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Ninth Circuit:
All Ex-Felons Can’t Be Denied Right to Possess Firearms
Majority Says Federal Statute Cannot Constitutionally Be Applied to California Man Who Has Been Convicted of Five Non-Violent Felonies; Dissenter Says Recent U.S. Supreme Court Decision Doesn’t Require That Result
By a MetNews Staff Writer
Ex-felons are “people” and the Second Amendment—which establishes “the right of the people to keep and bear Arms”—applies to them, and presumptively bars application of a federal statute prohibiting their possession of firearms and ammunition, the Ninth U.S. Circuit Court of Appeals held yesterday, in a 2-1 decision.
Senior Circuit Judge Carlos T. Bea authored the majority opinion in which Judge Lawrence VanDyke joined. Judge Milan D. Smith Jr. dissented, disputing the majority conclusion that the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen dictates the result.
Smith expressed “the hope that our court will rehear this case en banc to correct the majority’s misapplication of Bruen.”
The majority reversed the conviction of Steven “Shorty” Duarte for violating 18 U.S.C. § 922(g)(1) which renders it a crime for anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to “possess…any firearm or ammunition.” That statute cannot constitutionally be applied to the appellant, who had been convicted of five felonies in California, the majority concluded, noting that Duarte is “a non-violent offender who has served his time in prison and reentered society.”
The opinion does not preclude application of the statute to all persons convicted of non-violent felonies, but places the burden on the prosecution to establish a particularized need to deny access to firearms.
High Court Decision
In Bruen, Justice Clarence Thomas wrote for the majority in striking down New York’s gun permit law. He noted that it has been recognized that “the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense” as well as “outside the home.”
He declared:
“Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.”
Thomas noted that it was decided in the Supreme Court 2008 opinion in District of Columbia v. Heller that the Second Amendment is not applicable solely to types of weapons that existed when the Bill of Rights was adopted but also applies to those in common use at any given time.
He spelled out:
“[N]o party disputes that handguns are weapons ‘in common use’ today for self-defense….The Court has little difficulty concluding also that the plain text of the Second Amendment protects [the petitioners’] proposed course of conduct-carrying handguns publicly for self-defense….
“The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.”
Bea’s Opinion
Bea said in yesterday’s opinion:
“Here, as in Bruen, it is undisputed that the Second Amendment protects the arm in this case (a handgun) and the conduct involved (simple possession)…. All that is left for us to decide is the first textual element: whether Duarte is among ‘the people’ to whom the Second Amendment right belongs.
He wrote:
“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.”
The jurist pointed out that the court in Heller said that “the people” includes “all Americans” because they are part of the “national community” and it was observed in Bruen that “[t]he Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.” He added:
“Our own analysis of the Second Amendment’s text and history also confirms that the original public meaning of “the people” in the Second Amendment included, at a minimum, all American citizens. We therefore reject the Government’s position that ‘the people,’ as used in the Second Amendment, refers to a narrower, ‘unspecified subset’ of virtuous citizens.”
Historical Regulations
Going back to colonial days and to the early times in the states, Bea noted there were laws “that disarmed British Loyalists, Catholics, Indians, and Blacks.” He explained:
“[T]he burden on the Second Amendment right under these laws did not persist for life for these groups. It was subject to certain need-based or case-specific exemptions or could end altogether when evidence undermined the justification for the disability. That stands in stark contrast to § 922(g)(1)’s lifelong, no-exception, categorical ban. The Government’s proffered analogues are thus not ‘distinctly similar’ to § 922(g)(1) in both ‘how and why’ these laws burdened the Second Amendment right.”
Appellant Steven Duarte had been convicted in California of five felonies, Bea recited. One of the offenses—vandalism—“likely would have made him a misdemeanant at the Founding,” he said, continuing:
“Duarte’s second predicate offense—felon in possession of a firearm…was a nonexistent crime in this country until the passage of the Federal Firearms Act of 1938.… As for Duarte’s remaining convictions—drug possession and evading a peace officer—we do not know whether either crime traces back to an analogous, Founding-era predecessor because the Government failed to proffer that evidence. Based on this record, 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.”
2010 Decision
The Government relied on the Ninth Circuit’s 2010 decision in United States v. Vongxay which validates the ban on firearms possession by ex-felons. Bea commented:
“Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history.”
The irreconcilability provides an exception to the rule that a three-judge panel may not disregard a Ninth Circuit precedential decision, Bea said.
Smith’s Dissent
“Whether felons have a Second Amendment right to bear arms is settled in our circuit.,” Smith said in his dissent.
“They do not,” he wrote, citing Vongxay.
“Until an intervening higher authority that is clearly irreconcilable with Vongxay is handed down, we, as a three-judge panel, are bound by that decision,” he contended.
The judge noted that the Supreme Court in Bruen, “did not overrule Vongxay,” pointing out:
“Instead, Bruen reiterates that the Second Amendment right belongs only to law-abiding citizens. Duarte’s Second Amendment challenge to 18 U.S.C. § 922(g)(1), as applied to nonviolent offenders, is therefore foreclosed.”
Smith went on to say:
“Bruen did nothing to upend our decision in Vongxay. Bruen was a Second Amendment challenge to New York’s gun licensing regime, not the felon-in- possession statute at issue in Vongxay: Bruen repeatedly emphasized that it only extended the Second Amendment right to ‘law-abiding citizens,’ a phrase it used, as noted, no fewer than fourteen times: and three Justices in the Bruen majority reiterated, unequivocally, that a prohibition on the possession of firearms by felons is presumptively lawful. The two decisions are harmonious.”
He added:
“One day—likely sooner, rather than later—the Supreme Court will address the constitutionality of § 922(g)(1) or otherwise provide clearer guidance on whether felons are protected by the Second Amendment. But it is not our role as circuit judges to anticipate how the Supreme Court will decide future cases.”
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