Thoughts on Greer v. United States
In its June 14 decision in Greer v. United States, the Supreme Court addressed the mens rea requirement for the federal felon-in-possession law at 18 U.S.C. § 922(g)(1) (also called the “felon prohibitor”). (The Court consolidated the Greer case with a similar case, Gary v. United States, on appeal from another Circuit). This opinion was a natural follow-up to the Court’s 2019 decision in United States v. Rehaif, where the Court clarified for the first time that convictions under any section of § 922(g) require that the prosecution prove the defendant was aware of his or her status that implicates one of the nine statutory prohibitions. In Rehaif, that meant the defendant (an immigrant) needed to know that his expired student visa meant he was unlawfully in the country in order to “knowingly violate” the statute; in Greer/Gary, this meant the defendant needed to have knowledge that he was a convicted felon. The case was about a gun control statute (I will argue below our primary gun control law), but the case was not a Second Amendment challenge to the statute. Somewhat surprisingly, the decision was nearly unanimous, with 8½ Justices agreeing on the outcome (Justice Sotomayor concurred in part and dissented in part). Justice Kavanaugh wrote the majority opinion.
A quick note of clarification: the mens rea requirement for § 922(g), according to these decisions, is that the prosecution would have to prove as elements of the offense that the defendant 1) knew he possessed a firearm or ammunition, and 2) knew he was a felon, or an immigrant in the country unlawfully, or dishonorably discharged from the military, or a current user of illegal narcotics, etc. It does not require knowledge of the firearm prohibition itself – the Court does not require proof that the defendant knew his felon status would bar him from owning a gun. Knowledge of the underlying or predicate status is required, but not knowledge of the firearm law itself.
Greer and Gary were both convicted and sentenced of being felons in possession before the Rehaif decision came out, and at that time many courts were not requiring proof that the defendant knew he was a felon, or admission of this on the record from the defendant in a plea colloquy, so both of them were seeking reversals so they could either have a new trial or renegotiate their plea deal. The question the Court answered was therefore a technical point of appellate criminal procedure: whether this was “plain error” review rather than “harmless error” review, and if the former, whether the defendant showed (or needed to show) that he would have presented evidence at trial to show he did not know he was a felon. The Court held that “plain error” appeals under Rehaif require showing that the defendant would have put on evidence at trial to show they were unaware of their relevant status, such as being a convicted felon. Neither Greer nor Gary had done that, so their convictions stand.
The Court also mentions in passing several times that most felons know they are felons – proving this is usually a mere formality for prosecutors. Justice Sotomayor’s partial dissent sets forth a few relatively commonplace scenarios where someone might misunderstand their status, such as juvenile offenders or those who plead guilty to a felony but serve little or no jail time, being sentenced instead to probation. Most of her dissent, however, emphasizes that the rules are different for appeals of “harmless error” (more favorable to defendants).
The technical procedural question before the Court helps explain the consensus among Justices who normally would disagree about Second Amendment rights and gun control laws. The decision is consistent with other recent decisions about “plain error review,” requiring a defendant show on appeal “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Note that this is a significant obstacle for defendants, and it means even when there was a plain error at trial, in most cases the conviction will be upheld. This is also consistent with several other types of appellate review for errors at criminal trials, such as ineffective assistance of counsel claims or claims the prosecutor hid evidence that might exonerate the defendant. In these cases, the defendant also must show (with varying amounts of evidence) that the outcome of the trial would have been different but for the prosecutorial misconduct or incompetence by defense counsel. In that sense, the holding in Greer is not surprising at all.
As mentioned above, the opinion does not mention the Second Amendment (nor did the lower court opinions in the cases), it appears that none of the advocacy groups for gun rights (NRA, GOA, SAF, NSSF, or FPC) filed amicus briefs, and the decision seemed to escape notice on the popular gun rights blogs. Justice Kavanaugh, who authored some of the circuit court opinions in Heller II, wrote for the majority. So in one sense, this was not a big decision in the field of gun rights or firearm policy. The “new” requirements imposed on prosecutors in Rehaif and Greer for bringing charges under § 922(g) amount to little more than a technicality, and Greer torpedoes nearly all of the post-Rehaif appeals from defendants sentenced before that case was decided. From a practical standpoint, Rehaif and Greer changed very little for prosecutors or defendants in these cases.
