Should Felons Have the Right to Challenge Their Loss of Gun Rights, on a Case-by-Case Basis?

No, said an Eighth Circuit panel in U.S. v. Jackson earlier this year; yesterday, the court refused to rehear the case en banc, so the answer is still no in the Eighth Circuit. Judge David Stras, joined by Judges Ralph Erickson, Steven Grasz, and Jonathan Kobes (a total of four of the eleven judges on the court), dissented from the denial of rehearing:

I have no special affection for felons either, but the Second Amendment does not care. It says what it says, and so do the Supreme Court decisions interpreting it. See generally U.S. v. Rahimi (2024); N.Y. State Rifle & Pistol Ass'n v. Bruen (2022). And what Jackson [II] [the panel decision] says about as-applied challenges conflicts with both.

Start with Rahimi. It was a facial challenge, but the Supreme Court dealt with it by examining whether the statute was "constitutional in some of its applications," including in "Rahimi's own case." It reviewed the historical analogues, surety and going-armed laws, and held that an individual like Rahimi—someone who has been "found by a court to pose a credible threat to the physical safety of another[—]may be temporarily disarmed consistent with the Second Amendment."

If the Court meant to cut off all as-applied challenges to disarmament laws, as Jackson II concludes, it would have been odd to send that message by deciding Rahimi based on how his as-applied challenge would have gone. See id. (stating that "[s]ection 922(g)(8)'s restriction was temporary as applied to Rahimi"); id. (noting that § 922(g)(8) applies "only once a court has found that the defendant represents a credible threat to the physical safety of another"). It would have just announced the law's across-the-board constitutionality and moved on, like Jackson II does.

In fact, Justice Gorsuch wrote separately to make that point clear. As he put it, "Rahimi's facial challenge to § 922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in 'particular circumstances.'" Not a single Justice has suggested otherwise. Not in Heller. Not in Bruen. And certainly not in Rahimi.

Jackson II packs a double whammy. It deprives tens of millions of Americans of their right "to keep and bear Arms" for the rest of their lives, at least while they are in this circuit. And it does so without a finding of "a credible threat to the physical safety" of others, Rahimi, or a way to prove that a dispossessed felon no longer poses a danger. There is no Founding-era analogue for such a sweeping and undiscriminating rule…. "[O]f the states that protected the right to keep and bear arms, none disarmed non-dangerous felons …." …

It gets worse. Jackson II turns constitutional law upside down, insulating felon-dispossession laws from Second Amendment scrutiny of any kind. "Facial challenges are disfavored." But after Jackson II, they are the only kind a felon may bring. See Jackson II (holding that § 922(g)(1)'s constitutionality does not vary "felony-by-felony" or felon by felon). And now, it is impossible to prevail in one.

Clinging to a recycled line from D.C. v. Heller (2008), is no excuse. Heller said only that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," characterizing them as "presumptively lawful regulatory measures." For one thing, this line is dictum because it tells us what Heller did not do rather than what it did. For another, it is just a presumption. As I have explained before, "a measure can be presumptively constitutional and still have constitutionally problematic applications. As-applied challenges exist for exactly this reason." Making the leap from presumptively constitutional to always constitutional, like Jackson II does, is too much for that overused line to bear, no matter how you read it.

Other courts have not made the same mistake. Some have already entertained as-applied challenges. See, e.g., U.S. v. Diaz (5th Cir. 2024) (concluding that Diaz's as-applied challenge to § 922(g)(1) failed but "not foreclos[ing]" others "by defendants with different predicate convictions"); U.S. v. Moore (3d Cir. 2024) (analyzing § 922(g)(1) as applied to a defendant charged with possessing a firearm while on supervised release). Another has recognized their availability. See U.S. v. Williams (6th Cir. 2024) (holding that Bruen and Rahimi require courts to consider as-applied challenges to the felon-in-possession statute); see also U.S. v. Gay (7th Cir. 2024) ("assum[ing] for the sake of argument that there is some room for as-applied challenges"); U.S. v. Duarte (9th Cir. 2024) (VanDyke, J., dissenting from grant of reh'g en banc) (explaining that the government must show that the defendant "likely would threaten or ha[s] threatened another with a weapon" (quoting Rahimi); cf. U.S. v. Price, 111 F.4th 392, 413 (4th Cir. 2024) (en banc) (Agee, J., concurring in the judgment) (recognizing that whether "§ 922(g)(1) is unconstitutional as applied to certain, nonviolent felons … is far from settled"). Jackson II is the post-Rahimi outlier….

