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:
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.