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Litigation Highlight: Tennessee Judge Upholds Federal Felony-Indictment Ban and Notes Outstanding Post-Bruen Questions

On November 16, Judge Aleta Trauger of the Middle District of Tennessee issued a decision rejecting a Second Amendment challenge to 18 U.S.C. § 922(n), which prohibits receipt of a firearm while under felony indictment. 

Judge Trauger first summarized Bruen and its doctrinal framework.  She observed that:

The modern world is different from the world of the founding, not just in the facts of everyday life but also in the basic norms and assumptions that underlie policymaking. Moreover, the available evidence of founding-era attitudes is, at best, an incomplete snapshot of the constitutional expectations of the era. The court’s investigation, therefore, cannot be so simple as just comparing the modern law under review with the laws of a couple of centuries ago, like a redline comparison in a word processing application.

Judge Trauger also wrote that “a list of the laws that happened to exist in the founding era is, as a matter of basic logic, not the same thing as an exhaustive account of what laws would have been theoretically believed to be permissible by an individual sharing the original public understanding of the Constitution.”  This is because, in the judge’s view, “[n]o reasonable person would, for example, think that the legislatures of today have adopted every single hypothetical law capable of comporting with our understanding of the Constitution, such that any law that has not yet been passed simply must be unconstitutional.”  Thus, she interprets Bruen to require more nuanced consideration of not just “what earlier legislatures did, but . . . what they could have imagined.”

Turning to the initial “plain text” inquiry, the judge determined that “[e]ach of th[e] activities [regulated by 922(n)] involves exercising physical control over a firearm,” conduct within the plain text of the Second Amendment.  Next, Judge Trauger considered whether 922(n) is consistent with historical tradition.  The judge observed that neither party had submitted comprehensive historical analysis or expert testimony, which made it necessary to decide the case “based on the arguments of non-historian lawyers, citing cases by non-historian judges, who relied on arguments by other non-historian lawyers, and so on in a sort of spiral of ‘law office history.’”  While she noted the possibility of court-appointed expert historians playing a role in Second Amendment cases, Judge Trauger “doubts that [such a system] can be scaled to the level that would be required by the federal courts’ massive docket of gun prosecutions.”

Judge Trauger briefly addressed the decision in Perez-Gallan, which we summarized here and which struck down the federal ban on possessing a firearm while subject to a domestic-violence restraining order.  She asked whether the absence of similar historical prohibitions “actually reflect[s] historical attitudes regarding firearm regulation, or is [] instead a feature of historical attitudes regarding the role of the state in policing violence between intimate partners?”  One outstanding question, in Judge Trauger’s view, is whether “legislators [are] free to pass laws that reflect changes in attitudes other than those involving the right to bear arms.”  She noted that similar issues exist with regard to felony-based restrictions, and highlighted the risk of “attempting to reconstruct past constitutional understandings through a litigation-driven process of keyword searches” when fundamental underlying beliefs may have been different at an earlier time.  

Judge Trauger ultimately found that 922(n) is supported by a “common law tradition of gun regulation [which] permitted the disarming of certain classes of individuals based on questions regarding whether those individuals had been ‘peaceable’ and/or ‘law-abiding.’”  She noted several additional factors that she found supported the government’s position: (1) Bruen’s general endorsement of objective disqualification criteria, (2) the temporary nature of 922(n)’s removal of firearm rights, and (3) “a constitutionally meaningful government interest in safeguarding [criminal] proceedings that is sufficient to justify at least some temporary curtailments of even the most important individual rights.”  The opinion asserts that Bruen should not be read to prohibit “supplemental common sense reasoning”—such as judicial consideration of the duration of a restriction—and that “depriving judges of the ordinary tools of reasoning that they have employed throughout the common law tradition would itself seemingly violate the text and original meaning of the Constitution.”

The judge noted the Western District of Texas decision in United States v. Quiroz (which Jake summarized here, and which struck down the same federal provision at issue in Kelly).  While she reached the opposite result and upheld the regulation, Judge Trauger “s[aw] no glaring flaws in that court’s analysis—just different judgment calls on reasonably contestable, highly abstract questions of historical analogy.”

One important point to highlight here is Judge Trauger’s observation that “a list of the laws that happened to exist in the founding era is, as a matter of basic logic, not the same thing as an exhaustive account of what laws would have been theoretically believed to be permissible by an individual sharing the original public understanding of the Constitution.”  Nelson Lund has similarly observed that “[t]he absence of a regulation does not necessarily imply the absence of a power to adopt that regulation.”  One aspect of Bruen that has caused confusion and consternation in the lower courts is that the decision appears to assume, in certain places, that historical state legislatures always regulated to the maximum extent permitted by the Constitution (otherwise, why would the existence of the same societal problem, accompanied by a lack of historical regulation, be determinative of constitutional meaning?)  But that’s almost certainly not true.  There could be any number of non-constitutional reasons why a legislature chose not to regulate in a certain way, and it will often be the case that historical legislation did not even approach the outer bounds of what the legislators believed they were permitted to enact under the relevant constitutional provision.

A corollary of this point is that “mere non-regulation” also should not be viewed as an affirmative sign that certain conduct was constitutionally protected.  For example, Aaron Tang observes in a forthcoming Stanford Law Review article regarding the Dobbs decision that:

It cannot be the case that the mere non-regulation of some act by state legislatures in 1791 or 1868 automatically raises that act to the status of a fundamental liberty interest. It that were true, surprising constitutional rights would be everywhere around us: we’d have constitutional rights to drink through straws, jump rope, and write in cursive, all because no lawmaker banned any of those acts two centuries ago. There are, in short, lots of things that lawmakers haven’t criminally prohibited, not because they are fundamental rights but rather for the more mundane reason that no one ever thought to regulate them.