On the other hand, there are several reasons that Greer matters a lot. The statute itself has been the target of numerous Second Amendment challenges, in several of which the Court has denied certiorari (including a few this term), leaving in place circuit court decisions upholding the statute. The felon prohibitor is, at least in terms of legal challenges and cert petitions, a “hot” issue in the Second Amendment arena. Justice Barrett, while on the Seventh Circuit, wrote a much-discussed dissent arguing that the statute is unconstitutional as applied to non-violent felonies, and other conservative Justices have expressed in dissenting and concurring opinions in recent years the desire to address more Second Amendment issues. Even though the petitioners in the case had not brought Second Amendment claims before the Court, it was surprising that none of the Justices (especially Justice Barrett) would write a dissent or concurrence in this case arguing that the prosecutors should also have to prove the present dangerousness of the felon or that the prior conviction was a for a violent felony. In theory, the Court could have requested briefing on the issue and included a Second Amendment section in the opinion, narrowing the statute by requiring prosecutors to prove the defendant poses a danger. Greer could have been a Second Amendment case, and though it’s risky to argue from silence, the Court’s repeated denials of cert in the challenges to the statute, combined with seemingly sidestepping the issue in this opinion, could be a signal about the Justices’ views about the outer bounds of the Second Amendment.
A number of commentators have written about the issues with the statute: Jake Charles has an excellent article exploring whether the Second Amendment excludes felons from its coverage, or if it covers felons but merely permits some restrictions on their rights. Other commentators have argued that permanently dispossessing felons of firearms lacks historical (Founding Era) pedigree (see here and here). Benjamin Levin has discussed how the felon prohibitor rule is a major contributor to mass incarceration, disproportionately punishes minorities, and gives police and prosecutors too much discretion and power.
Levin’s concerns are well-founded, but as he acknowledges, the law might be necessary or beneficial despite these problems. In practice, § 922(g) is the centerpiece of firearm regulation in this country. The gun purchaser background check system (NICS) is built around § 922(g). Arguably, § 922(g) is one of the two main functions of the gun dealer licensing system (violating § 922(g) by selling to prohibited purchasers is the most common basis for license revocations). With a longstanding political gridlock preventing the passage of new gun laws, § 922(g) may be all we have for the foreseeable future – if we want to limit gun violence by limiting who can get a gun, § 922(g) is, in practice, the only way we do it. It may be the only type of modest gun regulation that garners bipartisan support.
The conservative Justices seem to agree (with the possible exception of Barrett, but after Greer even that is in doubt). As Justice Alito stated in his dissent in Rehaif:
And § 922(g) is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.” (Rehaif at 2201).
Most of Justice Alito’s dissent in Rehaif was about the prospect of appeals like the one in Greer, and the Greer decision addressed most of the concerns he expressed about Rehaif. Contrast this with his dissent in NYSRPA v. City of New York, where his absolutism about the Second Amendment might have led readers to think he would be more sympathetic to challenges to the felon prohibitor.
Indirectly, the felon prohibitor rule helps reduce the flow of guns into vulnerable communities – impoverished neighborhoods with elevated rates of gun violence. (Most of our nation’s gun violence is concentrated in urban areas). While the felons themselves may not pose a danger or engage in gun crimes, any guns they have become more easily accessible to neighborhood thieves, borrowing by roommates and nearby relatives, and so on. Some published social science research about gun violence has found that most guns used in crime are borrowed/shared (sometimes stolen), which means geographic proximity of the guns matters. The supply of guns flowing into vulnerable communities can impact rates of gun violence, even if the guns are brought there initially by owners who do not perpetrate the crimes. (RAND Corp has a meta-survey of the literature about the correlation between gun prevalence and gun violence – including some of the contradictory studies).
The Second Amendment challenges to the felon prohibitor argue that released felons need guns for self-defense, but it is not clear that incidents of legitimate (lawful) defensive gun use by felons matches the number of guns borrowed or stolen from felons, and sometimes used by felons in committing new crimes. I am not sure it matters whether the felon’s conviction was for violent crime, drug possession (a large proportion of felonies), or a clearly nonviolent crime like fraud, embezzlement, or insider trading, from the standpoint of bringing more guns into vulnerable communities. And if a nonviolent felon returns to the same type of nonviolent crimes – say, fraud – and they keep a gun for self-defense against their victims (who may seek revenge or repayment by force) – then we’ve set the stage for more foreseeable gun violence. That said, I agree with other commentators that the sentences for § 922(g) seem unreasonably long, and significantly contribute to the mass incarceration problem. Gun forfeiture with supervised release (including periodic inspections for guns) would seem to achieve the same social goals. It is also worth mentioning that there is a federal statutory framework for felons to petition, after a period of some years, to have their gun rights legally restored, but for many years Congress has blocked the ATF from using any funds for this on the federal level. Some states have functioning, streamlined processes for restoration of gun rights after a state felony. This seems like a simple fix for Congress to make – the statutory and adjudicative framework is already in place for a restoration of gun rights by those who can demonstrate they no longer pose a danger to society.