The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In U.S. v. Harper, decided Sept. 30, 2022 by Chief Judge Leonard Strand (N.D. Iowa), but just posted on Westlaw, Harper is being prosecuted for being a felon in possession of a gun, as well as possessing a gun while an unlawful drug user. Harper raised, among other things, a RFRA defense, on the theory that "he is a Muslim who practices 'Sharia Law and its adherence to armed self-defense (including the possession of a firearm.).'" No, said the court:
Of course, the Government is not prosecuting Harper for practicing Sharia law. Rather, it is prosecuting him for possessing a firearm based on his status as a felon and unlawful user of a controlled substance and Harper is asserting his practice of Sharia law as a defense…. I must consider whether an accommodation should be made to prosecution under § 922(g)(1) and (3) based on Harper's religious belief that he is entitled to carry a firearm for self-defense that would still further the Government's compelling interest….
"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…. [T]he Supreme Court rejected a uniform application of the law argument in Gonzales v. O Centro (2006), 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. 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." United States v. Hardman (D. Utah 2009). 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….
Note that the felon-in-possession ban does have some exceptions; literally, the statute bans gun possession by those convicted of a "crime punishable by imprisonment for a term exceeding one year," but excludes (in 18 U.S.C. § 921(a)(20)),
(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
It also provides that,
Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
I expect the court could have argued that these exceptions don't undermine the need for uniformity as to felons who have been convicted of violent crimes (as Harper was, given that one of his convictions was for felony assault). Query what the result should be, under RFRA, if (1) defendant sincerely claims a religious obligation to possess a gun for self-defense (assume he is indeed sincere on that), and (2) defendant's past offense was relatively minor, perhaps on par with the offenses that are excluded by § 921(a)(20)(A).