State Appellate Judge on the Second Amendment and Felons

From Alaska Court of Appeals Judge Timothy Terrell's concurrence Wednesday in Ivyories v. State:

I write separately to set out my view that the Second Amendment does not permit persons convicted of nonviolent felonies to be deprived of their gun rights after they have served their sentence and any post-release supervision period….

A majority of federal circuit courts have continued to rely on the language from the United States Supreme Court in Heller and succeeding cases and have concluded that statutes prohibiting felons from possessing firearms do not violate the Second Amendment. But the Third Circuit has rejected this view and concluded that persons convicted of nonviolent felonies should not necessarily permanently lose their gun rights. Other circuits have leaned toward that approach or left open the issue of whether some felons (particularly nonviolent felons) may have a viable as-applied challenge to felon-in-possession bans.

I agree with the Third Circuit and write separately to add my voice to the list of judges and courts who have concluded that felon-in-possession bans are unconstitutional as applied to those persons convicted of nonviolent felonies. I recognize that, in Alaska, this issue is currently governed by the Alaska Supreme Court's decision in Farmer v. State. Accordingly, I will not analyze the underlying legal issues in detail. However, cognizant of the possibility that the Alaska Supreme Court may choose to revisit its holding in Farmer, I note below the cases pertinent to the key issues and lay out other jurists' observations that are helpful in thinking about the scope of the Second Amendment.

Why the Alaska Supreme Court has a valid basis to revisit its holding in Farmer v. State

Looking at the issue in a vacuum (without the Farmer holding), I agree with those federal circuit courts that have concluded that the statements in Heller and later Supreme Court decisions about the validity of felon-in-possession bans do not resolve whether the Second Amendment permits the permanent disarmament of persons convicted of nonviolent felonies.

First, with respect to Heller's statement that felon-in-possession bans fall into the category of "presumptively lawful measures," I agree with Ninth Circuit Judge Lawrence VanDyke's recent partial dissent in United States v. Duarte, where he stated the following:

The majority extracts from Heller's footnoted statement that felon-in-possession laws are "presumptively lawful" the apparent per se rule that all felon-in-possession laws are constitutional, warranting "the categorical application of § 922(g)(1) to felons." … But "[m]aking the leap from presumptively constitutional to always constitutional … is too much for that overused line to bear, no matter how you read it."

Heller speaks only in terms of a presumption. A presumption must be defeasible. So the Court's statement that felon-in-possession laws are only presumptively lawful implies that felon-in-possession laws must be unlawful in at least some instances. And it is especially unusual to put such weight on Heller's dicta that felon-in-possession laws are presumptively constitutional, because it is black-letter law that all legislation is entitled to a presumption of constitutionality. But no one thinks that that longstanding presumption gives statutes passed by Congress blanket immunity from searching constitutional scrutiny.

Second, as the Sixth Circuit pointed out in United States v. Williams, the validity of felon-in-possession statutes was not at issue in Heller, so the Court's statements about such statutes were dicta, which should not be applied uncritically to determine whether the statutes violate the Second Amendment. The Sixth Circuit also noted that reexamination of the issue was appropriate because Bruen had changed the required method of analysis for Second Amendment claims.

Third, although Heller and Bruen referred to the Second Amendment rights of "law-abiding, responsible" persons, the Rahimi Court disagreed with the United States's use of this language when it argued that gun rights belong only to the responsible. The Court noted that while such citizens are undoubtedly among the class of persons who enjoy Second Amendment rights, it had not meant to suggest that this was a limitation on the class of persons who possessed such rights.

Given the recent developments in Second Amendment case law, the Alaska Supreme Court would be entitled to reexamine the constitutionally permissible scope of Alaska's felon-in-possession statute, AS 11.61.200, i.e., whether persons convicted of nonviolent felonies may be prevented from possessing concealable firearms for ten years after they have been discharged from their sentence.

Preliminary observations about when felon-in-possession bans may be applied to persons convicted of nonviolent felonies

I note that I am not advancing a categorical argument that firearms bans can never be applied to persons convicted of nonviolent felonies.

First, whether convicted of a violent or a nonviolent felony, all felons temporarily lose the right to possess firearms while they are serving their sentence in prison. As a Third Circuit judge recently observed, "It is as ancient as it is obvious that a person who is imprisoned or otherwise confined does not have the right to bear arms for the duration of confinement."

Second, governments have passed statutes that continue this disability after the inmate is released from prison on parole, probation, or other forms of supervised release, and courts have analyzed whether such restrictions are permitted by the Second Amendment. My concurrence only concerns firearms bans that continue in effect after a felon has been unconditionally discharged from service of their sentence.

