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Dishonorable Discharges and Gun Possession Post-Bruen

By on November 15, 2023 Categories: , ,

Much of post-Bruen Second Amendment litigation has focused on the federal status-based prohibitions contained in 18 U.S.C. § 922.  Jake Charles, for example, has found that more than 40% of federal court Second Amendment challenges in the one year following the Bruen decision were to the federal felon-in-possession law, 922(g)(1), and that more than 60% of federal court cases related to one of Section 922’s status-based disqualifications.[1]  While these challenges have mostly been unsuccessful, in some major decisions courts have struck down federal status-based prohibitions under Bruen that were widely held to be constitutional under the prior legal test. 

The Supreme Court recently heard oral argument in Rahimi, which deals with the DVRO ban in 922(g)(8), and challenges to 922(g)(1) (the felon possession ban), 922(g)(3) (the unlawful drug user ban), and 922(n) (the felony indictment receipt ban) may follow soon on the Court’s docket.  However, I am not aware of a post-Bruen case examining the constitutionality of 922(g)(6)—which prohibits any individual “who has been discharged from the Armed Forces under dishonorable conditions” from possessing a gun.[2]  This post will briefly survey the (scant) pre-Bruen case law on this provision and offer some thoughts about the application of Bruen’s historical test in this context.

Prior to Bruen, in a 2018 decision, a unanimous panel of the Second Circuit Court of Appeals applied intermediate scrutiny and upheld the law (after assuming, without deciding, that dishonorable discharged veterans are within “the people” the Second Amendment protects).  Jimenez involved an individual who had been dishonorably discharged from the Marines after a court-martial conviction and military prison sentence for conspiring to sell firearms and other military equipment in the civilian market and using controlled substances.  The government appears to have argued in that case that, because Jimenez was convicted of and ultimately discharged for committing a felony-equivalent offense in military court, he could be disarmed for the same reasons that felons may be disarmed generally.  The panel agreed, noting that the dishonorable-discharge ban was included in the Gun Control Act along with the felon-in-possession law and that “[d]ishonorable discharges are generally reserved for members of the military who have been convicted [by court-martial] of offenses usually recognized in civilian jurisdictions as felonies, or of offenses of a military nature requiring severe punishment.”  The court also observed that those who “receive extensive training on how to use deadly weapons [as part of military service] are likely to be more dangerous with firearms should they be thoughtless or heartless enough to turn them onto civilians” and held that the different procedural context of a military court martial[3] did not prevent such convictions from serving as the basis for future disarmament.

It’s worth noting that Jimenez was a facial challenge, which the district court emphasized in upholding the law:

[Jimenez] asserts that a “dishonorable discharge is categorically different from a conviction for a felony” because a person can be dishonorably discharged for offenses such as insubordinate conduct, malingering, adultery, bigamy, making disloyal statements, being absent without leave, disobeying a superior officer, wrongful cohabitation and improper fraternization. These arguments do not save Defendant’s motion, as Defendant’s own circumstances illustrate a constitutional application of § 922(g)(6) and therefore undermine his facial challenge. The argument concerning the application of the statute to others discharged for lesser offenses is precisely the type of argument that can succeed only in as-applied challenges, and not in facial ones.

Thus, Jimenez stands only for the proposition that the law was facially valid under the Second Amendment applying the old two-part test; the Second Circuit panel did not suggest any view on whether a court martial and dishonorable discharge for disobeying a superior officer, for example, would similarly be a constitutional basis for lifetime disarmament.[4]

The Jimenez panel specifically invoked Lee Harvey Oswald, who served in the Marines, was trained as a sniper, was discharged after multiple court martials, and later assassinated President John F. Kennedy with a sniper rifle.  Congressional testimony preceding the Gun Control Act of 1968 also focused heavily on Oswald, as well as Sirhan Sirhan (who assassinated Senator Robert F. Kennedy), and James Earl Ray (who assassinated Martin Luther King, Jr.).  Notably, of the three, only Ray had a prior criminal conviction in a civilian court at the time of the assassination.  Alabama representative James Buchanan noted that Oswald and Sirhan were nevertheless “not typical, lawabiding citizens . . . [but] outsiders and malcontents who reviled and even hated the country in which they lived”—and evidence of Congressional intent to cast the net beyond criminal convictions is quite strong.  Senator George Murphy observed that “Oswald’s record shows he was discharged from the Marine Corps under highly questionable circumstances, which clearly sets him apart from that great body of fine, and I think representative, young Americans.”  It’s unclear whether Oswald’s initial hardship discharge (shortly after two separate court-martial proceedings, one for possessing an unregistered private firearm and one for using “provoking words” to a superior officer) would have been sufficient on its own to disqualify him from possessing a firearm under 922(g)(6),  had the GCA been in effect at the time.  The Jimenez panel noted in dicta that even less serious “dismissal” or “bad conduct” separations from the armed forces likely implicate 922(g)(6) but did not mention hardship specifically.  Oswald’s discharge, however, was later changed to “undesirable” when Oswald renounced his American citizenship after defecting to the Soviet Union in 1959—renouncing citizenship would have independently disqualified Oswald from possessing a gun under 922(g)(7).  In any event, it’s easy today to lose sight of the fact that Congress was driven by a discrete group of tragic events in enacting the GCA and that dangerous behavior short of a felony conviction was thus a major consideration.

