Will SCOTUS Resolve the Circuit Split on a Law That Disarms People With Nonviolent Criminal Records?

Steven Duarte is one of several petitioners who are asking the justices to address the constitutionality of that absurdly broad gun ban.

On a Friday night in March 2020, Steven Duarte was riding in the back seat of a car that ran a stop sign in Inglewood, California. After two police officers responded by activating their patrol lights, Duarte opened a window and tossed out a pistol. As a result of that traffic stop, Duarte was sentenced to more than four years in federal prison for violating 18 USC 922(g)(1), which prohibits gun possession by anyone who has been convicted of a crime punishable by more than a year of incarceration.

Although Duarte's criminal record included four state offenses that fell into that category, all of them were nonviolent. Last year, a divided three-judge panel of the U.S. Court of Appeals for the 9th Circuit overturned Duarte's federal conviction, ruling that Section 922(g)(1) was unconstitutional as applied to him. But last May, an 11-judge panel of the same court reversed that decision, concluding that Duarte's prosecution was consistent with the Second Amendment. Duarte is now asking the U.S. Supreme Court to take up his case and resolve a circuit split on the question of whether Section 922(g)(1) is unconstitutional as applied to people with no history of violence.

As I explain in my new book, Beyond Control, that provision disarms millions of Americans who pose no plausible threat to public safety. Duarte's Supreme Court petition is one of several involving the same absurdly broad law.

The petitioner in one of those cases, Melynda Vincent, is a Utah social worker who permanently lost her Second Amendment rights because she was convicted of passing a bad check in 2008. Another petitioner, Selim Zherka, was convicted of bank fraud and filing a false income tax return in 2015.

Duarte's record likewise does not suggest that he is prone to violence. In 2013, he was convicted of vandalism, a "wobbler" offense that can be charged as a misdemeanor or a felony under California law. That set him up for his next conviction, in 2016, for violating a California law that bans gun possession by anyone with a felony record. That same year, he was convicted of drug possession. His record also includes two convictions, in 2016 and 2019, for evading a police officer.

As those cases illustrate, Section 922(g)(1) covers a wide range of nonviolent offenses. It does not matter how long ago they were committed or what sentence was actually imposed. Vincent, for example, was sentenced to probation. But because her offense, bank fraud, theoretically could have resulted in a prison sentence, it was enough to trigger Section 922(g)(1).

Although this provision is commonly called a "felon-in-possession" law, it does not actually require a felony conviction. Bryan Range, for instance, lost his gun rights because he was convicted of food stamp fraud. Although that was a misdemeanor under Pennsylvania law, it was notionally punishable by up to five years in prison. So even though Range's sentence was limited to probation and restitution, he lost his right to arms—an outcome that the U.S. Court of Appeals for the 3rd Circuit deemed unconstitutional in the 2023 case Range v. Attorney General.

As Vincent's lawyers point out, Section 922(g)(1) also can be triggered by state offenses such as adultery, defacing a school building, "repeatedly sharing streaming websites' passwords," "temporarily using someone else's car without their consent," and "using a telephone to make a single anonymous call to annoy or embarrass." They add that federal law "includes many felonies that involve no danger," such as "knowingly and unlawfully 'export[ing] any fish or wildlife'" or making "an unauthorized recording of a movie" in a theater.

This law is "wildly overinclusive," UCLA law professor Adam Winkler notes, since "many felonies are not violent in the least, raising no particular suspicion that the convict is a threat to public safety." This issue has united the National Rifle Association (NRA), which joined a brief supporting Duarte's petition, with the American Civil Liberties Union (ACLU), which supported his 9th Circuit appeal.

Section 922(g)(1) is "an extraordinarily broad statute that does not target dangerousness or propensity to commit violence," the ACLU noted. It added that the government had failed to show that the provision's "categorical application to people convicted of nonviolent offenses" is "consistent with our history and tradition," as required by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

In United States v. Duarte, however, the 9th Circuit did not see any constitutional problem with the sweeping scope of this categorical prohibition. The majority attached a lot of weight to a passing comment in District of Columbia v. Heller, the 2008 decision in which the Supreme Court first explicitly recognized that the Second Amendment guarantees an individual right to arms.

"Nothing in our opinion," Justice Antonin Scalia wrote for the majority, "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."­ A footnote described those regulations as "presumptively lawful." The Court's 2024 decision in United States v. Rahimi, which involved the federal ban on gun possession by people subject to domestic violence restraining orders, reiterated that description.

As Duarte's lawyers note, there are several problems with relying on these comments to uphold his conviction. First, neither case directly addressed Section 922(g)(1). Second, describing certain restrictions as "presumptively lawful" suggests that presumption might be overcome in some circumstances. Third, the Court in Heller explicitly did not delve into the reasoning for that label, saying "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."

The Court clarified the test for assessing the constitutionality of gun control laws in Bruen. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote in the majority opinion. "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.'"

