Lange & The Implications for Second Amendment Challenges to the Felon Prohibitor

  • Date:
  • March 03, 2021

Earlier this week, the Supreme Court heard oral arguments in a Fourth Amendment case, Lange v. California. The case concerns the Fourth Amendment’s “hot pursuit” exception to the ordinary warrant requirement for entry into a home. One of the key questions that split the various parties in the case was how and whether the difference between misdemeanors and felonies should affect the rule. The state of California argued that warrantless entry into the home to follow a suspect should be permitted when an officer has probable cause to believe the person committed a felony, but not if the offense was only a misdemeanor. Other parties argued against a rule that turned on the classification of the offense under state law. The justices seemed concerned about this line-drawing exercise, with some urging the focus to turn to severity of the offense or potential dangerousness of the person, as Amy Howe writes at SCOTUSBlog. Federal courts of appeals across the country are engaging in similar debates over the historical justifications for prohibiting those convicted of certain crimes from possessing firearms, and thus whether the federal felon prohibitor in 18 U.S.C. § 922(g)(1) is consistent with the Second Amendment.

The justices views in the Lange oral argument signaled some discomfort with a rule that would depend on the line separating felonies from misdemeanors. Here are just a few examples:

  • Justice Breyer: “[T]he problem with trying to separate misdemeanor and -- and felony is that different states have different rules and different crimes that count as misdemeanors and some are pretty serious.”
  • Chief Justice Roberts: “The line between felonies and misdemeanors is -- is very hard to draw. In many cases, it’s counterintuitive, and it certainly varies from state to state.”
  • Justice Thomas: “[I]sn’t the definition of ‘felony’ today quite different and ‘misdemeanor’ today quite different from what it was at common law?”
  • Justice Sotomayor: “I’ve been listening to the exchange with my colleagues involving the difficulty in deciding what’s a felony and what’s a misdemeanor. Part of the problem is that what are felonies are no longer absolutely, necessarily, and in all situations dangerous crimes. You can have white-collar crimes where there is no danger. You can have all sorts of environmental crimes, other things that don't cause -- that don’t create exigency in the same sense that Santana was announcing the rule or that the common law came from. And so I don’t know why anybody is arguing that there’s a difference between felony and misdemeanors and why we’re recognizing a categorical rule at all.”
  • Justice Kagan: “[T]o continue with the difficulty of drawing lines between felonies and misdemeanors, Justice Sotomayor referred to this, but, you know, it – it’s true that it’s the basic line suggesting the severity of the fence -- the offense, but it’s really not the basic line as to whether an offense is violent or dangerous. I mean, sometimes it is, but a lot of times it’s not. And that -- the violence and dangerous aspect of -- of the conduct seems the more relevant one for purposes of deciding when an intrusion into the home is proper.”
  • Justice Gorsuch: “[D]ifferent states have different rules about what a felony is and what a misdemeanor is, and it would seem odd that the Constitution would – in its meaning, would depend upon the happenstance of positive state law. And . . . we live in a world in which everything has been criminalized. And some professors have even opined that there’s not an American alive who hasn’t committed a felony in some – under some state law.”

The terms of this debate are familiar to those who follow Second Amendment litigation over the bar on felon firearm possession. Of course, there are differences between these contexts. Unlike in the context of Lange, there is a uniform federal rule delineating what types of offenses qualify for the firearm prohibition. The “felon prohibitor,” in fact, does not use the term felony at all, but instead bars firearm possession for anyone “who has been convicted of a crime punishable by imprisonment for a term exceeding one year.” The statute further provides that that phrase does not include a state law offense classified as a misdemeanor so long as it is punishable by a term of two years or less. Some lower courts have found that labels are quite significant in deciding as-applied Second Amendment challenges. In Folajtar v. Attorney General, the Third Circuit focused on this distinction, using it to justify its “differing treatment of felonies and misdemeanors” for purposes of as-applied Second Amendment challenges to § 922(g)(1). That circuit has held that “serious” crimes are sufficient to constitutionally deprive someone of their Second Amendment rights, but non-serious ones are not—and the only time it has ruled for an as-applied challenger was in the context of qualifying offenses labeled misdemeanors under state law. Justice Barrett, on the other hand, argued as a circuit judge that the inquiry should focus on whether the offense shows the person likely to be a “danger” or not. As Justice Kagan’s Lange comments suggest, seriousness and danger may not always travel together, and as Justice Breyer suggested, how a state classifies offenses might say little about the culpability of the conduct.

Because the distinction matters in at least some Second Amendment cases, the justices’ reticence to attach much significance to differences in state-law offense labels in Lange may provide a window into how the Court would eventually handle an as-applied Second Amendment challenge to the felon prohibitor. As our tracker attests, there are several cert petitions raising these questions already geared up.