Grant Scherer | Armed and Harmless: Second Amendment Rights for Non-Violent Offenders

Background

In 2022, the Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen rejected the means-end analysis that federal circuits had applied to Second Amendment challenges to firearm regulations in favor of a new, burden-shifting analytical framework. 597 U.S. 1 (2022). Post-Bruen, if the Second Amendment’s plain text covers an individual and their conduct, the Constitution “presumptively protects that conduct.” Bruen, 597 U.S. at 24. The government must then justify its regulation by demonstrating that it is “consistent with the Nation’s historical tradition of firearm regulation.” Id.

In June 2024, the Court of Appeals for the Ninth Circuit, in United States v. Duarte, 101 F.4th 657 (9th Cir. 2024), reviewed the conviction of Steven Duarte under a provision of the Gun Control Act of 1968 that bars the possession of a firearm by any person “who has been convicted of a crime punishable by imprisonment for a term exceeding one year.” See 18 U.S.C. § 922(g)(1).

Duarte was arrested and indicted under § 922(g)(1) after police observed him toss a handgun out of the rear passenger window when the officers began to initiate a traffic stop. Duarte, 101 F.4th at 662. The indictment referenced Duarte’s five prior, non-violent criminal convictions under California state law: vandalism, felon in possession of a firearm, possession of a controlled substance, and two convictions for evading a peace officer. Id. at 662–63. Each of these prior convictions carried a possible sentence of one year or more in prison and, thus, despite being non-violent offenses, constituted predicates for conviction under § 922(g)(1). Id. at 663. Duarte was convicted under § 922(g)(1) and timely appealed. Id.

On appeal, the Ninth Circuit held that § 922(g)(1) violated Duarte’s Second Amendment rights and was unconstitutional as applied to him. Id. at 691. The court’s ruling was the latest in a significant circuit split over whether the Second Amendment right to keep and bear arms extends to non-violent offenders.

Issue

Does a federal ban on felons possessing firearms violate the Second Amendment as applied to non-violent offenders?

The Split

Since the Bruen decision, several circuits have grappled with the new analytical framework used to assess constitutional challenges to firearm regulations. These circuits have addressed aspects of both steps in the Bruen framework: namely, whether non-violent felons are members of “the people” as defined in the Second Amendment; and whether any historical analogue for § 922(g)(1) exists to justify its infringement on the individual right to keep and bear arms. In June, the Ninth Circuit joined the Third Circuit in holding § 922(g)(1) unconstitutional as applied to non-violent offenders. In contrast, the Eighth, Tenth, and Eleventh Circuits have each affirmed § 922(g)(1)’s constitutionality in this context.

The Third and Ninth Circuits

The Third Circuit

Third Circuit jurisprudence exemplifies the circuits’ ongoing struggles to correctly apply the standard established by the Bruen Court. In November of 2022, the panel in Range v. Attorney General United States affirmed the constitutionality of § 922(g)(1) as applied to a defendant convicted under a felony-equivalent welfare charge for making false statements about his income to obtain food stamp assistance. 53 F.4th 262, 266 (3d Cir. 2022) (per curiam), reh'g en banc granted, opinion vacated sub nom. Range v. Att’y Gen. United States of Am., 56 F.4th 992 (3d Cir. 2023), and on reh'g en banc sub nom. Range v. Att’y Gen. United States of Am., 69 F.4th 96 (3d Cir. 2023), cert. granted, judgment vacated sub nom. Garland v. Range, No. 23-374, 2024 WL 3259661 (U.S. July 2, 2024).

Upon application of the Bruen framework, the Range panel made two conclusions: first, that “‘[T]he people’ constitutionally entitled to bear arms are the ‘law-abiding, responsible citizens’ of the polity, Bruen, 571 U.S. at 26, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent.” Range, 53 F.4th at 266. Second, that “even if [the defendant fell] within ‘the people,’ the Government ha[d] met its burden to demonstrate that its prohibition [was] consistent with historical tradition.” Id. at 266, 274–82 (referencing laws disarming non-violent individuals ranging from England’s restoration through colonial America, the revolutionary era, and the ratification debates). Therefore, the panel concluded, Range’s disarmament under § 922(g)(1) was consistent with the Nation’s history and tradition of firearm regulation. Id. at 285.

Yet, only a few months later, the Third Circuit granted Range’s petition for rehearing en banc and vacated the panel’s decision. See Range v. Att’y Gen. United States of Am., 56 F.4th 992 (3d Cir. 2023) (order sur petition for reh’g en banc). On rehearing, the en banc court reversed the District Court’s judgment. Range, 69 F.4th 96, 98. First, it concluded Range was a member of “the people” defined in the Second Amendment by explaining that “‘the people’ as used throughout the Constitution ‘unambiguously refers to all members of the political community, not an unspecified subset.’” Id. at 101 (quoting "District of Columbia v. Heller, 554 U.S. 570, 580 (2008)). Next, it noted that because the criminal histories of the plaintiffs in Heller, McDonald [v. City of Chicago, 561 U.S. 742 (2010)], and Bruen were not at issue, “their references to ‘law-abiding, responsible citizens’ were dicta.” Id.

