The Volokh Conspiracy

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No Religious Exemption from Felon-in-Possession Gun Ban for Muslim Believer in Self-Defense


From U.S. v. Harper, decided Friday by Judge Leonard Strand (N.D. Iowa):

[Harper is being prosecuted for] possession of a firearm by a felon and unlawful drug user in violation of 18 U.S.C. §§ 922(g)(1) and (3) and § 924(a)(2)…. Harper argues that [he is entitled to a religious exemption from these laws because] he is a Muslim who practices "Sharia Law and its adherence to armed self-defense (including the possession of a firearm.)." …

"Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment." RFRA provides that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the Government "demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that compelling governmental interest." "RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." …

I will assume without deciding that Harper's practice of possessing a firearm for self-defense was a sincerely held religious belief and that prosecution substantially burdened his exercise of religion. Therefore, it is the Government's burden to prove that prosecution of Harper is in furtherance of a compelling government interest and that it is the least restrictive means of furthering that interest. The Government argues "the gun control regime of the United States is a compelling governmental interest and can only be maintained by a systematic and uniform application."

Courts have recognized that the uniform enforcement of laws is a compelling interest in some, but not all cases. As Judge Mahoney noted, the Supreme Court rejected a uniform application of the law argument in Gonzales v. O Centro, noting that it relied solely on slippery-slope concerns (if we allow one accommodation, we will have to allow other accommodations). It distinguished other cases in which a uniform application argument was accepted, noting that "the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program."

The Court added: "We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA." It found that those circumstances were not present in O Centro "given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance." It stated the Government also had not offered evidence demonstrating that granting an exemption would cause the kind of administrative harm recognized as a compelling interest.

Here, the Government cited cases recognizing the importance of uniform application and enforcement of immigration, drug distribution and drug use laws. Doc. 38 at 6-7. It has not cited a case recognizing that import as to gun laws, nor have I been able to locate such as a case. In United States v. Epstein (D.N.J. 2015), the court considered a RFRA defense to kidnapping charges. It distinguished O Centro by noting that the Government's stated interest in that case was to protect the health of those religious users while in Epstein it was to protect the health and safety of individuals who were victims of the alleged kidnapping. The court also emphasized that based on the charges at issue, the Government unquestionably had a compelling interest in applying kidnapping laws uniformly, noting "[i]t is beyond cavil that 'the duty to prosecute persons who commit serious crimes is part and parcel of the government's paramount responsibility for the general safety and welfare of all its citizens.'" It concluded the Government had shown a compelling interest in the uniform application of kidnapping and conspiracy laws and no exception could be made for prosecuting the defendants.

While the Epstein court emphasized that the crimes at issue were crimes of violence, similar reasoning applies to prosecutions under § 922(g)(1), as they primarily seek to prevent harm to others. The Government has demonstrated a compelling interest in public safety and preventing crime through the uniform enforcement of gun control laws.

With regard to whether Harper's prosecution is the least restrictive means of furthering the Government's compelling interest, courts have recognized that "the existence of government-sanctioned exceptions to a scheme purporting to be the least restrictive one possible can show that other, less-restrictive alternatives could be envisaged." For instance, in O Centro, the Court noted there was a "well-established" peyote exception to the CSA. This undercut the Government's argument that prosecution was the least restrictive means of uniformly applying the CSA because it was already inconsistently applying it with some identified exceptions. I am not aware of any exceptions under § 922(g)(1) or (3). Here, the Government cannot uniformly apply its gun control laws for public safety and the prevention of crime under § 922(g)(1) or (3) without prosecuting Harper. As such, I find it is the least restrictive means to furthering the Government's compelling interest….