"[P]rudence and practicality" cannot be the answer, particularly when Heller, Bruen, and Rahimi "demand[] a test rooted in the Second Amendment's text, as informed by history." Besides, assessing dangerousness is something we ask district courts "to [do] every day" … [such as] during pretrial proceedings and at sentencing …. And so far, it has gone smoothly for the ones that have tried it.

{At least one as-applied challenge has been successful. See U.S. v. Smith (N.D. Okla. 2024) (dismissing a § 922(g)(1) indictment where "the government [did] not show[] that drug possession [was] … linked to violence such that [the defendant] would present a danger to the public if armed" (citation omitted) (emphasis omitted)). Others not so much, but the reason has not been the difficulty of the analysis. See, e.g., U.S. v. Hines (N.D. Ohio 2024) (concluding that the defendant's prior convictions, including one for "improperly handling firearms in a motor vehicle," provided enough evidence of dangerousness); U.S. v. Powell (D.D.C. 2024) (reasoning that the defendant could not have prevailed on an as-applied challenge to § 922(g)(1) because his prior conviction for "assault with a dangerous weapon" made it "easy to conclude that he presents a credible threat to the safety of others"); U.S. v. Vano (D. Kan. Sept. 16, 2024) (upholding the constitutionality of § 922(g)(1) as applied to the defendant because his "prior convictions—one which involved use of a firearm and both which involved physical violence—represent credible threats").}

Jackson II has other problems too. A good place to start is its reliance on the "virtue theory." Rahimi could not have been clearer in rejecting it: no one "may be disarmed simply because he is not responsible." Rahimi (recognizing that Heller and Bruen "used the term 'responsible' to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right," not those who don't). The label is, as the Court observed, imprecise and "vague." But the more fundamental problem is its inconsistency with the Second Amendment's text, which gives the "right to keep and bear arms" to the "people," "the virtuous, the non-virtuous, and everyone in between." Jackson II substitutes one word for another, "law-abiding" for "responsible," but the idea is the same: "disarm[ing] citizens who are … unwilling to obey the law."

Rahimi and Bruen require more. "[M]odern" laws must be "relevantly similar" to their historical counterparts, in terms of both their "burden" and "justifi[cation]." The restriction on domestic abusers could be constitutionally applied to Rahimi, for example, because it was "temporary," lasting only while a restraining order was in place. See also U.S. v. Connelly (5th Cir. 2024) (concluding that historical analogues that disarmed "actively intoxicated" people do not justify indefinitely disarming an "occasional drug use[r]" under § 922(g)(3) because "[t]he Founders … allowed alcoholics to carry firearms while sober (and possess them generally)"). It also "mitigate[d] [the] demonstrated threat[] of physical violence" that he posed, just like Founding-era surety laws that required "reasonable cause to fear an injury, or breach of the peace" before an individual could be completely disarmed.

Jackson II, by contrast, makes no attempt to explain how the burden imposed by the felon-in-possession statute, which lasts for a lifetime, is comparable to any of the Founding-era laws it discusses. Indeed, most left room for "individuals … to show they were not as dangerous as the government thought." The justification gets short shrift too. All Jackson II offers is deference to Congress's blanket determination that a group numbering in the tens of millions and ranging from murderers to ketchup-bottle tamperers categorically "present[s] an unacceptable risk of danger if armed." {Not to mention that many felonies today were not even crimes in the late 18th century.} Courts must decide for themselves whether new restrictions are "analogous" to old ones, not just let the government "effectively declare" they are…. "[I]f the label a legislature gives a certain crime is dispositive to whether a defendant can be disarmed, then we are … merely deferring to legislative interest-balancing" …..

Neither version of Jackson is consistent with the original public meaning of the Second Amendment. Now Jackson II doesn't even follow what the Supreme Court just said about it. The constitutionality of the felon-in-possession statute is as "exceptionally important" as ever, Jackson, so for a second time, I vote to grant.

And here's the panel opinion that Judge Stras and the judges who signed on to his opinion were disagreeing with; that panel opinion was written by Chief Judge Steven Colloton and joined by Judges Lavenski Smith and Duane Benton:

We conclude that the district court was correct that § 922(g)(1) is not unconstitutional as applied to Jackson based on his particular felony convictions. The Supreme Court has said that nothing in D.C. v. Heller (2008), which recognized an individual right to keep and bear arms, "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." See McDonald v. City of Chicago (2010) (plurality opinion) ("We repeat those assurances here."). The decision in Bruen, which reaffirmed that the right is "subject to certain reasonable, well-defined restrictions," did not disturb those statements or cast doubt on the prohibitions. Neither did the decision in Rahimi. Given these assurances by the Supreme Court, and the history that supports them, we conclude that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).