Further, the en banc court rejected the Government’s reliance on the Heller Court’s statement that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” and Justice Kavanaugh’s Bruen concurrence to the same effect. Id. at 103 & n.7 (noting that neither Heller, McDonald, nor Bruen cited any such “longstanding prohibitions”). Finally, the en banc court dismissed the Government’s proffered historical analogues for § 922(g)(1) because (a) the earliest version of the statute “applied only to violent criminals,” and (b) neither the original nor current versions of the statute were enacted during the pertinent Founding or Reconstruction time periods. Id. at 104.

The Ninth Circuit

In Duarte, the Ninth Circuit closely echoed the Third Circuit’s analysis in Range regarding the issue whether felons were included in “the people” to whom the Second Amendment’s protections extended. 101 F.4th at 672. The court acknowledged as much, stating “we join the growing number of circuits to give authoritative weight to Heller's ‘national community’ definition for ‘the people.’” Id. (citing Range, 69 F.4th at 101). In rejecting a definition of “the people” encompassing only the “virtuous citizenry,” id. at 675, the court cited Heller’s distinction between the “idiomatic” meaning of the term as used in parts of the Constitution concerning the exercise or reservation of the powers of the people and the “term of art” definition used regarding the individual rights of the people. See id. at 676. The court clarified that, “when used to describe the fundamental rights of individuals . . . ‘the people’ took on the much broader ‘all-citizens’ definition . . . ” Id.

While addressing the Government’s burden to demonstrate that § 922(g)(1) as applied to Duarte was “consistent with this Nation’s historical tradition of firearm regulation,” Bruen, 597 U.S. at 34, the Ninth Circuit delved deeper into the type of historical analogue the Government would have to show than the en banc Third Circuit did in Range. Duarte, 101 F.4th at 677. Specifically, the court noted that, since § 922(g)(1) “takes aim at ‘[] gun violence’ generally, which is a ‘problem that has persisted [in this country] since the 18th century,’ Bruen, 597 U.S. at 26 . . . ‘the lack of a historical regulation’ that is ‘distinctly similar’ to § 922(g)(1) is strong if not conclusive ‘evidence’ that the law ‘is inconsistent with the Second Amendment . . . ’” Duarte, 101 F.4th at 677 (emphasis added) (citing Bruen, 597 U.S. at 27).

The court proceeded to conclude that the Government’s proffered analogues—Second Amendment draft proposals from Founding era state conventions and a laundry list of laws cited in Range—were “not ‘distinctly similar’ to § 922(g)(1) in both ‘how and why’ these laws burdened the Second Amendment right.” Duarte, 101 F.4th at 680. The court further echoed the en banc Third Circuit in noting that “§ 922(g)(1) is now far broader and far less case-specific” than its earlier incarnation, the Federal Firearms Act of 1938, which originally covered a limited set of violent crimes such as murder, rape, kidnapping, and burglary. Id. at 688

The court conceded that “‘the 18th-and 19th-century’ laws traditionally punishing these certain felonies with death, estate forfeiture, or a life sentence [may be] the closest things to ‘longstanding’ felon firearm bans that Heller had in mind.” Id. at 689–90. It noted that these types of laws could reasonably serve as historical analogues under Bruen’s framework for largely modern crimes—e.g., drug trafficking—that pose substantial risks of confrontation leading to immediate violence. See id. (citing United States v. Alaniz, 69 F.4th 1124 (9th Cir. 2023)). Where the court drew the line, however, was at allowing the Government to define any crime as a felony and thereby use it as the basis for a § 922(g)(1) conviction. See id. “Based on this record,” the court concluded, “we cannot say that Duarte's predicate offenses were, by Founding era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.” Id. at 691.

The Eighth, Tenth, and Eleventh Circuits

The Eighth Circuit

In United States v. Jackson, the Eighth Circuit affirmed the district court’s judgment that § 922(g)(1) was constitutional as applied to the appellant Jackson based on his felony convictions. 69 F.4th 495, 501 (8th Cir. 2024), vacated, --- S. Ct. ---, 2024 WL 3259675 (mem.).

Addressing the scope of the Second Amendment’s protection, the Eighth Circuit relied on the Third Circuit panel’s vacated opinion concluding that “Heller, McDonald, and Bruen provide a window into the Court's view of the status-based disarmament of criminals: that this group falls outside ‘the people’—whether their crimes involved violence . . . ” Id. at 502 (quoting Range, 53 F.4th 262, 273). But the court further noted that, even under Jackson’s reading of the historical scope of the Second Amendment—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—§ 922(g)(1) would be constitutional because it “is consistent with the Nation’s historical tradition of firearm regulation.” Id. (quoting Bruen, 597 U.S. at 24) (internal quotation marks omitted).

