On May 9, a divided panel of the Ninth Circuit Court of Appeals reversed a district court judgment and conviction for violating the federal felon-in-possession law and held the law unconstitutional in certain instances under Bruen’s historical test. The panel decision in United States v. Duarte is a major development in this area, as the Ninth Circuit joins the Third in holding that felon possession bans are unconstitutional in certain circumstances (for our coverage of the Third Circuit’s decision in Range, where a cert petition filed by the government is currently pending at the Supreme Court, see here). By contrast, the Eighth, Tenth, and Eleventh Circuits have each held that the statute remains constitutional in all applications. Duarte thus deepens the circuit split and greatly increases the odds that the Supreme Court will opine on this specific issue in the coming years, and the decision also starkly illustrates tricky questions presented by a “dangerousness”-based test in the felon-in-possession context.
The panel in Duarte consisted of three Republican-appointed judges: Judges Carlos Bea, Milan Smith, Jr., and Lawrence VanDyke. Judge Bea wrote the majority opinion, in which Judge VanDyke joined, and Judge Smith dissented. The threshold question in the case was whether the Ninth Circuit’s 2010 decision in United States v. Vonxgay upholding 922(g)(1) remained good law and was binding on the panel. The dissent said “yes,” while the two judges in the majority said “no.” The majority found that “Vongxay did not follow the textually and historically focused ‘mode of analysis’ that Bruen established and required courts now to apply to all Second Amendment challenges.” Judge Bea attacked Vonxgay’s reliance on pre-Heller case law and its failure to either perform a detailed textual analysis of “the people” who have Second Amendment protection or to closely consider potential historical analogues. He emphasized that “nothing in the majority opinion [in Bruen] implies that we can jettison Bruen’s test for one ‘presumptively lawful’ category of firearm regulations but not others.” Thus, the majority found it necessary to jettison Vonxgay and analyze the statute anew under Bruen.
The opinion first concluded that “Duarte is one of ‘the people’ because he is an American citizen,” relying on Heller and Founding-era dictionaries and in the process rejecting the government’s argument that there is a “‘distinction’ between those who are virtuous and those who are not” under the Second Amendment. The court then moved on to step two, noting that—because 922(g)(1) is targeted to gun violence generally, a societal problem that existed at the Founding—the federal government was required to show a “distinctly similar” historical tradition in terms of why laws were enacted and how they burdened the right to keep and bear arms. The government’s proposed historical analogues, the majority said, all fell short.
Unsuccessful proposals in state ratifying conventions to limit the Second Amendment’s protections to peaceable or non-rebellious citizens were inapt, the majority said, because there were not actually enacted and supported only “disarming a narrow segment of the populace who posed a risk of harm because their conduct was either violent or threatened future violence.” Laws targeting disfavored groups (including Loyalists, Catholics, Native Americans, and Blacks) restricted gun possession only by those “written out of the ‘the people’ altogether” in response to a perceived “threat of collective, armed resistance” during wartime and often did allow restricted individuals to recover their rights under certain circumstances. [1] Because 922(g)(1), by contrast, is a lifetime ban and motivated by public safety concerns on an individual basis, the majority found these laws to be insufficient. Finally, the majority emphasized that “the notion that all felons (violent and non-violent alike) were historically put to death or stripped of their estates is ‘shaky’” and that the category of felony-level crimes has expanded tremendously since the Founding. Therefore, the majority rejected the argument that, because felonies sometimes or often carried the death penalty, they necessarily resulted in the loss of gun rights. [2] The majority closed by observing that “§ 922(g)(1) may make a great deal of sense” as a matter of policy but that the government had failed to carry its burden of showing the law was consistent with historical tradition.
Judge Smith dissented and would have relied on Vonxgay to find the law constitutional as applied in the case. He wrote that Vonxgay’s reasoning was not “clearly irreconcilable” with Bruen and emphasized Bruen’s repeated use of “law-abiding citizens” and concurrences that limited Bruen’s holding and said the decision did not impact the constitutionality of felon bans. Stressing that, in his view, “[t]he scope of ‘the people’ is the same now under Bruen, as it was under Vongxay, as it was under Heller,” Judge Smith dissented and expressed his hope that the Ninth Circuit will re-hear the case en banc.
It’s interesting that neither the majority nor the dissent referenced the Supreme Court’s pending decision in Rahimi. [3] Perhaps the judges are confident the Supreme Court won’t provide direct guidance on the felon-possession issue in that case. This might be supported by an exchange between Solicitor General Elizabeth Prelogar and Justice Barrett at oral argument suggesting the government was aiming to “save [] the Range issue” and deal with felon possession bans “in a future case.” A cert petition in Range—where the en banc Third Circuit held the felon ban unconstitutional as-applied to a non-violent felon last June (read our summary here)—has now been fully briefed and pending for more than six months. That could indicate the justices intend to grant or deny the petition after Rahimi is decided, but it’s also possible the Court issues a broader decision in Rahimi impacting felon-in-possession challenges and then grants, vacates, and remands Range and other Second Amendment petitions it is holding for further proceedings consistent with that decision. In any event, Duarte’s heavy reliance on the decision in Range is somewhat unusual given the case’s uncertain status at the Supreme Court.
There are also important differences between Duarte and Range in terms of the underlying facts. No one believes that Range’s predicate felony conviction (fraud on a federal welfare application) is a serious indication of dangerousness. [4] But reasonable minds will likely differ about whether some of Duarte’s predicate felonies—specifically vandalism and evading a peace officer—demonstrate that he was dangerous, at least at the time those crimes were committed. Under California law, for example, the felony-level offense of evading a peace officer appears to require proof of “willful or wanton disregard for the safety of persons or property” during the act of attempting to flee from or elude a law enforcement officer. And it’s not clear, even under the Range approach, to what extent post-conviction conduct can ameliorate a felony (in terms of gun rights) when the conduct giving rise to the felony was in some way dangerous to others. These are likely issues the Supreme Court will have to address sooner rather than later, which means that Duarte’s shelf life—separate from a possible en banc rehearing—may be relatively short.
[1] Loyalists, for example, were forbidden from possessing arms during the Revolutionary War only so long as they refused to swear an oath.
[2] Duarte’s specific predicate convictions were also not clearly felonies at the Founding, according to the majority. Duarte had prior convictions for vandalism, drug possession, evading a peace officer, and possessing a firearm as a convicted felon.
[3] Indeed, Rahimi comes up only two times in the 74-page decision in Duarte: both citations to the Fifth Circuit’s decision issued last spring.
[4] While Range itself did not explicitly endorse a dangerousness/non-dangerous distinction in terms of past felony offenses, the government argued in favor of that framework for status-based exclusions not tied to criminal conduct in Rahimi and Justice Barrett has supported the approach for 922(g)(1).