A final observation about Kelly: the opinion illustrates how, in many instances, the disparate outcomes we have seen at the lower-court level post-Bruen are due primarily to confusion about how to implement the doctrinal test (rather than some form of partisan resistance to the decision).  Judge Trauger found “no glaring flaws in [the] analysis” by Judge Counts in Quiroz reaching the opposite result on an identical challenge; rather, in her view, the disparity in outcomes is the result of “different judgment calls on reasonably contestable, highly abstract questions of historical analogy.”  Guidance from the appellate courts about how to conduct nuanced analogical reasoning in non-straightforward cases is needed to produce greater consistency at the lower-court level.




Third Circuit Issues Per Curiam Decision Rejecting As-Applied Challenge to Felon-in-Possession Law

On November 16, the Third Circuit Court of Appeals issued a per curiam, precedential opinion in Range v. Attorney General, applying Bruen to a challenge to the federal felon-in-possession law, 18 U.S.C. § 922(g)(1).  The case was brought by an individual convicted of making false statements when applying for a welfare benefit, a misdemeanor under Pennsylvania law that is nevertheless a disqualifying offense under federal law because it carries a maximum prison sentence of more than one year.  Range sought declaratory judgment that 922(g)(1) was unconstitutional as applied to him, a non-violent felon, and the district court granted summary judgment for the government applying the old two-step test that included means-ends scrutiny.

The Third Circuit panel embraced a civic theory of the scope of the Second Amendment, affirming the district court’s decision at “step one” of the Bruen analysis because “individuals like Range, who commit felonies and felony-equivalent offenses, are not part of the ‘people’ whom the Second Amendment protects.”  Alternatively, the panel found that historical laws disarming non-dangerous individuals due to perceived disloyalty or for breaking the “social compact,” in ways not necessarily tied to any assessment of dangerousness, established a historical tradition of analogous regulation.

The panel first conducted the textual-historical analysis.  The panel found that “Bruen provides three insights into pertinent limits on ‘the people’ whom the Second Amendment protects”: (1) Bruen’s repeated reference to “law abiding citizens”; (2) the majority’s endorsement of shall-issue licensing rules that often disqualify felons, even non-violent felons, from carrying guns; and (3) the majority’s failure to overrule Heller’s presumptively-lawful language and statements from the Bruen concurrences that Heller’s holding in that regard is undisturbed.  The panel then proceeded to conduct its own review of the historical evidence and arguments, which it ultimately found consistent with Bruen’s “insight” that status-based laws disarming all felons are lawful.  (While the panel framed its analysis as a single “step” per Bruen, it’s really two related inquiries.  First, do text and history demonstrate that non-violent felons are excluded from the scope of “the people” all together?  And, second, if such individuals are within the scope of the amendment, are historical disarmament laws sufficiently analogous to 922(g)(1) to establish a tradition of similar regulation?)

The panel focused on five historical eras.  First, religion-based disarmament in England in the 17th century showed “the seizure of weapons from individuals whose status demonstrated, not a proclivity for violence, but rather a disregard for the legally binding decrees of the sovereign.”  Second, colonial Protestants similarly took steps to disarm Catholics because they “viewed Catholics as defying sovereign authority and communal values.”  Third, Revolutionary War-era laws disarming those suspected to be British loyalists, or those who refused to pledge a loyalty oath, “disarm[ed] individuals whose [behavior] evinced not necessarily a propensity for violence, but rather a disrespect for the rule of law and the norms of the civic community.”  Fourth, the panel cited the Dissent of the Minority from the Pennsylvania ratifying convention, which proposed exceptions to the Second Amendment “for crimes committed, or real danger of public injury”—emphasizing that this proposal was phrased in the disjunctive and therefore did not appear to automatically equate the commission of a crime with danger to the public.  Fifth, the panel observed that some nonviolent felonies were historically punishable by death and that certain colonial and early state legislatures “authorized the seizure of firearms from individuals who committed non-violent, misdemeanor hunting offenses.”

The panel noted that laws disarming individuals for religious and political reasons are “repugnant” and unconstitutional, but nevertheless “demonstrate legislatures had the power and discretion to use status as a basis for disarmament, and to show that status-based bans did not historically distinguish between violent and non-violent members of disarmed groups.”  Concluding from its historical survey that legislatures disarmed individuals “to address the threat purportedly posed by entire categories of people to an orderly society and compliance with its legal norms,” the panel held both that Range fell outside of the “people” protected by the Second Amendment and that 922(g)(1) is consistent with historical tradition.

The decision in Range is highly consequential because it represents the first major federal appellate decision applying Bruen since that case was decided nearly five months ago.  Range isn’t facially inconsistent with lower-court decisions issued since Bruen, and the panel collects the many district court cases that have recently upheld the felon-in-possession law in a lengthy footnote.  However, Range’s historical analysis of laws disarming those who violate civic norms would likely produce a different result in some recent cases that have struck down other status-based federal firearms prohibitions.  For example, consider the recent decision in United States v. Perez-Gallan, striking down the ban on possessing a gun while subject to a domestic-violence restraining order (which I covered here), or the decisions in United States v. Quiroz and United States v. Stambaugh striking down the ban on receiving a firearm while under felony indictment.  In these cases, applying the reasoning from Range would likely lead to a court to uphold the relevant provision based on a historical tradition of disarming individuals who violate norms of conduct and the “social contract”—regardless of any adjudication of a criminal charge against them.  Therefore, Range’s impact is potentially quite broad, if its analysis is ultimately adopted by other circuits.

Range also illustrates the vast doctrinal upheaval created by Bruen and how that decision has, in certain instances, been misapplied at the district court level.  One might legitimately quibble with Range’s historical analysis: perhaps the judges got it wrong, cherry-picked from the historical evidence presented to them, or relied on briefing that was incomplete.  But if you accept the panel’s analysis of the history, then Bruen is clear that judges must follow that history no matter where it takes them.

In Perez-Gallan, Judge Counts wrote:

Nor should the person who negligently (irresponsibly) forgets to set out the “Wet Floor” sign after mopping lose their Second Amendment rights. Of course not. This Court doesn’t think the Government wants such results, but the absurd consequences are there all the same.