The court then turned to historical analogues indicating a history and tradition of disarming even non‑violent felons. Id. at 502–05. In support of § 922(g)(1)’s constitutionality under a ‘law‑abiding citizen’ reading of the Second Amendment’s scope, the court referenced a host of laws disarming citizens—or providing for capital punishment, thus incorporating disarmament—for non‑violent crimes ranging from hunting offenses to deceit and wrongful taking of property.  Alternatively, under the appellant Jackson’s ‘dangerousness’ reading of the Second Amendment’s scope, the court pointed to laws such as the Gun Control Act of 1968 as relevant historical analogues indicating a history and tradition of Congress prohibiting entire “categories of presumptively dangerous persons from transporting or receiving firearms.” Id. at 505 (quoting Lewis v. United States, 445 U.S. 55, 64 (1980)).

The Tenth Circuit

In Vincent v. Garland, the Tenth Circuit affirmed the constitutionality of § 922(g)(1) as applied to non‑violent felons in a short opinion echoing the Range panel’s emphasis on the Court’s discussion in Heller that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[,]” and its description of these regulations as “presumptively lawful.” 80 F.4th 1197, 1201 (quoting Heller, 554 U.S. at 626–27 & n.26) (internal quotation marks omitted). Noting Justice Alito’s concurrence in the Court’s Bruen opinion that “we [have not] disturbed anything that we said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns[,]” Bruen, 597 U.S. at 72, the Tenth Circuit concluded that Bruen had not “indisputably and pellucidly abrogate[d]” its precedent upholding § 922(g)(1) as constitutional because, under its own precedent, it had “no basis to draw constitutional distinctions based on the type of felony involved.” Vincent, 80 F.4th at 1202.

The Eleventh Circuit

The Eleventh Circuit followed suit a year later in United States v. Dubois when it held that Bruen had not abrogated its circuit precedent upholding the constitutionality of § 922(g)(1). 94 F.4th 1284 (11th  Cir. 2024). Similarly to the Tenth Circuit’s reasoning in Vincent, the Eleventh Circuit emphasized the Heller Court’s statement that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . .” and noted the Bruen Court’s subsequent position that its holding was “in keeping with Heller[.]” Id. at 1291, 1293. Further, the Eleventh Circuit reasoned that Bruen’s disapproval of the means‑end analysis employed after Heller did not affect Eleventh Circuit precedent because the court had never applied that type of analysis in cases involving Second Amendment challenges to felon‑in‑possession bans such as § 922(g)(1). Id. at 1292. For these reasons, the Eleventh Circuit concluded that “clearer instruction from the Supreme Court” was required to reconsider the constitutionality of § 922(g)(1).

Looking Forward

In United States v. Rahimi, the Court considered the constitutionality of 18 U.S.C. § 922(g)(8), which prohibits an individual subject to a domestic violence restraining order from possessing a firearm when the order includes a finding that the individual “represents a credible threat to the physical safety of [an] intimate partner” or a child of the partner or individual. 144 S. Ct. 1889, 1894 (2024). In affirming the facial validity of § 922(g)(8), the Court emphasized that Bruen required only a “historical analogue” rather than a “historical twin.” Id. at 1903 (emphases added).

While Rahimi served to clarify the more lenient historical analogue requirement established in Bruen, its effect on other federal firearm regulations is less clear. The Court upheld § 922(g)(8) by concluding that valid historical analogues existed for bans on firearm possession where individuals pose a “credible threat” to others’ safety. Rahimi, 144 S. Ct. at 1902–03. Yet in the cases comprising this circuit split, the question whether historical analogues exist for a federal statute banning firearm possession by individuals who have not been found to pose a risk of violence is much murkier. Further, the Rahimi Court expressly rejected the Government’s “contention that [an individual] may be disarmed simply because he is not ‘responsible.’” Id. at 1903. Though it acknowledged its own use of the term alongside “law‑abiding” in Heller and Bruen, the Rahimi Court asserted that neither decision defined the vague term “responsible” nor said anything about the status of citizens deemed not responsible. Id.

Obvious tension exists between the Court’s opinions in Heller and Bruen, its opinion in Rahimi, and the opinions of the Third and Ninth Circuits. As of today, it is unclear what direction the circuits or the Court will take regarding the Second Amendment’s scope as applied to non‑violent felons. On petition for certiorari, the Court has vacated and remanded Range, Jackson, and Vincent for reconsideration considering its decision in Rahimi. See Garland v. Range, No. 23-374, 2024 WL 3259661 (U.S. July 2, 2024); Jackson v. United States, No. 23-6170, 2024 WL 3259675 (U.S. July 2, 2024); Vincent v. Garland, No. 23-683, 2024 WL 3259668 (U.S. July 2, 2024).

It seems likely that upon rehearing these cases, the circuits will need to address the validity of relying on the Court’s references to “law‑abiding, responsible citizens,” Heller, 554 U.S. 570, 635, in determining the Second Amendment’s scope, given the Rahimi Court’s suggestion that these references were merely dicta. Rahimi, 144 S. Ct. at 1903. Moreover, circuits on both sides of the split will need to re‑evaluate the historical precedent for § 922(g)(1) considering the more lenient “analogue‑not‑twin” standard that the Rahimi Court reiterated as the core of its decision in Bruen.

Thus, while the clarity of instruction that the circuits have sought since Bruen has yet to materialize, it may be forthcoming as the Third, Eighth, and Tenth circuits reconsider cases in light of Rahimi, and the Supreme Court may eventually weigh in as well.