The Felon Ban Post-Rahimi and Supreme Court GVRs

In the wake of Rahimi, an interesting question has emerged at the trial court level about whether that decision and the Court’s subsequent act of sending cases back down for further review in light of Rahimi have substantive import in the felon possession context.

Prior to Rahimi, a circuit split had already solidified over whether Bruen’s text, history, and tradition test required courts to entertain some Second Amendment challenges to the federal felon gun ban—specifically, those brought by nonviolent felons or where the underlying felony offense did not clearly indicate dangerousness—or whether that law was constitutional under the Second Amendment in all applications.  In its en banc decision in Range (which we covered here), the Third Circuit took the first view: that some defendants with long-ago convictions for non-violent offenses can succeed on an as-applied challenge.  A Ninth Circuit panel subsequently agreed, and took perhaps an even broader approach, in a panel decision that was since vacated for re-hearing en banc.  On August 23, the Sixth Circuit adopted a similar view—rejecting an as-applied challenge by an individual with violent felony convictions but holding “that the dangerousness inquiry is workable for resolving as-applied challenges to § 922(g)(1)” and that “individuals must have a reasonable opportunity to prove that they don’t fit the class-wide generalization.”

On the other side, a number of circuits rejected such challenges across the board by relying on Heller’s endorsement of felon bans as “presumptively lawful” and pre-Bruen circuit precedent.  Courts upholding the law across the board with no need for case-by-case consideration include the Eighth, Tenth, and Eleventh Circuits (for a recent summary of appellate decisions post-Bruen, see this earlier post by Jake Charles).  Some circuits, such as the Fourth and Seventh Circuits, have yet to be squarely presented with this question but have upheld the law on its face or as applied to those convicted of violent felonies.  Others, like the Fifth, have heard argument in 922(g)(1) cases that are currently pending decision.

Rahimi itself says little about felon gun bans.  Both the majority opinion and Justice Kavanaugh’s concurrence reference Heller’s positive view of such laws.  The majority, while deciding the case on the basis that barring gun possession based on individualized findings of dangerousness is historically supported, also did “not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse.”  The majority rejected an approach under which all “irresponsible” citizens might be disarmed but declined to specify permissible principles in the context of categorical group prohibitions. 

After Rahimi, the Court sent a number of Second Amendment petitions it had been holding back to the lower courts by granting the petitions, vacating, and remanding (also known as a “GVR”).  The felon cases that were GVR’ed include Range, Vincent (the Tenth Circuit case rejecting as-applied challenges), and Jackson and Cunningham (two Eighth Circuit cases rejecting as-applied challenges).  As is typical, the Court provided no substantive guidance in its GVR orders.  Instead, those orders said only that the cases were remanded “for further consideration in light of United States v. Rahimi.”

An outstanding question is how district court judges should interpret the Supreme Court’s actions when faced with Second Amendment challenges to 922(g)(1) and whether they remain bound by pre-Rahimi circuit precedent that has now been GVR-ed.  In a mid-August decision in United States v. Forbis, a judge in the Northern District of Oklahoma decided that he was not bound to follow the Tenth Circuit’s earlier decision in Vincent rejecting as-applied challenges across the board.  Rather, the judge interpreted the GVR order in Vincent as indicating a “reasonable probability” that the decision rested on faulty premises.  He then determined that Vincent was in tension with Rahimi because the Tenth Circuit had relied on pre-Bruen precedent rather than conducting a historical inquiry, and he thus afforded Vincent “little weight” and ruled in favor of the defendant in the case.[1] 

Circuit courts vary somewhat in their interpretation of Supreme Court GVR orders, with some circuits appearing to view the orders as more suggestive of deficiencies in vacated decisions than others.  But there is general agreement that “a GVR order does not necessarily imply that the Supreme Court has in mind a different result in the case, nor does it suggest that [the] prior [circuit] decision was erroneous.”  Or, as the Fourth Circuit recently observed, “the issuance of a GVR does not speak to the underlying merits of the case and does not necessitate an automatic reversal.”  This means that, “[w]hen the Supreme Court vacates a judgment [] without addressing the merits of a particular holding in the panel opinion, that holding continues to have precedential weight.”  In other words, unless the Supreme Court specifically suggests that an aspect of the appellate decision was incorrect or has been overruled, that earlier decision remains good law until the circuit itself reverses course.

The situation in Forbis is somewhat unique, and relying heavily on a GVR here makes even less sense that it normally might.  That’s because the Supreme Court also GVR’ed Range at the same time as Vincent, and it’s not possible for both of those decisions to be wrong: either as-applied challenges to 922(g)(1) are unavailable across the board, or they are available in certain instances as the Third Circuit held in Range.  Reading the Court’s GVR of Vincent to cast doubt on the analysis in that case without even noting the Court’s contemporaneous GVR of Range seems to miss the forest for the trees.  And it’s also not clear to me that any positive benefits inure from district court judges independently interpreting Rahimi while a precedential circuit court opinion remains on the books; rather, that seems to invite inefficiency and, to some extent, invert the traditional roles of trial and appellate courts.  Rather, the best lower-court approach is to give no weight to the post-Rahimi GVRs, treat the orders in Range and the no-as-applied-challenge cases as essentially canceling each other out, and let the situation play out at the appellate level.  Doing otherwise requires imbuing the Supreme Court’s procedural orders with far more substantive meaning than they can rightly bear.