Put aside for a moment the fact that this passage compares the risk of slipping on a wet floor to the risk of being a victim of domestic violence (the defendant in Perez-Gallan was under a domestic violence restraining order as a condition of release after he was arrested for assault).  Bruen seems to make no exception for “absurd consequences,” one way or the other.  When all of the answers are tied to history, courts presumably need to follow the principles they can glean from that history wherever those principles lead.  That is the allure of Bruen’s approach and—whatever one thinks of Bruen’s test—it’s clear that the Supreme Court doesn’t want a judge substituting his or her own feelings for the historical record, full stop.  If history indicates that legislatures can disarm those who violate civic norms without any evidence of dangerousness or violence, then such laws are constitutional today.  Under Bruen, there is no consideration of whether that history is “repugnant,” contrary to modern values, or produces “absurd consequences.”  Bruen does not say, for example, that the government must put forward analogous laws unless those laws were discriminatory, in which case they should be discarded. 

When a judge decides a case in part based on his or her conclusion that a certain holding would produce absurd consequences, that decision is not based solely on the nation’s historical tradition of regulation.  Bruen rejects interest balancing and means-ends scrutiny as judge-empowering.  It explicitly rejects an approach that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests”—in other words, judges can’t decide that a statute’s policy benefits are so important that they outweigh the right to keep and bear arms.  But the corollary is that judges also cannot decide on their own that a law’s policy benefits are so minimal that it would be absurd for a government to enact the law, and therefore strike the law down.  If you read Bruen honestly, even gun laws with no benefit whatsoever may very well be constitutional, if they are steeped in historical tradition.

To be clear, neither the author (nor, one would imagine, most of the country) supports laws that disarm those who forget to leave out a “wet floor” sign, neglect to hold a door for an elderly person, or jaywalk.  The reason those laws are objectionable to most is that we wouldn’t expect them to be effective in preventing gun violence or misuse.  Yet, our modern perception that these laws are nonsensical no longer has any bearing on their constitutionality.  Legislatures may choose not to pass such laws but, if these laws are passed, courts must evaluate them solely by reference to Founding-Era history.

As the opinion in Range recognizes, other Third Circuit judges and at least one sitting Supreme Court justice have already disagreed with the conclusion that non-violent felons can be disarmed under the Second Amendment.  Justice Barrett, in her dissent from the Seventh Circuit’s 2019 decision in Kanter v. Barr as a circuit judge, would have held that “Heller forecloses the ‘civic right’ argument on which a virtue limitation depends.”  In a partial concurrence to the Third Circuit’s 2016 decision in Binderup, Judge Hardiman (joined by four other judges) similarly interpreted the history to support only exclusions from the right based on perceptions of dangerousness.  And, dissenting from 2020 decision in Folajtar, Judge Bibas of the Third Circuit wrote that “[t]he virtue theory is not supported by history.”




Federal Judge Strikes Down Ban on Possessing Guns While Subject to a Domestic Violence Restraining Order

On November 10, Judge David Counts of the Western District of Texas issued an opinion in United States v. Perez-Gallan holding unconstitutional 18 U.S.C. § 922(g)(8), the federal ban on possessing a firearm while subject to a court order that “restrains [the possessor] from harassing, stalking, or threatening an intimate partner . . . or child  . . . , or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.” 

Judge Counts has issued multiple opinions in recent months applying Bruen, including a September decision in United States v. Quiroz striking down the federal ban on receiving a gun while under felony indictment, which Jake addressed in an earlier post.  Judge Counts also rejected challenges to the federal felon-in-possession ban in United States v. Collette (September 25) and United States v. Charles (October 3), relying in both cases on analogies to the First Amendment and the right to vote to conclude that felons may be excluded from “the people” protected by the Second Amendment.

In Perez-Gallan, the defendant was apprehended with a pistol while subject to a restraining order from a Kentucky family court and moved to dismiss the indictment, arguing that § 922(g)(8) is unconstitutional under Bruen.  According to the government’s opposition brief, the defendant’s restraining order was issued after “an arrest for assault, 4th degree (domestic violence) minor injury.” 

Judge Counts first concluded that the Second Amendment covers the conduct at issue:  possession of a firearm.  He then divided Bruen into something of a two-part inquiry.  If the regulation at issue addresses a problem that has persisted throughout history, then the test is “straightforward” and the lack of similar historical laws to address that problem is generally dispositive.  Other modern regulations that implicate more complex and recent problems, Judge Counts said, require a nuanced approach under Bruen.  The judge first observed that both § 922(g)(8) itself, and protective orders designed to guard against domestic violence, are of relatively recent vintage.   He then observed that “until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.”  Judge Counts analyzed the history of government intervention in domestic violence and found no evidence that states had addressed the problem by removing the offender’s weapons.  The judge also consulted pre-Bruen cases that performed historical analysis at “step one.”  He concluded that these cases found that the protective-order ban and similar domestic-violence prohibitions were not longstanding and upheld the laws only under “step two,” the means-ends scrutiny step which Bruen rejected.

Finding a lack of any “‘straightforward’ historical support for § 922(g)(8)’s proscriptions,” Judge Counts stated that he would nevertheless engage in a “more nuanced” approach.  He first evaluated, and rejected, the possibility that the Second Amendment’s protections are limited only to law-abiding citizens, which he said would lead to “absurd consequences” such as “the person who negligently (irresponsibly) forgets to set out the ‘Wet Floor’ sign after mopping los[ing] their Second Amendment rights.”  The opinion then considered the government’s argument that § 922(g)(8) can be analogized to historical surety laws.  The judge held that surety laws were not analogous because they dealt with concerns about gun misuse in a “materially different way”—by requiring the posting of a surety bond, rather than criminalizing gun possession.  Judge Counts also rejected the government’s argument that state ratifying convention debates indicated a desire to restrict the Second Amendment protection to those not considered a threat to public safety.  These proposals were not adopted, he noted, and they did not indicate that “the colonies considered domestic abusers a threat to public safety.”  Finally, Judge Counts found that colonial-era loyalty oaths were not appropriate analogues because the Second Amendment itself was designed to prevent disarmament based on political statements or affiliation.

