The Volokh Conspiracy

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Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights


Today's U.S. v. Duarte, written by Judge Carlos Bea and joined by Judge Lawrence VanDyke, concludes that the Second Amendment protects some felons (at least after the end of their criminal sentences). The majority begins with the principle that:

[The Supreme Court's decision in] Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment's plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government's burden to prove that the challenged law is consistent with this Nation's historical tradition of firearm regulation.

It reasons, much historical analysis later, that:

A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are "distinctly similar" to Duarte's underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender's estate.

And, the majority concludes, this defendant's particular past convictions—for vandalism, drug possession, evading a peace officer, and being a felon in possession of a firearm—did not qualify.

Judge Milan Smith dissents, concluding that pre-Bruen Ninth Circuit precedent categorically holds that all felons lack Second Amendment rights; the majority and the dissent disagree on whether Bruen overruled that precedent. The dissent, in particular, argues that (1) Bruen "repeatedly limited its definition of the scope of the right to 'law-abiding' citizens, using that phrase no fewer than fourteen times throughout the opinion," (2) "Nothing … in Bruen reflects a retreat from the Court's earlier statement in Heller that 'longstanding prohibitions on the possession of firearms by felons and the mentally ill' are 'presumptively lawful,'" and (3) concurrences in Bruen reaffirmed the Heller view with regard to felons.

The panel majority responds, among other things, that "we do not think that the Supreme Court, without any textual or historical analysis of the Second Amendment, intended to decide the constitutional fate of so large a population in so few words and with such little guidance…. [W]e agree with the Third Circuit that Bruen's scattered references to 'law-abiding' and 'responsible' citizens did not implicitly decide the issue in this case." It also takes the view that, "'Simply repeat[ing] Heller's language' about the 'presumptive[] lawful[ness]' of felon firearm bans will no longer do after Bruen," given Bruen's call for a historical analysis, and given that "the historical pedigree of felon firearm bans was never an issue the Heller Court purported to resolve."

The government will very likely petition for rehearing and for en banc review in this case. That review will probably be influenced by the Supreme Court's Rahimi case, which deals with whether people subject to domestic violence restraining orders lose their Second Amendment rights, and which is due to come down from the Court by June 30. The question in Rahimi and the question in this case aren't identical, but they share considerable similarities.

Note also that the government has already asked the Supreme Court to consider the Third Circuit's Range case, which reached a similar result. That the petition is being held, pending Rahimi. It seems likely that the Court will instruct the Third Circuit to reconsider the question in light of the Rahimi holding, just as the Ninth Circuit panel (and perhaps the en banc court) will be doing the same.