Who Are "The People" Protected By The Second Amendment?
Ninth Circuit Overturns Unconstitutional Federal Gun Control Law
Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights
The Ninth Circuit, in U.S. v. Duarte, has joined the Third Circuit's Range decision when the panel vacated Steven Duarte’s conviction for violating 18 U.S.C. § 922(g)(1)1 which makes it a crime for any person to possess a firearm if he has been convicted of an offense punishable by imprisonment for a term exceeding one year.
While the law does not use the term “felon” an offense punishable by imprisonment for a term exceeding one year constitutes what is known as a felony-equivalent charge.
The Ninth Circuit held that the Gun Control Act's ban on firearm possession by felons is in violation of the Second Amendment as applied to convictions for non-violent offenses (at least after they serve their criminal sentences) on the basis it has no Founding-era analogues. The court's opinion is extraordinarily thorough and deserves a deep dive, and so a deep dive it shall get!
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 the government has made clear they plan to seek en banc review. Considering this is a pro-second amendment decision in the Ninth Circuit, en banc review is all but assured.
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.
Following an exhaustive opinion that examines Duarte’s charges in light of Bruen’s text, history and tradition standard:
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.
The Court would hold, 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 would dissent, 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’s 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.
It’s worth noting that any further review sought in this case, whether that comes in the form of an en banc hearing, or a petition for cert 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 expected by the end of June. The question in Rahimi and the question in this case aren't identical, but they share considerable similarities.
However there are several distinctions between these two cases that are worth noting. Range and Duarte brought an as-applied challenge to 18 U.S.C. §922(g)(1) on the grounds that their convictions were for non-violent offenses—
Duarte’s sentence involved vandalism, drug possession, evading a peace officer and for being a felon in possession of a firearm. Range’s sentence is based on a 1995 case in which he pleaded guilty to making false statements about his income to obtain $2,458 of food stamp assistance in violation of a felony-equivalent Pennsylvania law that charged him with welfare fraud.2
It’s hard to imagine a more outrageously arbitrary offense to use as a justification for depriving a person of their constitutionally protected individual right to armed self-defense than incorrectly filling out a government form. Yet, unlike the Ninth Circuit, in Range the Third Circuit would hold that any and all felony convictions put an individual outside the scope of second amendment protections.
Rahimi is concerned with a challenge to 18 U.S.C. §922(g)(8) which prohibits the possession of firearms by persons subject to domestic-violence restraining orders. The Fifth Circuit held that Section 922(g)(8) violates the Second Amendment on its face. App., infra, 7a-27a. The court began by reasoning “Rahimi is included in "the people" and thus within the Second Amendment's scope.”3
While coverage of the Rahimi case is almost always reported on with sensationalistic headlines—
This sort of framing misses the point entirely. While there is certainly a strong case to be made that people who are convicted of a violent crime, such as domestic abuse, have traditionally been prohibited from possessing firearms— a restraining order is not a conviction. Domestic Violence Protection Orders (DVPO) are issued in an “ex parte hearing,” which is a short conversation between the judge and the plaintiff. The judge will ask the plaintiff what acts of domestic violence the defendant committed. If the judge finds that the defendant (the person the case was filed against) committed domestic violence, the judge will grant an “ex parte order.”
18 USC §922(g)(8)4 proposes to deny an individual of their constitutionally protected individual rights based on such allegations as a DVPO, rather than proof. Additionally, an ex parte hearing that strips the defendant of their civil liberties violates the defendant’s due process rights, as it allows the government to take away the defendants firearms without any awareness of the fact that such a decision is even being considered, much less providing them a chance to answer to the allegations made against them.
For more information on the Rahimi case I covered it here and here.
One point I want to briefly make is that I have seen a particular argument being made by several sources who are analyzing and discussing this case entirely from the point of view of a 2A advocate, without accounting for legal and procedural considerations— Arguing that because this opinion came out before the Supreme Court decided the Rahimi case, they will take this decision (Duarte) into consideration as they decide that case (Rahimi). The implication being that because this case and Rahimi are so similar, the Ninth Circuit’s decision will make them look more favorably on deciding in favor of Rahimi.
This is just wishful thinking. If you have been following my coverage of Rahimi, especially the oral arguments, it will be easy to understand why. On the merits, Rahimi was always going to be a very difficult case to win— Any slight hope that perhaps it wasn’t entirely impossible to squeak by with a 5-4 decision in favor of Rahimi was dashed against the proverbial rocks at oral arguments when Rahimi’s attorneys performance before the Court constituted what may very well be the most epic fail by any attorney in Supreme Court history.
If there were any Justices who had come into the Court that day ready to find in favor of Rahimi, his bumbling lawyer clearly talked them out of that position.
Also, this wishful thinking belies all Supreme Court procedure. This case was decided months ago in private conference immediately after oral arguments… If the full final opinion of the Court isn’t already written, they are just making last minutes tweaks, double-checking every jot and tittle. Furthermore, Rahimi does not involve the Court being asked to settle a split in the lower courts.
If these two cases influence each other in any way, it will be a matter of the Court remanding Duarte and Range to the Ninth and Third Circuit (respectively) for reconsideration in light of the Rahimi decision.
Where the Duarte panel’s opinion really shines is in it’s textual analysis—
Duarte 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.
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."
[T]he 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:
[P]roposals in the state ratifying conventions
[L]aws disarming classes of persons, and
[T]he 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.
The generical term used immemorially by the common law, to denote a crime, is felony. True indeed it is, that the idea of felony is now very generally and very strongly connected with capital punishment; so generally and so strongly, that if an act of parliament denominates any new offence a felony, the legal inference drawn from it is, that the offender shall be punished for it capitally. But this inference, whatever legal authority it may now have acquired, is by no means entitled to the merit of critical accuracy. At this moment, every felony does not, in England, receive a punishment which is capital: petit larceny is a felony. At this moment, one felony escapes in England, as it must in all other countries, every degree of punishment that is human: suicide is a felony. At the common law, few felonies, indeed, were punished with death.5
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.'6
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.7
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, 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.
Duarte is an American citizen, and thus one of “the people” whom the Second Amendment protects. The 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. We therefore hold that § 922(g)(1) violates Duarte’s Second Amendment rights and is unconstitutional as applied to him.8
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.
https://www.law.cornell.edu/uscode/text/18/922
62 Pa. Cons. Stat. § 481(a)
United States v. Rahimi, 61 F.4th 443, 451 (5th Cir. 2023)
https://www.ca7.uscourts.gov/pattern-jury-instructions/922_g_final.pdf
James Wilson's Lectures on Law (1789 to 1791), Part 3, Chapter I Of The Nature Of Crimes; And The Necessity And Proportion Of Punishments 38
Lange v. California, 141 S. Ct. 2011, 2023 (2021)
Tennessee v. Garner, 471 U.S. 1, 2 (1985)
Duarte, 69 F.4th at 63