Outside of the Second Amendment context, Judge Counts found that neither the First Amendment nor the constitutional right to vote in Section 2, Article I support excluding those subject to restraining orders from constitutional protections generally.  While noting his “concerns with reading Bruen so strictly” and with the consequences of Bruen’s reliance on party presentation, Judge Counts ultimately found “that the Government did not prove that § 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation.”  Therefore, he struck down the provision as unconstitutional.

In closing, Judge Counts addressed the large number of opinions he himself has issued applying Bruen in the less than five months since that case was decided.  Judge Counts stated that, while he might “be more comfortable waiting until the courts form a consensus on interpretation post-Bruen,” he does not believe he has that luxury because constitutional challenges pause the timer on a criminal defendant’s speedy trial right.  In other words, the judge feels compelled to rule on these cases quickly to ensure that defendants are not left in limbo.

It is difficult to square the historical analysis in Perez-Gallan with Bruen’s statement that “other cases implicating unprecedented societal concerns . . .  may require a more nuanced approach.”  Judge Counts clearly identifies this distinction in his opinion, but seems to ultimately conclude that the “more nuanced approach” is identical to the historical analysis in Bruen itself.  For example, the discussion of surety statutes in Perez-Gallan is difficult to distinguish from Bruen’s analysis of those laws—Judge Counts focuses, just as the Bruen majority did, on the timing and burden of those laws to distinguish them from § 922(g)(8).  But Bruen itself is clear that it only conducts the “straightforward” analysis, not the “more nuanced approach.”  Of course, the Court doesn’t provide much guidance on what the “nuanced” approach looks like; but, presumably, that approach demands a somewhat higher level of generality. 

Judge Counts also seems too willing to conclude in Perez-Gallan that the existence of domestic violence in the Founding Era, coupled with a legislative approach different from § 922(g)(8), settle the modern constitutional question.  The problem with that conclusion is that Bruen itself identifies unprecedented societal concern as a factor that changes the analysis.  The question is not simply whether the problem that the law seeks to address is new (which here, and in most cases, it will not be), but rather whether societal concern regarding that problem is new. 

By almost any metric, it is safe to say that concern for preventing domestic violence is unprecedented; and that “concern” includes a focus on restricting those convicted of domestic-violence crimes or subject to domestic-violence restraining orders from possessing guns.  For example, by one count, 42 states and D.C. either require or authorize those who are subject to a domestic-violence restraining order obtained after notice and a hearing to be barred from possessing guns (with most states requiring those individuals be disarmed).  These laws are relatively new, and one need not look much further than the recent Bipartisan Safer Communities Act—which expanded the federal prohibition on gun possession by domestic violence misdemeanants—as evidence of this unprecedented concern.  The concern is driven by greater understanding about the role of firearms in domestic violence incidents.  For example, a 2017 CDC study showed that over 50% of female homicides for which the circumstance of death was known were committed by an intimate partner, and that over half those homicides involved a gun.  While domestic violence recidivism rates are difficult to measure accurately, a 1992 study suggested that recidivism rates for those offenders who completed domestic violence treatment programs might range from 22% (reported by the offenders themselves) to 36% (reported by their spouses).

Under Bruen, concluding that societal concern about the use of guns in domestic violence incidents is unprecedented should lead a court to apply a higher-generality analogical inquiry.  In this situation, what is unprecedented is the recognition that the availability of guns can lead to an increase in domestic violence and the conclusion that the state has a role to play in removing guns from situations where they are at a higher risk of being used to commit domestic violence.  In other words, there is an unprecedented appreciation in modern society that those who have committed domestic violence in the past (and are thus among the most likely to do so in the future) are dangerous when armed.  That should be sufficient under Bruen to analogize modern domestic-violence-related gun restrictions to Founding-Era laws based on assessments of “dangerousness.” 

Judge Counts makes it almost that far, identifying Justice Barrett’s dissent in Kanter v. Barr and her statement that “[h]istory is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.”  Judge Counts, however, ultimately concludes that he cannot take “the leap of faith” to say that “the colonies considered domestic abusers a threat to public safety.”  It should be enough, however, that the colonies saw fit to disarm those they viewed as dangerous at the time, and that today we view those who have been convicted of domestic violence offenses or are subject to a domestic violence restraining order as dangerous.  That is the type of “more nuanced approach” that Bruen itself requires when dealing with unprecedented concerns.




District Judge Considers Appointing an Expert Historian to Evaluate Arguments under Bruen

In a six-page order issued on October 27, Judge Carlton Reeves of the Southern District of Mississippi directed the parties in a case challenging the constitutionality of the federal felon-in-possession ban to submit briefs on the issue of whether the court “should appoint a historian to serve as a consulting expert.” 

Judge Reeves noted that the parties disagree on whether there is a historical tradition of disarming felons and that “historical consensus on this issue is elusive.”  Observing that he is neither a “trained historian” nor an “expert[] in what white, wealthy, and male property owners thought about firearms regulation in 1791,” the judge concluded that Bruen nevertheless requires him “to play historian in the name of constitutional adjudication.”  Judge Reeves noted that historians frequently criticize historical analysis by judges and lawyers.  To avoid accusations of cherry-picking from the historical record, the judge proposed appointing an expert historian to assist him with the case.  Specifically, the order noted:

This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals. An expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions.

One likely response to Judge Reeves’ order is that Bruen itself addressed and resolved concerns about judicial capacity to engage in historical analysis.  For example, in his recent decision granting in part the plaintiffs’ motion for a preliminary injunction of New York’s post-Bruen gun law in Antonyuk v. Hochul, Judge Glenn Suddaby wrote:

As for how to interpret these laws, in this Court’s experience, what would be most helpful in properly applying the NYSRPA standard is not a court-appointed expert historian under Fed. R. Evid. 706 (who the losing party might argue was more like a court-anointed expert historian). . . . What would be more helpful to this Court is the testimony of opposing historians with expertise in the time periods and regions that produced the laws. 