Felons are among "the people" protected by the Second Amendment

I turn now to the first step of the two-step analysis for Second Amendment claims set out in Bruen — determining whether "the Second Amendment's plain text covers an individual's conduct." In deciding the first step of the Bruen analysis, courts have grappled with the question of whether felons are among "the people" protected by the Second Amendment, which provides in pertinent part that "the right of the people to keep and bear Arms, shall not be infringed."

As then-Judge Barrett explained in her dissent in the Seventh Circuit's decision in Kanter v. Barr, there are two approaches to evaluating what persons and groups fall within the Second Amendment's coverage:

There are competing ways of approaching the constitutionality of gun dispossession laws. Some maintain that there are certain groups of people — for example, violent felons — who fall entirely outside the Second Amendment's scope. Others maintain that all people have the right to keep and bear arms but that history and tradition support Congress's power to strip certain groups of that right. These approaches will typically yield the same result; one uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature's power to take it away.

Initially, there seemed to be a consensus among scholars, relying on what has been termed the "virtuous citizenry" theory, that the right to bear arms could be taken away from those persons who had removed themselves from the community of virtuous, law-abiding citizens by engaging in felony conduct, and some circuit courts adopted that view. But the Supreme Court cast doubt on the viability of that theory in Rahimi when it rejected the government's argument that the Second Amendment's protections extend only to "law-abiding, responsible" persons and found the term "responsible" too vague. Moreover, many federal circuit courts — including those that have upheld the validity of felon-in-possession bans as applied to nonviolent felons under the Bruen analysis — have now concluded that felons do fall presumptively within the scope of the Second Amendment's protections, i.e., felons are part of "the people" protected by the Second Amendment. I find the analysis of these courts persuasive and conclude that felons are part of "the people" protected by the Second Amendment and do not fall categorically outside its scope.

There is no past analogue for disarming nonviolent felons

The second step of the Bruen analysis requires courts to examine whether there is a historical analogue of government firearm regulation that is sufficiently similar to the challenged law so as to support the conclusion that the government may validly enforce the statutory firearms limitation. I agree with those courts and judges that have concluded there is no long-standing historical analogue for permanent disarmament of felons, much less those convicted of nonviolent felonies. As the Ninth Circuit stated in United States v. Chovan:

[I]t is not clear that such prohibitions are so longstanding. The first federal firearm restrictions regarding violent offenders were not passed until 1938, as part of the Federal Firearms Act. See C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol'y 695, 698, 708 (2009) (noting that "one can with a good degree of confidence say that bans on convicts possessing firearms were unknown before World War I").

I recognize that these decisions are currently a minority among the circuit courts. But I agree with the Sixth Circuit in Williams that the real lesson of all the historical analogues put forth in defense of disarmament provisions is that it is only permissible to disarm persons or groups who pose a real risk of physical violence to others. It is dangerousness that is the touchstone of the ability to disarm. {Some courts have concluded that it is not necessary that a crime be one that always involves violence and that some crimes, such as drug trafficking, have such a substantial connection to violence that a person convicted of that offense may be prohibited from possessing firearms. I express no view other than to note that a strict dichotomy between crimes that are invariably committed by violence and crimes that may be committed without violence may not necessarily be the appropriate standard for assessing an as-applied challenge to a felon-in-possession statute.} I find it an unacceptable diminishment of the Second Amendment that a person who commits a nonviolent felony, such as tax fraud, loses their gun rights, even after they have completely served their sentence.

{The statute at issue in this case, AS 11.61.200, only generally imposes a ten-year ban on the possession of concealable firearms (running from the date of unconditional discharge on the prior felony), not a lifetime ban. But a ban of such length clearly impinges on constitutional rights. As applied to persons convicted of violent felonies, such a ban is constitutional for the reasons set out in State v. Eberhardt (La. 2014). As to the fact that this statute only bars the possession of concealable firearms, i.e., handguns, and does not prohibit the possession of long guns, that contention was addressed in Heller, where the Supreme Court stated that "[i]t is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed." The Court went on to state, "It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon."}

I believe that when the United States Supreme Court is squarely faced with the question of whether persons convicted of nonviolent felonies may successfully raise an as-applied challenge to felon-in-possession statutes, it will answer this question in the affirmative. I agree with Justice Barrett's observation that "the Second Amendment is not absolute" and that it permits regulation that is consistent with our Nation's tradition of firearm regulations, but it is also the case that Second Amendment rights are not second-class constitutional rights. The justifications for disarming nonviolent offenders are insufficient to strip away this fundamental right from persons who have fully served their sentences.