While dishonorable discharges are relatively rare, consistently accounting for merely 0.1% of total military discharges since the Vietnam War era according to one study, 922(g)(6) remains something of a live issue.[5]  For example, Bowe Bergdahl was initially given a dishonorable discharge for deserting his base in Afghanistan and surrendering to Taliban forces in 2009 before ultimately being returned in a prisoner exchange in 2014.  That determination was recently vacated by a federal court due to apparent improprieties in the underlying court-martial proceedings.  If Bergdahl’s discharge status is ultimately reinstated, he would be barred under 922(g)(6) from possessing a firearm (and potentially for that reason alone, as he does not appear to have any other disqualifying status).  Interesting legal questions also remain.  For one, Jimenez was surprisingly reticent to proclaim the provision constitutional in all applications and seemed to leave open serious questions about the application of 922(g)(6)’s ban to someone dishonorably discharged for a non-felony-equivalent offense[6] (even under the old two-part test).  Second, Bruen changes things drastically and likely makes any effort to rely solely on felon disarmament—as the government did in Jimenez—much more of an uphill battle.  Courts are increasingly reluctant to find that the felon ban itself is constitutional in all applications, despite Heller’s endorsement, and post-Bruen decisions generally reject efforts to analogize other status-based bans to the felon prohibitor.

How might 922(g)(6) fare under Bruen’s test?  As with most aspects of federal gun regulation, the modern military discharge system is itself a relatively recent innovation.  The Servicemen’s Readjustment Act of 1944 (commonly known as the “G.I. Bill”) established the current system of tiered discharged statuses—including dishonorable discharge—and specified which benefits veterans were eligible for based in part on discharge status.  But, as scholars have observed, “[t]he basic framework for the American military’s separation of servicemembers and characterization of their service dates back to the founding era.”  Richard Bednar notes that “[p]unitive separation was recognized as a form of punishment for officers as early as the American Articles of War of 1775.”  And soldiers who were dishonorably discharged under the Founding Era framework generally had been court-martialed and “lost certain military benefits such as travel pay and retained pay” as a result.  There was likely not any systematic disarmament of those punitively separated from the military during the Founding Era, although there certainly was a Founding Era tradition of disarming those “disaffected to the cause of America”—including those who refused to take loyalty oaths during the Revolutionary War. 

At least one amicus brief in Rahimi addressed 922(g)(6) in passing, arguing that, “to the extent that law [(g)(6)] authorizes disarmament without any finding of present dangerousness, it is no more justified by the historical evidence compiled in this case than Section 922(g)(8) itself.”  I believe that framing is probably the wrong way to approach the question.  As Representative Buchanan said during the GCA debates, part of the objective was to ensure that “outsiders and malcontents who reviled and even hated the country in which they lived”—such as Oswald, and perhaps Sirhan and Ray—did not have access to firearms.  That wasn’t a novel idea; indeed, Buchanan could just as well have been describing a 1777 Loyalist as a 1959 Soviet defector.  It’s not immediately clear to me how a Second Amendment challenge to (g)(6) would play out today and there are issues with relying on historical laws we would never embrace in the modern era, at least not without significant revisions.  But I think the correct historical framing for 922(g)(6) is one focused on loyalty and civic responsibility, not dangerousness. 

[1] Which, for purposes of this post, include all prohibitions in 922(g) and the federal ban on receiving new firearms while under felony indictment in 922(n).

[2] The same is true, to my knowledge, of 922(g)(2) (covering fugitives from justice) and 922(g)(7) (covering those who have renounced their American citizenship).

[3] As the Supreme Court explained in a 2018 decision, the military justice “system begins with the court-martial itself, an officer-led tribunal convened to determine guilt or innocence and levy appropriate punishment,” and the outcome of that proceeding can be appealed in a military appellate system culminating at the United States Court of Appeals for the Armed Forces.  Only a conviction in a general court-martial of certain especially serious offenses would automatically result in a dishonorable discharge.

[4] A dishonorably discharged individual may also lose the right to vote, at least in certain states.

[5] There is a tragic link between military service and subsequent mental health problems, and former, active duty, or reserve military personnel (although not necessarily with dishonorable or even less than honorable discharges) have committed a number of high-profile shootings.  In addition to Oswald, the 1966 University of Texas shooter was a Marine veteran, in 2009 an Army psychiatrist murdered 13 people at Fort Hood in Texas, and the suspected Lewiston, Maine shooter is an Army reservist.

[6] In addition to criminalizing offenses that are also felonies in the civilian world, the Uniform Code of Military Justice includes “military misconduct offenses that have a referent offense in medieval chivalric codes or Roman military practices (e.g., mutiny, desertion, cowardice).”