The majority opinion in Bruen similarly responded to Justice Breyer’s argument that a historical test will prove unworkable in practice because judges lack historical expertise by pointing to “our adversarial system of adjudication, [where we] follow the principle of party presentation.”  The majority stated that “[c]ourts are thus entitled to decide a case based on the historical record compiled by the parties” without having to “resolve historical questions in the abstract.”  For this point, the majority cited a 2019 law review essay by Professors William Baude and Stephen Sachs.  Professors Baude and Sachs argue that, “at its core, originalism demands no more of the past than ordinary lawyering does,” but rather “simply reflects a decision by today’s law to grant continuing force to the law of the past.”  In their view, “originalism involves a highly limited version of the historical inquiry—one that uses limited evidence in limited ways, and one that can resolve controversies even in the face of occasional uncertainty.”

But even accepting the Baude and Sachs position that “our legal system contains a wealth of shortcuts, default rules, and burdens of proof to resolve disputed questions when we lack certainty about the actual answers,” is there anything inherently problematic with involving expert historians?  For one, even if judges do not independently examine the historical record, they still must—as Judge Reeves observes—resolve disputed historical questions that arise through party presentation.  It’s one thing to say, as Bruen does, that we can rely on our adversarial system of party presentation to decide disputed historical facts.  But that does not obviate the burden on judges to actually adjudicate between different versions of history.  And, to do so, judges should feel free to rely on expert historians—although getting the parties to agree on a single expert historian may prove challenging given deep divides among Second Amendment historians on how to parse the historical record.  Indeed, Professors Baude and Sachs cite a 2013 law review note by Joshua Stein that evaluated the historian’s role in jurisprudence and endorsed an approach where “historians can be appointed just as special masters might be . . . [to] submit their interpretations or recommendations directly to the Court.”  Stein also observed that the judicial branch “could [] create a new institution of historical research, akin to the Congressional Research Service.”

There’s no reason to shy away from these suggestions, and the legal profession should not presume that adversarial presentation and burdens of proof are a complete substitute for the input of expert historians.  In other words, historians can and should be involved in this inquiry, notwithstanding that the legal system requires a determinate answer even when history cannot always provide one.

However, concerns may arise with Judge Reeves’ proposed approach.  The historian’s role would be similar to the Supreme Court’s past use of special masters in original-jurisdiction state boundary disputes.  As Anne-Marie Carstens described in a 2002 law review article, “the Court has delegated greater pockets of its fact-finding and its legal decision-making authority in original jurisdiction cases to Special Masters,” often in state-versus-state border disputes such as the 1990s dispute between New York and New Jersey over Ellis Island.  And the Court often adopted or agreed with special master recommendations in those cases.  Carstens is generally critical of the Court’s reliance on special masters in this context to determine historical and legal questions, both because of concerns about lack of accountability and the lack of guidance provided to special masters by the Court.  She suggests as a primary solution “adoption of a set of procedures that would increase consistency and reduce incongruous results among and within cases.” 

Similarly, if expert historians are retained directly by judges to sift through historical sources as part of the Bruen analysis, the judge must still clearly articulate the bounds of the historian’s inquiry and answer questions such as:  What is the universe of evidence the historian may consider?  Is the historian limited only to the historical laws and evidence proffered by the parties, even if the historian may themselves be aware of additional or contrary facts or sources?  And how should the historian weigh historical sources other than laws themselves, such as enforcement records or secondary-source commentary like historical treatises?

Judge Reeves’ order also raises a recurring critique of originalism: that it limits judges to white male views because only white men (and, in some instances, only those who owned a certain amount of property) could participate in the political process in the Founding Era.  Jake previously summarized an Ohio state court judge’s dissent that touched on this issue.  As the late Duke professor Jerome Culp, Jr. observed:

Blacks were not consulted by the “Founders” nor were their concerns considered relevant by the drafters. Jefferson wrote the Declaration of Independence and Madison wrote the preliminary draft of the Constitution-Frederick Douglass did not. Black people cannot enter the dispute about how to define essential terms because they were not present. “Defer to the past” is the implicit message. Listen to the wiser and greater (and whiter) founders.

This is a critique that naturally leads to the Bruen’s majority’s statement that its analogical test “requires judges to apply faithfully the balance struck by the founding generation to modern circumstances” and that “20th-century evidence . . . does not provide insight into the meaning of the Second Amendment when it contradicts earlier evidence.”  While scholars have written extensively in recent years about the racist origins of many early American gun laws, anyone who emphasizes this must also account for the fact that the process of drafting, approving, and ratifying the Constitution and Bill of Rights (the “balance struck” by the Founding generation) was also thoroughly racist in that it almost entirely excluded Blacks, women, and other minority groups.




The Coming Clash Between Medical Marijuana and Gun Rights

On October 28, Delaware Governor John Carney vetoed a bill intended to allow individuals with a valid medical marijuana prescription to possess a gun under state law.  The bill, H.B. 276, would have “ma[de] clear that an individual is not disqualified under Delaware law from possessing a firearm because the individual is a registered qualifying patient under the Delaware Medical Marijuana Act, if the registered qualifying patient is not” otherwise disqualified under state law.  The bill had passed by comfortable majorities in the state house and senate. 

In a letter explaining his decision to veto the bill, Governor Carney wrote that the bill “risks creating confusion about the rights of medical marijuana patients – under federal law – to purchase firearms here in Delaware.”  As Governor Carney noted, marijuana remains illegal under federal law and federal law disqualifies unlawful drug users from possessing firearms.  The Governor stated that, in his opinion, Delaware law already does not prohibit individuals from possessing guns based on medical marijuana use (because medical marijuana is not defined as a controlled substance under state law)—so, he believes the bill would both add nothing to the state’s framework and risk confusing those who are still prohibited from possessing guns under federal law.

The Delaware bill is not the first of its kind to be introduced in recent years at the state level.  In 2019, Colorado legislators introduced a sweeping bill that would “clarif[y] that a person is not prohibited from carrying a firearm [under state law] if the prior conviction was for the possession or use of marijuana that was lawfully possessed or used pursuant to the Colorado constitution.”  The Colorado bill, which did not advance in the state legislature, purported to go even further and deem an individual not ineligible to possess a gun under federal law based solely on medical marijuana use within Colorado.