When the Second Amendment's text covers an individual's conduct, the government must justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. History shows that the right to keep and bear arms was subject to restrictions that included prohibitions on possession by certain groups of people. There appear to be two schools of thought on the basis for these regulations. One view is that legislatures have longstanding authority and discretion to disarm citizens who are not law-abiding and are unwilling to obey the law. Jackson contends that a legislature's traditional authority is narrower and limited to prohibiting possession of firearms by those who are deemed more dangerous than a typical law-abiding citizen. While the better interpretation of the history may be debatable, we conclude that either reading supports the constitutionality of § 922(g)(1) as applied to Jackson and other convicted felons, because the law "is consistent with the Nation's historical tradition of firearm regulation."

Restrictions on the possession of firearms date to England in the late 1600s, when the government disarmed non-Anglican Protestants who refused to participate in the Church of England and those who were "dangerous to the Peace of the Kingdom." Parliament later forbade ownership of firearms by Catholics who refused to renounce their faith. An Act for the Better Securing the Government by Disarming Papists and Reputed Papists. The English Bill of Rights established Parliament's authority to determine which citizens could "have arms … by Law."

In colonial America, legislatures prohibited Native Americans from owning firearms. Religious minorities, such as Catholics in Maryland, Virginia, and Pennsylvania, were subject to disarmament. In the era of the Revolutionary War, the Continental Congress, Massachusetts, Virginia, Pennsylvania, Rhode Island, North Carolina, and New Jersey prohibited possession of firearms by people who refused to declare an oath of loyalty.

The influential "Dissent of the Minority," published by Anti-Federalist delegates in Pennsylvania, proposed that the people should have a right to bear arms "unless for crimes committed, or real danger of public injury from individuals." Early legislatures also ordered forfeiture of firearms by persons who committed non-violent hunting offenses. And they authorized punishments that subsumed disarmament—death or forfeiture of a perpetrator's entire estate—for non-violent offenses involving deceit and wrongful taking of property. While some of these categorical prohibitions of course would be impermissible today under other constitutional provisions, they are relevant here in determining the historical understanding of the right to keep and bear arms.

This historical record suggests that legislatures traditionally possessed discretion to disqualify categories of people from possessing firearms to address a danger of misuse by those who deviated from legal norms, not merely to address a person's demonstrated propensity for violence. This conclusion is bolstered by the Supreme Court's repeated statements in Bruen that the Second Amendment protects the right of a "law-abiding citizen" to keep and bear arms. As stated by the D.C. Circuit, "it is difficult to conclude that the public, in 1791, would have understood someone facing death and estate forfeiture to be within the scope of those entitled to possess arms."

On this view, for which there is considerable support in the historical record, Congress did not violate Jackson's rights by enacting § 922(g)(1). He is not a law-abiding citizen, and history supports the authority of Congress to prohibit possession of firearms by persons who have demonstrated disrespect for legal norms of society.

If the historical regulation of firearms possession is viewed instead as an effort to address a risk of dangerousness, then the prohibition on possession by convicted felons still passes muster under historical analysis. Legislatures historically prohibited possession by categories of persons based on a conclusion that the category as a whole presented an unacceptable risk of danger if armed. This history demonstrates that there is no requirement for an individualized determination of dangerousness as to each person in a class of prohibited persons. Not all persons disarmed under historical precedents—not all Protestants or Catholics in England, not all Native Americans, not all Catholics in Maryland, not all early Americans who declined to swear an oath of loyalty—were violent or dangerous persons.

Congress operated within this historical tradition when it enacted § 922(g)(1) to address modern conditions….

The Supreme Court in Heller cited this prohibition on the possession of firearms by felons as one of several "presumptively lawful regulatory measures." Some have taken the phrase "presumptively lawful" to mean that the Court was suggesting a presumption of constitutionality that could be rebutted on a case-by-case basis. That is an unlikely reading, for it would serve to cast doubt on the constitutionality of these regulations in a range of cases despite the Court's simultaneous statement that "nothing in [its] opinion should be taken to cast doubt" on the regulations. We think it more likely that the Court presumed that the regulations are constitutional because they are constitutional, but termed the conclusion presumptive because the specific regulations were not at issue in Heller.

The Court in Rahimi did "not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse." In fact, the Court referred back to its statement in Heller that prohibitions on the possession of firearms by felons are presumptively lawful.

To be sure, the historical understanding that legislatures have discretion to prohibit possession of firearms by a category of persons such as felons who pose an unacceptable risk of dangerousness may allow greater regulation than would an approach that employs means-end scrutiny with respect to each individual person who is regulated. But that result is a product of the method of constitutional interpretation endorsed by Bruen ….

In sum, we conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms. Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons….