruled on Tuesday. U.S. District Judge John Milton Younge's decision in Williams v. Garland tracks the logic of a June ruling by the U.S. Court of Appeals for the 3rd Circuit, which includes Pennsylvania. The latter case, Range v. Attorney General, involved a Pennsylvania man who likewise was convicted of a nonviolent misdemeanor: food stamp fraud. Both cases illustrate the breadth of this "prohibited person" category, which includes many Americans with no history of violence.

Back in 1995, Bryan Range pleaded guilty to fraudulently obtaining $2,458 in food stamps by understating his income. He returned the money, paid a $100 fine and $288 in court costs, and served three years of probation. But although he did not initially realize it, that Pennsylvania misdemeanor conviction also carried a lifelong penalty under Section 922(g)(1): permanent loss of his Second Amendment rights. Even though Range did not serve any time behind bars, his crime theoretically was punishable by up to five years in prison.

Applying the constitutional test that the Supreme Court established last year in New York State Rifle & Pistol Association v. Bruen, the 3rd Circuit concluded that disarming Range was not "consistent with this Nation's historical tradition of firearm regulation." Writing for the majority, Judge Thomas M. Hardiman noted that laws restricting gun rights based on criminal records were not enacted until relatively recently.

The first such federal law, the Federal Firearms Act of 1938, applied only to violent crimes such as murder, manslaughter, rape, kidnapping, robbery, and assault with a deadly weapon. In 1961, Congress expanded the ban to cover nonviolent crimes punishable by more than a year in prison. "We are confident that a law passed in 1961—some 170 years after the Second Amendment's ratification and nearly a century after the Fourteenth Amendment's ratification—falls well short of 'longstanding' for purposes of demarcating the scope of a constitutional right," Hardiman wrote.

The 3rd Circuit described its decision as "narrow," applying only to Range and "people like him." One of those people, Younge ruled on Tuesday, is Williams, who was arrested for DUI 23 years ago in State College. Although Williams completed a diversion program that resulted in the dismissal of that charge, it still counted as a prior conviction when he was again arrested for DUI in Philadelphia four years later. The prior conviction, combined with the fact that a breathalyzer put his blood alcohol concentration at 0.233 percent ("well above the legal limit of 0.08") after the 2004 arrest, made the second offense "a first-degree misdemeanor punishable by up to five years in prison." That was enough to trigger Section 922(g)(1).

Defending that application of the provision, the government cited laws enacted in the 17th, 18th, and 19th centuries that prohibited people from either carrying or firing guns while intoxicated. "The Government points to several regulations permitting the disarmament of drunk or intoxicated persons," Younge writes. "None of these regulations allude to disarmament lasting beyond the individual's state of intoxication, and none provided for permanent disarmament, as Section 922(g)(1) does. Certainly, this Court agrees that using a firearm while intoxicated is dangerous, but historical regulations which momentarily disarmed certain individuals for temporary mental incapacity cannot be considered similar to the sanction of permanent disarmament for past DUI convictions."

In Range, the Justice Department tried to avoid the need to come up with "relevantly similar" historical analogs by arguing that the Second Amendment applies only to "law-abiding" people. Once Range committed food stamp fraud, the government argued, he was no longer part of "the people" whose rights that amendment guarantees.

The 3rd Circuit rejected that argument in no uncertain terms. "At root, the Government's claim that only 'law-abiding, responsible citizens' are protected by the Second Amendment devolves authority to legislators to decide whom to exclude from 'the people,'" Hardiman wrote. "We reject that approach because such 'extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.'"

The Justice Department has not given up on that argument. Solicitor General Elizabeth Prelogar recently told the Supreme Court that the federal ban on gun possession by people who are subject to domestic violence restraining orders is constitutional because it is limited to "dangerous individuals" (which is not actually true). But she repeatedly indicated that, in the government's view, dangerousness is not the only legitimate criterion for disarming people.

"Bruen recognized that Congress may disarm those who are not law-abiding, responsible citizens," Prelogar said. "Throughout our nation's history, legislatures have disarmed those who have committed serious criminal conduct." She argued that "history and tradition" show legislators may disarm "those who have committed serious crimes defined by the felony-level punishment that can attach to those crimes."

That claim conveniently matches the language of current federal law. But as the 3rd Circuit noted in Range, Prelogar's account does not match historical practice prior to the 20th century. And as the 3rd Circuit also noted, the approach recommended by Prelogar empowers the government to strip individuals of their constitutional rights based on how legislators decide to classify an offense.

Chief Justice John Roberts asked Prelogar if "someone who drives 30 miles an hour in a 25-mile-an-hour zone" would qualify as "law-abiding." Yes, Prelogar said, because that is not a "serious crime." Roberts asked if she had in mind the distinction between misdemeanors and felonies. Yes, Prelogar said, "that is the relevant category with
respect to law-abiding citizens."

There are a few problems with that position. First, as Range and Williams show, even nonviolent misdemeanors can trigger the loss of gun rights under Section 922(g)(1). Second, the felonies covered by that provision include many offenses that do not involve violence, such as mail fraud, embezzlement, and obstruction of justice, along with offenses, such as drug dealing, that do not even involve the violation of anyone's rights. Third, if the only criterion is whether an offense is classified as a felony or whether it is subject to "felony-level punishment," legislators have unreviewable power to dramatically limit Second Amendment rights by 1) criminalizing common behavior (such as speeding) and 2) classifying it as a felony.

Last February, in an Oklahoma case involving the federal ban on gun possession by cannabis consumers, U.S. District Judge Patrick Wyrick highlighted that last danger. "Imagine a world" where a state "could make mowing one's lawn a felony so that it could then strip all its newly deemed 'felons' of their right to possess a firearm," he said.

Wyrick posed that very hypothetical to the government's lawyers. "Remarkably," he said, "when presented with this lawn-mowing hypothetical argument, and asked if such an approach would be consistent with the Second Amendment, the United States said 'yes.' So, in the federal government's view, a state or the federal government could deem anything at all a felony and then strip those convicted of that felony—no matter how innocuous the conduct—of their fundamental right to possess a firearm."