This has all occurred amid growing momentum for marijuana legalization at the federal level.  Earlier in October, President Biden issued a blanket pardon to those convicted of simple possession of marijuana offenses under federal law.  President Biden’s announcement of the pardon also “ask[ed] the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”  More states continue to legalize marijuana for both medical and recreational use—per one source, at least 37 states plus D.C. currently permit marijuana use for medical purposes, and 19 states plus D.C. permit recreational use.  These developments naturally lead to the following question: as states (and, possibly, the federal government) move toward marijuana legalization in some form, will marijuana users whose use is legal under state law be allowed to buy and possess firearms? 

Federal law currently bans an individual who “is an unlawful user of or addicted to any controlled substance” from possessing a firearm.  Marijuana remains a controlled substance at the federal level, and courts have interpreted the “unlawful user” prohibition to bar even a one-time marijuana user from possessing a gun.  In fact, this very issue is the subject of a pending petition for certiorari: in Carnes v. United States, the petitioner challenges application of this standard and argues for a “regular-use” threshold.   In 2011, ATF issued a letter to federal firearms dealers confirming that even those individuals using medical marijuana permitted by state law are “unlawful users” and are “prohibited by Federal law from possessing firearms or ammunition.”  And in a 2016 decision in Wilson v. Lynch, the Ninth Circuit rejected a challenge by a medical marijuana patient who had sought to purchase a firearm, applying intermediate scrutiny and relying in part on empirical evidence and legislative determinations that “support the link between drug use and violence.” 

An the state level, a 2011 Oregon Supreme Court decision held that the federal “unlawful user” prohibition did not preempt an Oregon requirement that the local sheriff issue a concealed-carry license to an otherwise-qualified applicant who was a user of medical marijuana.  The outcome in the Oregon case was that the sheriff must issue the permit if the applicant is otherwise-qualified, although the license holder is still subject to the federal ban and can be arrested for violating it.  Federal courts, however, have generally rejected challenges to the “unlawful user” prohibitor by medical marijuana users in states where medical use is legal, as Dru Stevenson described in a prior blog post.  (For more background information, see this February 2022 essay by Jonathan McGowan in the Harvard Journal of Law & Public Policy.)

One potential clue as to how the conflict between federal gun laws and legal marijuana use may play out comes in an ongoing lawsuit in Florida filed by Florida’s Agriculture Commissioner Nikki Fried and other medical marijuana users.  The case, Fried v. Garland in the Northern District of Florida, was filed in April 2022.  The plaintiffs argue that the federal “unlawful user” prohibition violates the Second Amendment and frustrates the implementation of Florida’s medical marijuana program.

The initial complaint argued in largely empirical terms that studies showing a link between drug use and violent crime are of limited value in a context where users legally purchase marijuana for medical use.  However, in light of Bruen, the subsequent briefing has focused on historical arguments.  The United States argues in it motion to dismiss that medical marijuana users are not law-abiding citizens and therefore outside the scope of the Second Amendment, and that “disarming unlawful drug users is consistent with history and tradition.”  The government’s brief argued both in broad strokes that there is a historical tradition of disarming dangerous and unvirtuous citizens, and more narrowly that “a long tradition exists of viewing intoxication as a condition that renders firearms possession dangerous, and accordingly restricting the firearms rights of those who become intoxicated”—citing colonial and state laws stretching from 1655 to 1899.  In response the plaintiffs contend that:

Defendants can point to no law from or near [the Founding Era] that fought intoxication by wholly disarming individual[s] who generally drank alcohol, used marijuana, or ingested any other substance. Instead, the cited historical regulations they [sic] sought to keep firearms out of individuals’ hands while they were under the effect of the substance.

Notably, the plaintiffs also devote substantial space to detailing “[f]actual evidence disputing the hypothesis that medical marijuana patients are violent,” including crime statistics and medical guidance.  A hearing on the motion to dismiss was held on October 12, but the judge has yet to rule.

I’ll offer a couple of observations about the path forward in this area.  First, the Fried plaintiffs seem to have the better of the historical argument here if a court requires analogues dealing specifically with intoxicating substances, rather than conducting the inquiry at a higher level of generality.  It is difficult to say that historical laws banning the possession or purchase of guns while intoxicated support a blanket ban on a medical marijuana user, whether a one-time or regular user, possessing guns even when not under the influence of marijuana—although these historical laws almost certainly support prohibiting possession while using marijuana.  With that said, it is difficult to envision how such a regime would operate effectively in the real world.  For example, it is much more administrable from a legislative perspective to ban guns in establishments serving alcohol rather than banning possession on an individual basis when a person is intoxicated.

Second, the post-Bruen briefing in Fried is notable for its continued focus on empirical studies and statistics.  For example, the plaintiffs argue that “[t]he Defendants have not offered evidence indicating that state-compliant medical marijuana use leads to violence.”  The plaintiffs clearly believe they have the better of that argument, because studies show a link only between violent crime and illicit drug transactions (in their view).  But, after Bruen, the relevance of such evidence is a matter of open debate.  As Center Co-Director Darrell Miller and others have written, “[i]f we understand the principle at the founding era as prohibitions on dangerousness, then this seems like an area with a clear role for empirical evidence under the historical translation framework.”  In other words, empirical data is still needed to determine which groups are properly deemed dangerous today.  Fried clearly illustrates how such evidence might enter the picture, and why even those challenging gun laws may continue to make empirical arguments.  If a historical principle of restricting dangerous individuals from possessing guns is established, then a court must consider empirical data in some form to see whether the modern law at issue fits into this framework—or whether, as the plaintiffs in Fried argue, the law is overbroad in encompassing many non-dangerous drug users. 

