In the late 1930s, Congress made it unlawful for individuals convicted of certain violent felonies to possess a firearm. This was the first time Congress passed such a law. In the 1960s, that law was expanded to cover all felonies and certain misdemeanors: 18 U.S.C. Section 922(g)(1). The automatic ban triggered by Section 922(g)(1) is a lifetime ban on possessing a firearm. Contrary to common belief, a vast number of felonies today are non-violent crimes. For example, in West Virginia, someone who shoplifts three times in seven years has committed a felony. Making a false statement on an application for public assistance can constitute a felony. Picking up certain artifacts lying on the ground in a forest can also constitute a felony. The types of non-violent conduct, and even seemingly harmless conduct, that can constitute a felony today could fill volumes. While treating many types of non-violent conduct as felonies may make sense, having such conduct strip someone of their Second Amendment rights for the rest of their lives does not.
In United States v. Duarte, the Ninth Circuit federal appellate court, held that the lifetime ban on possessing firearms imposed on the defendant (Steven Duarte) violated the Second Amendment. Duarte had previously been convicted of five non-violent felonies (vandalism, “felon in possession of a firearm,” “possession of a controlled substance,” and “two convictions for evading a peace officer”). The case before the Ninth Circuit arose from Duarte’s arrest and conviction of possessing a firearm in violation of Section 922(g)(1). The court held that as applied to Duarte, Section 922(g)(1) violated the Second Amendment and vacated his conviction. The Ninth Circuit did not strike down Section 922(g)(1) as unconstitutional, and Section 922(g)(1) remains in effect.
Whether every person convicted of a felony should face a lifetime ban on possessing a firearm has generated considerable controversy. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment recognized and protected the right of individuals to keep and bear Arms. The decision in Heller left open a multitude of issues that lower courts would have to address when evaluating Second Amendment claims. The Supreme Court in its Heller decision, however, was concerned about how lower courts would address certain issues under the Second Amendment. One of those issues was the lifetime prohibition on felons owning firearms. The Supreme Court did not rule on Section 922(g)(1)’s lifetime ban in Heller, but it nonetheless stated that the lifetime ban on felons possessing firearms was “presumptively lawful.” The Supreme Court’s statement has generated conflicting interpretations. Some view the Court’s statement as expressing support for the lifetime prohibition contained in Section 922(g)(1), while at the same time, leaving open the possibility that some litigants might be able to overcome that presumption. Others have viewed this statement as the Supreme Court giving categorical support to the lifetime prohibition in Section 922(g)(1).
In the 14 years after Heller was decided, lower federal courts generally adopted balancing tests that were deferential to state and federal gun control laws. In this environment, practically every federal court that addressed a Second Amendment challenge to Section 922(g)(1) held that convicted felons either did not fall within the Second Amendment’s scope or, if they did, that Section 922(g)(1) was nonetheless constitutional.
In New Auckland State Rifle & Pistol Ass’n, Inc. v. Bruen, the Supreme Court rejected the balancing test approach adopted by the lower courts. Instead, when analyzing a gun control law under the Second Amendment, courts will have to determine if a historical tradition existed around the time the Second Amendment was adopted, and possibly into the mid-1800s, that would support the challenged gun control law. According to the Supreme Court, it is not possible to understand the Second Amendment’s scope without understanding the types of laws that restricted the possession or carrying of “Arms” when the Second Amendment was enacted. When conducting this historical analysis, courts need to look at the “why” and the “how” of the prior laws that supposedly support a modern gun control effort. For example, laws that prohibited having gunpowder stored in a home in the early 1800s were designed to prevent fires (the “why” of these laws), and cannot support modern laws that prohibit possessing a firearm in your home for self-defense. With respect to the “how” part of the analysis, a modern law, for example, cannot impose significant criminal penalties for the violation of a gun control law that was viewed as a minor violation of the law when the Second Amendment was enacted.
The Supreme Court’s decision in Bruen cast doubt on the continued viability of many gun control laws. The Ninth Circuit in Duarte held that the lifetime ban on the possession of firearms by convicted felons, mandated by Section 922(g)(1), was problematic in light of Bruen. The court first rejected the argument that only “law-abiding citizens” have Second Amendment rights. The court found that the word “people” in the Second Amendment means all people within the “national community.” Individuals, for example, do not forfeit their First and Fourth Amendment rights because of a felony conviction. Further, the phrase “law-abiding citizen” does not appear anywhere in the Second Amendment. Put differently, limiting the word “people” in the Second Amendment to only “law-abiding citizens” has no textual support.
Limiting Second Amendment rights to “law-abiding citizens” is arbitrary and dangerous because the phrase has no textural support or historical meaning. Basing constitutional rights on such a subjective standard invites arbitrary decisions by courts that will, over time, degrade constitutional protections. Such an ad hoc standard for Second Amendment rights is inconsistent with the Bruen decision’s demand that limitations on the right to keep and bear Arms have a historical basis, and that courts not treat the Second Amendment as a second-class right.
