The Volokh Conspiracy
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Second Amendment Roundup: Just in Time for the Supreme Court to Consider in Rahimi
The Ninth Circuit invalidates the felon gun ban for non-violent offenses with no Founding-era analogues.
The Ninth Circuit, in U.S. v. Duarte, has joined the Third Circuit's Range decision in holding the Gun Control Act's ban on firearm possession by felons (18 U.S.C. § 922(g)(1)) in violation of the Second Amendment as applied to convictions for non-violent offenses that have no Founding-era analogues. Prof. Volokh summarized the decision when it was released on May 9. The court's opinion is extraordinarily thorough and deserves a deeper dive.
The opinion was written by Senior Judge Carlos Bea and joined by Judge Lawrence VanDyke. Judge Milan D. Smith, Jr., dissented and expressed hope for an en banc rehearing, which is all but automatic when a Ninth Circuit panel renders a decision favorable to the Second Amendment. The decision will undoubtedly be considered by the Supreme Court Justices in deciding Rahimi, which involves the ban on gun possession by a person subject to a domestic violence restraining order, and in disposing of Range, another felon case which may be taken up by the Court or remanded for reconsideration in light of Rahimi.
At the textual level, Durate states, the right to bear arms is guaranteed to "the people," which per Bruen refers to "all Americans," not an "unspecified subset." While Heller stated that the Amendment protects "the right of law-abiding, responsible citizens to use arms" for self-defense, the universe of "the people" is larger. (I suggest thinking of the two-circle Venn diagram – law-abiding citizens are the subset and they are within the larger superset of "the people.")
While Heller referred to "longstanding prohibitions on the possession of firearms by felons" as among the "presumptively lawful regulatory measures," Bruen expressly requires courts to assess whether a restriction "is consistent with this Nation's historical tradition of firearm regulation." The felon ban was not an issue in Heller, and "the Court has yet to explore this country's history of banning felons from possessing firearms."
That's where the Duarte panel hits a home run, noting the need for "distinctly similar" historical regulations given that violence with firearms is a "problem that has persisted [in this country] since the 18th century." The government sought historical regulations from three sources: proposals in three of the state ratifying conventions, laws disarming classes of persons, and the historical practice of executing felons.
First, like some other courts, Duarte notes that proposals related to disarming criminals in three state ratifying conventions failed to pass. But read carefully, they "allude to a possible tradition of disarming a narrow segment of the populace who posed a risk of harm because their conduct was either violent or threatened future violence." The New Hampshire proposal would have allowed disarming those who "are or have been in actual rebellion," a crime that denoted violence. Samuel Adams' proposal in the Massachusetts convention would have protected the arms right for "peaceable" citizens, but in the common-law context that meant disarming those who bore arms in a manner "to terrorize the people." The draft of the Pennsylvania minority to disarm persons "for crimes committed, or [for] real danger of public injury" is best understood as referring to a narrower "subset of crimes [that] suggest[ed] a proclivity for violence."
Second, as elsewhere, the government lined up the usual suspects of purported historical analogues – the disarming of British Loyalists, Catholics, Indians, and slaves. But those laws fail both the "why" and the "how" of Bruen's analogical test.
The British Loyalist "swore himself out of 'the people' by refusing his oath of allegiance," but his arms could be restored if he was no longer "disaffected." The government cited only three colonial laws disarming Catholics, and those laws reflected the perception that Catholics "acknowledge[ed] a foreign power, superior to the sovereignty of the kingdom." Laws prohibited selling arms to Indians, but did not ban gun possession by Indians, who were members of another political community "with whom the colonies were frequently at war." As to laws disarming slaves and free blacks (an "analogue" the government embarrassingly dropped in Rahimi), they "fell outside 'the people' entitled to Second Amendment protection."
In short, the reasoning for disarming these classes "does not carry over to the nonviolent offender who served his prison term," and the "how" and "why" for such laws are not "distinctly similar" to § 922(g)(1) "to justify its blanket ban on non-violent felons possessing firearms."
Third, the government argued that the Founding generation understood felons to have no right to possess firearms because they faced death and total estate forfeiture for their crimes. But as Founder James Wilson wrote in his Lectures on the Law (1791), even in England "few felonies, indeed, were punished with death." Moreover, the concept of a "felony" today has skyrocketed beyond recognition. As the Supreme Court wrote in Lange v. California (2021), which held that the flight of a suspected misdemeanant does not always justify a warrantless entry into a home: "Even as the newly formed states filled the pages of their penal codes with new felonies each passing year, '[t]he felony category' at the Founding still remained 'a good deal narrower [then] than now.'" Similarly, an officer cannot shoot a fleeing felon, the Court said in Tennessee v. Garner (1985), because "[m]any crimes classified as misdemeanors, or nonexistent, at common law are . . . felonies" today.
That said, the Duarte court continues, "it may well be that 'the 18th- and 19th-century' laws traditionally punishing certain felonies with death, estate forfeiture, or a life sentence are the closest things to 'longstanding' felon firearm bans that Heller had in mind." Moreover, some new crimes are sufficiently "relevantly similar" to Founding-era crimes to be consistent with the Second Amendment: "Like burglary or robbery, [modern-day] drug trafficking plainly poses substantial risks of confrontation that can lead to immediate violence."
However, no historical basis exists to disarm a person permanently merely for conviction of "a[ny] crime punishable by imprisonment for a term exceeding one year," based solely on that label. Steven Duarte was convicted of vandalism, which was a misdemeanor at common law; felon in possession of a firearm, which was not a crime at the Founding; and drug possession and evading a peace officer, which were not shown to be crimes with an analogous, Founding-era predecessor.
As an American citizen, Duarte is among "the people," and "[t]he Second Amendment's plain text and historically understood meaning therefore presumptively guarantee his individual right to possess a firearm for self-defense. The Government failed to rebut that presumption by demonstrating that permanently depriving Duarte of this fundamental right is otherwise consistent with our Nation's history." Section § 922(g)(1) is thus unconstitutional as applied to him.
In short, Duarte builds on now-Justice Amy Coney Barrett's dissent in Kanter v. Barr and the Third Circuit's en banc decision in Range, taking the analysis to a new height. There will undoubtedly be further guidance from the Court in Rahimi with which to access whether the classification of all persons convicted of any crime punishable by over a year in prison have forfeited Second Amendment rights for their lifetimes.