[Addendum:  This past Friday, November 4, District Judge Allen Winsor issued an order granting the government’s motion to dismiss in Fried. The judge “assume[d] . . . that [medical marijuana users] are included in ‘the people’ the Second Amendment protects.”  Because marijuana use remains criminal under federal law notwithstanding the Rohrabacher-Farr Amendment, the “tradition of disarming those engaged in criminal conduct” applies to medical marijuana users, the judge found.  He also rejected the plaintiffs’ argument that the government was required to point to “an analogous situation in or around 1791 or 1868 where a person who only took actions for which they could not be criminally punished would be considered not ‘law-abiding.’”  Judge Winsor found that this standard “demands too much specificity in the historical tradition” and would potentially make the government’s case for disarming any drug user turn on the likelihood of federal prosecution for a drug-specific offense (rather than simply whether that drug is scheduled under federal law).  The burden of the current federal restriction, Judge Winsor said, was also “arguably less onerous” than historical laws which permanently removed Second Amendment rights.  As to the government’s reliance on historical laws “restricting gun possession of the intoxicated” and mentally ill, Judge Winsor similarly agreed with the government that “habitual drug users are analogous to other groups the government has historically found too dangerous to have guns.”  Finally, the judge rejected the claim that federal spending to enforce the “unlawful user” prohibition violates the Rohrabacher-Farr Amendment, even if such enforcement would have an “ancillary deterrent effect” on gunowners seeking to use medical marijuana.]




What do Recent Decisions on Federal Group Prohibitions Signal for Heller’s List of Presumptively Lawful Regulations?

In a September 19 decision in United States v. Quiroz, a judge in the Western District of Texas struck down the federal law barring those under indictment for a felony offense from receiving firearms, finding that the ban “departs from this Nation’s historical tradition of firearm regulation.”

One notable aspect of the decision is its treatment of the Supreme Court’s statement in Heller that the “opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” among other laws.  In Quiroz, the government argued that the Court’s endorsement of the felon-in-possession law necessarily meant that the felony indictment ban was also constitutional because those two laws have the same historical pedigree.  Judge David Counts’ opinion called this argument “a logical fallacy” and, perhaps more importantly, asserted that:

Heller’s endorsement of felon-in-possession laws was in dicta.  Anything not the “court’s determination of a matter of law pivotal to its decision” is dicta.  Dicta is therefore “entitled to little deference because they are essentially ultra vires pronouncements about the law.”  Or, as Francis Bacon put it, dicta is only the “vapours and fumes of law.” ‘

Less than a week later, in a decision dealing with a challenge to the federal felon-in-possession ban specifically (United States v. Collette), Judge Counts was slightly less direct in criticizing Heller’s dicta.  However, he stated that:

[T]his is where Bruen conflicts with Heller. Heller called proscriptions against felons possessing guns “presumptively lawful.”  In contrast, because possession is covered by the Second Amendment’s plain text, Bruen makes a felon’s possession of a firearm “presumptively constitutional.”  Bruen is the controlling standard, but this conflict—the presumption of constitutionality—is what places the heavy burden on the Government.

In general, comments or observations in an opinion that are not necessary to resolve the case at hand are dicta and are not binding on lower courts.[1]  As the Supreme Court has explained, “[t]he question actually before the Court is investigated with care, and considered in its full extent[, but o]ther principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”  Cohens v. Virginia, 19 U.S. 264, 399-400 (1821).

Notwithstanding this distinction, however, many appellate courts accord holding-level status to Supreme Court dicta.  Some circuits have precedential cases that essentially require lower courts to follow such dicta in almost all instances.  See, e.g., McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991) (“We think that federal appellate courts are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings.”).  In fact, the 5th Circuit—which will consider the government’s appeal of the Quiroz decision—generally accords great deference to Supreme Court dicta.  See United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980) (“We are not bound by dicta, even of our own court. . . . Dicta of the Supreme Court are, of course, another matter.”) (emphasis added).  As Judge Pierre Leval describes, “[v]arious reasons are given [for treating Supreme Court dicta differently]: Great respect is owed to the Supreme Court; it always sits en banc, assuring that all of its Justices have participated in whatever it decides; its small docket means it will not likely hear enough cases to cover any area of law by its holding.” 

Of course, Quiroz was not a challenge to the felon-in-possession law.  But Judge Counts’ decision to disregard entirely the list of presumptively-lawful regulations from Heller is potentially indicative of a broader question about how lower courts will treat Heller’s dicta going forward after Bruen.  Prior to Bruen, courts upheld the laws that the Court enumerated as permissible in Heller.  For example, by 2018 lower courts had rejected 99% of the 273 challenges to the federal felon-in-possession law.  But the lower courts did not merely apply Heller’s dicta blindly.  Joseph Blocher and Eric Ruben’s empirical analysis of post-Heller decisions found that decisions invoking the “presumptively lawful” list were more likely to devote substantial space to legal analysis of Second Amendment claims, “suggesting perhaps that Heller’s exceptions are not being used as a shortcut to avoid scrutiny.”

And the lower courts certainly did not always apply the presumptively lawful list without voicing reservations about the approach.  For example, in a concurrence to the 10th Circuit’s 2009 decision in United States v. McCane, Judge Timothy Tymkovich agreed that the Court was obliged follow Heller’s dicta but noted with palpable frustration that the Court had provided its list of presumptively-constitutional regulations “without any explanation of how they would fare in light of the Second Amendment’s original meaning.”  Judge Tymkovich went on to suggest that “the existence of on-point dicta regarding various regulations short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts.”

While Bruen itself neither dealt with, nor provided substantive guidance on, the constitutionality of group prohibitions such as the felon-in-possession ban or other similar laws, the concurrence by Chief Justice Roberts and Justice Kavanaugh reproduced Heller’s list of presumptively lawful regulations in its entirety.  The majority opinion did not. 

What can we expect for Heller’s dicta moving forward?  First, it may be that the Bruen majority neglected to reproduce Heller’s list of permissible regulations because it finds the idea of the Supreme Court articulating permissible laws at odds with Bruen’s historical-analogical method.  The majority states that historical-analogical reasoning is “more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions.’”  Taking that statement at face value, it seems to clash with a judicially-dictated list of allowable regulations—if the historical record provides the most legitimate and faithful picture of what regulations were considered consistent with the Second Amendment when ratified, then it would appear that all laws should be evaluated solely by reference to history.  It’s hard to imagine that the Bruen majority is on board with the inscrutable method of the Supreme Court dictating permissible laws without explanation, especially when it believes that means-ends scrutiny is too judge-empowering. 

