Court: Nonviolent felons may carry guns
A decades-old federal law banning convicted felons from possessing guns is unconstitutional, at least as applied to those convicted of nonviolent felonies, a federal appeals court ruled Thursday.
When the Second Amendment was added to the Constitution, “the right to keep and bear arms was every citizen’s fundamental right,” regardless of their past actions, the 9th U.S. Circuit Court of Appeals in San Francisco said in a 2-1 ruling.
Several other appeals courts have upheld the law, and the issue may be headed for the Supreme Court. That court is due to rule shortly, in another California case, on the constitutionality of state and federal laws banning firearms possession by domestic abusers — those found by a judge to have attacked or threatened a partner or close family member.
Thursday’s case started in 2020 when police in Inglewood (Los Angeles County) started to pull over a driver who had run a stop sign and allegedly saw a passenger, Steven Duarte, throw a handgun out of a window. Duarte had five previous felony convictions, one for illegal gun possession, but none involved violent acts, the court said.
A jury convicted him of violating the 1968 federal law that prohibits firearms possession by anyone who has been convicted of a crime punishable by more than a year in prison, a category that includes all felonies. The crime is punishable by up to 10 years in prison, or 15 years for those with records of violence, but Duarte was sentenced to 51 months in federal prison.
His appeal, like numerous current challenges to federal gun laws, relied on the Supreme Court’s June 2022 ruling in the Bruen case. In a 6-3 decision striking down a New York law that prohibited carrying guns outside the home unless an individual could show a special need for self-defense, Justice Clarence Thomas said any restriction on possessing firearms is unconstitutional unless the government can show it is “consistent with this nation’s historical tradition of firearms regulation,” dating to the nation’s founding.
U.S. Justice Department lawyers argued that the ban on gun possession by convicted felons was supported by the Supreme Court’s 2008 ruling that first declared a constitutional right to possess firearms for self-defense at home. In that 5-4 decision, Justice Antonin Scalia said the court did not intend to cast doubt on “longstanding” laws prohibiting “the possession of firearms by felons and the mentally ill.”
But the appeals court said the federal law was not sufficiently “longstanding” because it did not exist in the 18th and 19th centuries, when U.S. citizens generally had the right to possess firearms. The only groups who were substantially disarmed at the time were British loyalists, American Indians, slaves and freed Blacks, Judge Carlos Bea said in the majority opinion. And other gun laws from early U.S. history, he said, were aimed at those who were considered dangerous. “We do not base our decision on the notion that felons should not be prohibited from possessing firearms,” said Bea, joined by Judge Lawrence VanDyke. “As a matter of policy, (the ban on gun ownership by convicted felons) may make a great deal of sense.”
But the Second Amendment “takes out of (our) hands … the power to decide” for which Americans “that right is really worth insisting upon,” Bea wrote, quoting the Supreme Court. “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.”
In dissent, Judge Milan Smith said the Supreme Court’s Bruen decision had reaffirmed that “the Second Amendment right belongs only to law-abiding citizens.” He quoted Justice Samuel Alito’s comment, in a concurring opinion in the 2022 case, that the court was deciding only that “the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense.”
Smith urged the full appeals court to set the ruling aside and order a new hearing before an 11judge panel. The court has already ordered such a hearing in a challenge to a California law banning possession of guns with magazines holding more than 10 cartridges.
The ruling was welcomed by Chuck Michel, president and general counsel of the California Rifle & Pistol Association, the state’s National Rifle Association affiliate.
“A nonviolent felon who has served his time should regain the fundamental right to keep and bear arms,” Michel said. “The standard for Second Amendment disarmament should be an individualized finding of dangerousness. Any other approach invites the government to arbitrarily disarm politically disfavored classes.”
But Stanford Law professor John Donohue said it was “a sad day for rational judicial decisionmaking.”
“Telling convicted felons that they are free to carry weapons now — indeed have a constitutional right to do so — is a terrible idea that will elevate crime,” Donohue said by email. He said he hopes the Supreme Court’s upcoming decision on gun possession by domestic abusers will “correct the grotesque problems with Bruen.”
Adam Winkler, a UCLA law professor, said the ruling shows the “absurdity” of basing constitutional standards on gun laws that existed two or three centuries ago.
“We didn’t have background checks in the 1700s and 1800s, or bans on felons or domestic abusers” owning guns, Winkler said. To prohibit such laws today “simply because we didn’t have the foresight in 1791 to adopt such a law seems incredibly silly.”