Under Bruen, the NRA, the Firearms Policy Coalition (FPC), and the Second Amendment Foundation (SAF) argue in their brief supporting Duarte's petition, "all firearm regulations must be justified by historical tradition, including the regulations that Heller labeled 'presumptively lawful.'" That point is illustrated by the Court's take on the New York law at issue in Bruen, which required residents to show "proper cause" for carrying guns in public.

That law, New York claimed, fit the tradition of banning guns in "sensitive places"—one category of regulations that the Court had called "presumptively lawful" in Heller. "Expanding the category of 'sensitive places' simply to all places of public congregation
that are not isolated from law enforcement defines the category of 'sensitive places' far too broadly," Thomas wrote. "Respondents' argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense…Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department."

That analysis, Duarte's lawyers say, suggests "the far more sensible understanding of Heller's dicta is that the Court was simply recognizing the practical reality that certain
measures are more likely to be consistent with historical tradition, not that there is no need to assess whether they actually are. It blinks reality to suggest, as the decision below holds, that Heller meant to immunize a host of 'regulatory measures,' including §922(g)(1), in passing and without any analysis….That much should be obvious given the Court's 'presumptively lawful' description itself, which 'implies that felon-in-possession laws [could] be unlawful in at least some instances.'"

Although the 9th Circuit emphasized "Heller's dicta," it also purported to apply the Bruen test. But the "historical analogues" it identified do not seem "relevantly similar" to Section 922(g)(1), which requires that they resemble that law in motivation and scope.

The appeals court inferred that "legislatures may disarm those who have committed the most serious crimes" (i.e., felonies) because "the greater punishment of death and
estate forfeiture was permissible to punish felons" during the colonial period and in the early years of the Republic. Duarte's lawyers note that "the severe punishments of 'death and estate forfeiture'" had begun to fade away "even before the Founding" and had disappeared "by the time of the Constitution's ratification."

In any case, as Justice Amy Coney Barrett noted in a 2019 dissent as an appeals court judge, "the obvious point that the dead enjoy no rights does not tell us what the founding-era generation would have understood about the rights of felons who lived, discharged their sentences, and returned to society." It surely would be odd to argue, based on that "obvious point," that people with felony records should automatically lose, say, the right to freedom of speech or the right to be free from unreasonable searches and seizures.

Duarte's lawyers also note that "what constitutes a felony today has ballooned" and "is thus nothing like it was at the Founding." The principle that people can be disarmed when they "have committed the most serious crimes" empowers the government to strip individuals of their constitutional rights based on how legislators decide to classify an offense.

The evolution of Section 922(g)(1) illustrates that point. The original version of the ban, enacted in 1938, applied only to violent crimes such as rape, murder, and kidnapping. In 1961, Congress expanded the ban to include any crime "punishable by imprisonment for a term exceeding one year." It thus made Second Amendment rights contingent on the maximum penalties authorized by Congress or state legislatures, without regard to the nature of the offense.

The 9th Circuit also perceived a tradition of disarming "categories of persons" that legislators believe "present a special danger of misuse." To support that proposition, Duarte's lawyers note, the appeals court "cited laws disarming Catholics, Native Americans, slaves, and free Blacks, in addition to laws disarming minors, those of 'unsound mind,' drunkards, and 'tramps.'"

The first set of laws, the 9th Circuit conceded, "reflect[s] overgeneralized and abhorrent prejudices that would not survive legal challenges today." As for the second set of laws, Duarte's petition notes, "none dates back to the Founding." In any case, "all of the
historical laws were temporary restrictions." By contrast, Section 922(g)(1) permanently disarms anyone with a disqualifying criminal record.

"The consequences of the Ninth Circuit's decision to invoke those laws to bless any and all applications of §922(g)(1)'s are perverse," Duarte's lawyers say. "As the majority admitted, its decision means that legislatures are 'permitted to categorically disarm' any disfavored group 'they deem dangerous' with impunity." That position contradicts Bruen's rejection of "judicial deference to legislative interest balancing" in the context of laws that implicate the Second Amendment.

The FPC, the SAF, and the NRA, which also filed briefs supporting Vincent and Zherka, argue that "there is no tradition of disarming peaceable citizens." Historically, they say, "nonviolent criminals—including nonviolent felons—who did not demonstrate a propensity for violence retained the ability to exercise their right to keep and bear arms." In fact, "some laws expressly allowed or even required them to keep and bear arms" for militia service.

Since Bruen, 11 federal appeals courts have addressed the constitutionality of Section 922(g)(1). Seven have ruled that the provision is constitutional in all of its applications. Three, including the 5th and 7th circuits as well as the 3rd, have held that the ban may be unconstitutional in particular cases. The 6th Circuit has agreed with that general position while holding that people who challenge their disqualification under Section 922(g)(1) have the burden of showing they are "not dangerous."

Given that circuit split and all the pending petitions dealing with this issue, the Supreme Court may add another Second Amendment case to its docket this term, in addition to the cases involving the definition of "sensitive places" and the federal ban on gun possession by illegal drug users. If it does, it will have an opportunity to clarify exactly what it meant when it said banning "the possession of firearms by felons" is "presumptively lawful."