Eleventh Circuit Not Open to As-Applied Challenges to the Felon Prohibitor

  • Date:
  • July 27, 2020

In a forthcoming article in Law & Contemporary Problems, I address some of the conceptual confusion generated by the lifetime prohibition on firearm possession by those previously convicted of a felony offense. The difficulty arises at least in part from complicated factors in the function and adjudication of the felon prohibitor, which the Eleventh Circuit’s recent short opinion in Flick v. Attorney General illustrates all too well.

First, take the issue of where the conviction arises. A conviction qualifies whether it occurs in state or federal court so long as the crime is “punishable by imprisonment for a term exceeding one year” or, if the state classifies the offense as a misdemeanor, if it is punishable by more than two years in prison. Foreign convictions, the Supreme Court has clarified, do not count. The jurisdiction in which the offense occurs can have huge consequences because a conviction no longer counts as disqualifying if it “has been expunged, or set aside” or “a person has been pardoned or has had [their] civil rights restored.” Some states restore civil rights easily (or automatically), and thus clear convictions that would otherwise prohibit firearm ownership; other states make it really hard. But federal convictions are different. There is no comparable mechanism—at least not a functioning one—to get one’s firearm rights restored after a federal felony conviction, short of a presidential pardon. (Though I haven’t looked into the details, this may mean that the President’s commutation of Roger Stone’s sentence, rather than granting a pardon, does nothing to relieve Stone's firearm prohibition.)

Second, consider the challenges to this lifetime bar. As I documented in a chart last year, the federal circuit courts are not in unison on how and whether a defendant can challenge the application of the federal bar to her circumstances. Some circuits have entirely foreclosed as-applied challenges. These courts conclude either that Heller allows government to constitutionally bar firearm possession for felons across the board (felons are out at step 1 of the two-part framework) or that these bans categorically pass some level of heightened scrutiny (the laws pass muster at step 2). Other circuits have held that, while the felon prohibitor is facially valid, there could be situations in which it would be unconstitutional as applied to a particular person. To date, the Third Circuit is the only circuit which has actually held the statute unconstitutional in a concrete situation, but a few others have suggested the possibility. Among many other issues it declined to take up, the Supreme Court last term denied a challenge to a D.C. Circuit opinion that all but closed the door on as-applied challenges. (The Court didn’t even hold this petition for NYSRPA as it did for all the other cert petitions squarely presenting Second Amendment issues that were filed after the grant in NYSRPA.)

That all brings us to Kenneth Flick. In 1987, Flick was convicted of two federal crimes: copyright infringement and smuggling goods into the U.S. Those offenses were punishable by up to five years in prison, but Flick was only sentenced to a few months in a halfway house, five years’ probation, and a pretty steep restitution order. The state of Georgia, where Flick resides, restored his civil rights, including his right to bear arms. But because Flick’s convictions are federal offenses, he still cannot possess firearms. He brought suit against the Attorney General, arguing that using his 33-year old convictions to keep him from possessing firearms violates his Second Amendment rights. But the Eleventh Circuit clarified that it is not open to as-applied challenges. With a Supreme Court that does not appear eager to take on the question of felon disarmament, the lower courts will be left to continue sorting out these issues for themselves.