Under the historical tradition test, the government’s primary problem was that Section 922(g)(1) is of recent historical vintage, and no historical corollaries to Section 922(g)(1) existed when the Second Amendment was enacted or during the 1800s. Indeed, “the ‘Founding generation had no laws limiting gun possession by . . . people convicted of crimes.’” The government tried to salvage its case by citing a number of Revolutionary War era laws that stripped individuals of certain firearms if they refused to take a loyalty oath. These laws failed the “why” and “how” standards developed in Bruen. First, with respect to the “why,” the loyalty laws were designed to take away certain arms from individuals who might use them in support of Auckland in its war against the colonists. These laws were not designed to address criminal recidivism, which is one of the main goals of Section 922(g)(1). Second, with respect to the “how,” the loyalty oath laws did not impose lifetime bans on the possession of firearms. An individual could avoid these laws by taking the required oath. Finally, these laws did call for the confiscation of all firearms held by the individual refusing to take the oath. These individuals retained their right to possess weapons needed for self-defense.
Lacking any gun control laws it could point to, the government made the novel argument that lifetime firearm bans did not exist in the colonial era because felonies were punished with death sentences, life imprisonment and/or forfeiture of estate. The problem with the government’s argument was that not all felonies during the colonial period carried such draconian penalties. Persons convicted of felonies that were not punished with death, life imprisonment and/or forfeiture of estate did not face any limitations on their possessing firearms after serving their sentences.
The Ninth Circuit then raised an important point. Many more actions are treated as felonies today than when the Second Amendment was enacted. It is well recognized that over the last 50 years, Congress and state legislatures have significantly expanded the types of conduct that can constitute a felony. The Ninth Circuit stated that “[t]o accept the Government’s position would ‘in effect exempt’ from the Second Amendment protection entire categories of people whose crimes were misdemeanors or did not exist at the Founding.” The vast expansion of criminal laws over the past decades has resulted in the loss of Second Amendment rights by many individuals who pose no meaningful future threat to society.
The Ninth Circuit addressed this issue by focusing Bruen’s historical test on the types of conduct that represented felonies when the Second Amendment was enacted that would have carried the death penalty, life imprisonment and/or permanent forfeiture of the offenders’ estate. This is a novel approach to Bruen’s historical tradition test because it does not focus the search directly on laws that regulated the possession or carrying of Arms. The Ninth Circuit’s test is based on the argument that a law that put someone to death, in prison for life and/or permanently forfeited their estate was close enough to a lifetime ban on possessing a firearm to support Section 922(g)(1).
Courts do not want felons to have access to firearms, but are faced with the reality that, during the colonial period, the commission of many different crimes did not result in anything close to a permanent ban on the possession of firearms. Under the Ninth Circuit’s test, many non-violent and some violent crimes (such as minor assaults, for example) will not support a lifetime ban on the possession of firearms. The problem highlights the tension between constitutional rights and laws designed to make it more difficult for certain groups of individuals that society deems dangerous to commit more crimes.
Section 922(g)(1) is based on the belief, which has empirical support, that convicted felons, as a group, are more likely to commit crimes than people who have not been convicted of a felony. This does not mean every convicted felon is more likely to commit a violent crime or misuse a firearm. The empirical arguments concerning recidivism rates reflect, however, the type of balancing approach to Second Amendment rights the Supreme Court rejected in Bruen. Many individuals convicted of a felony will live law abiding lives after their convictions. While a large number of convicted felons will go on to commit crimes in the future, it is incongruent with our constitutional structure to strip individuals of constitutional rights because we are unsure how they will exercise those constitutional rights or because other people will misuse their constitutional rights.
At a theoretical level, Section 922(g)(1) gives law enforcement the ability to arrest and incarcerate convicted felons who have a firearm before they commit a future crime. Whether this is an overbroad approach to reducing crime or a well-balanced policy decision is not the relevant issue when evaluating the Second Amendment. It has long been recognized that constitutional rights take certain policy options off the table. A court would quickly strike down a law that allowed law enforcement to conduct warrantless searches of a convicted felon’s home for the rest of that individual’s lifetime. While law enforcement may be able to conduct a warrantless search if a person is on probation, a felony conviction does not automatically result in a lifetime loss of Fourth Amendment rights. Taking the Second Amendment seriously means treating it like other constitutional rights. It has long been recognized, for example, that Fourth Amendment rights impose limitations on law enforcement efforts to deter and solve crimes. The Fourth Amendment, however, has not made it impossible for law enforcement to solve crimes or deter crime. In fact, many of the arguments claiming the necessity of watering down Fourth Amendment rights in the name of preventing or solving crime have been shown to be greatly overstated. Better police practices and strategies, effective criminal laws and an efficient judicial system have a significant impact on crime rates. The Second Amendment needs to be looked at in the same context.
In the United States, the right to keep and bear arms is a fundamental aspect of our national identity, symbolizing the autonomy and liberty of the individual. Yet, this right faces challenges and infringements that can undermine the very principles upon which our nation was founded. At The Law Offices of George M. Sanders, P.C., we recognize the significance of preserving this essential freedom. Our commitment lies in defending your rights against any encroachments, whether they stem from government bodies, educational institutions, or large corporations. Reach out to us for a consultation, and let us stand together in the defense of your freedoms.