Perhaps the majority’s omission of the presumptively-lawful list was intentional, and the majority shares Judge Tymkovich’s view that this approach has inhibited doctrinal development in the lower courts.  This appears to be the exact concern that Judge Counts expressed in Collette—the idea that Bruen necessarily “conflicts” with Heller’s presumptively lawful list.  If correct, this would have major consequences going forward.  The felon-in-possession law itself, as Judge Counts observed, is simply not longstanding.  And the Founding-era evidence for banning even certain groups of felons from possessing guns is heavily contested and depends on the level of generality at which a judge approaches the inquiry.

On the other hand, as Jake has observed, Bruen contemplates a first-step inquiry that determines whether the “person, weapon, and conduct” are within the Second Amendment’s plain text.  By focusing only on conduct and not considering whether the person is within the scope at step one, Judge Counts’ analysis in Collette missed the mark.  There is no inherent conflict between Heller’s presumptively-lawful list and Bruen because Bruen still contemplates a step-one inquiry where certain groups of people are outside the scope of the amendment—without reference to analogous historical regulations.  There is not, as Judge Counts suggests, a presumption of constitutional protection for gun possession by all persons including felons, the mentally ill, and undocumented immigrants.  Such an approach is inconsistent with both Heller and Bruen

Second, there is perhaps a stronger rationale for according holding-level status to Supreme Court dicta in an area of law—such as the Second Amendment—where Supreme Court opinions have been few and far between.  With such little guidance from the Court, it seems even more appropriate for lower courts to adhere to dicta such as Heller’s list of presumptively lawful regulations.  And if lower courts are going to follow dicta, there’s a case to be made that they should treat it in the same way as they would an actual holding:  the list should be followed until or unless it is specifically revoked by the Court.  Bruen did not say anything explicit to cast doubt on Heller’s presumptively lawful list, the list can be mapped onto Bruen’s step one inquiry without any inherent conflict, and the most faithful route for lower courts is to read Bruen as a continued endorsement of the list.

Finally, Judge Counts’ decision in Quiroz raises the troubling prospect that courts may treat different pieces of Supreme Court dicta differently in Second Amendment cases.  Bruen, for example, appears to itself contain dicta in various places.  When the majority opinion makes broad pronouncements such as “we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation,” or “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence,” these statements are dicta if the actual basis for the Court’s holding is its subsequent detailed analysis of potential historical analogues.  The Court could have applied a blanket rule that three historical laws can never constitute a historical tradition of comparable regulation, a rule which would have obviated the need to do any analysis of the specific laws in question.  But the Court did not ultimately decide the case that way, so its passing observation that it is doubtful whether three laws could ever constitute a tradition was simply superfluous judicial commentary.  If courts are going to disregard Supreme Court dicta—notwithstanding cases suggesting that recent dicta is generally binding—they should at least be consistent in parsing opinions to distinguish between the central holding and statements that are merely ancillary and unnecessary to reach that holding.

[1] Black’s Law Dictionary defines dictum (or obiter dictum) as “[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).” 




Worrying Trends In the Lower Courts After Bruen

There are several extremely worrying trends from what I’ve seen in the still nascent post-Bruen Second Amendment case law. These concerns don’t arise from disagreement with constitutional originalism or with the Supreme Court’s interpretation of the Second Amendment. They are concerns about lower courts’ capacity (and perhaps willingness) to apply a historical method in a way that appropriately sets the boundaries around the state’s role in securing public safety given the individual’s right to keep and bear arms. Whatever one’s views of the ultimate issue in these cases, the lower courts’ muddied attempts to implement Bruen should be concerning.

Bruen ushered in a test that requires courts to undertake a two-step inquiry when assessing challenges to gun laws. At step one, courts determine whether the “plain text” of the Second Amendment covers the challenged action. If the text does cover the action, the government then bears the burden of showing that the challenged regulation is consistent with the nation’s historical tradition of regulating firearms. In just the three months since the Court decided Bruen, lower courts are already showing the limits of a strictly historical test—at both stages of the Bruen inquiry.

  1. Step One Problems.

Recall that step one requires courts to ascertain whether what the challenger wants to do falls within the “plain text” of the Constitution. One could certainly take issue with that as the standard, ripe as it is with ambiguity and lack of guidance over what constitutes “plainness.” But even taking it at face value, lower courts are botching the inquiry.

  • Protected “Arms.”

In a case decided on September 23, Rigby v. Jennings, a federal judge in Delaware struck down provisions of Delaware’s new “ghost gun” law that prohibited distribution, possession, and manufacturing of unserialized firearms. Whatever one thinks of the outcome, the court’s reasoning is quite weak. In fact, it doesn’t even correctly apply what has long been—and Bruen seems to confirm as—the test for deciphering whether a weapon constitutes a protected “arm” at all: whether the weapon is in common use by law-abiding citizens for lawful purposes. Instead of requiring the plaintiffs to offer evidence that ghost guns are commonly used for lawful purposes, the court said the state “ha[d] offered no evidence to support the assertion [that such guns were not in common use].” It even expressly rejected the notion that the plaintiff bears the burden to show the weapons are part of the “plain text,” writing that “[i]t is, however, Defendant’s burden to prove that the challenged regulation does not implicate the Second Amendment.” But it simply cannot be the case that every weapon is presumptively covered unless the government proves it is not in common use. At the very least, it seems like the statistics offered by Delaware showing that ghost guns are frequently recovered from crime scenes would shift the burden back to the plaintiff to rebut that showing (for example, by offering some evidence of lawful use). The plain text Bruen step is a threshold inquiry and Bruen talks about the burden falling on the government at the second step, which only makes sense if the plaintiff bears the burden at step one.

  • Protected “People.”

In United States v. Quiroz, decided on September 19, the Western District of Texas struck down the federal law barring those under indictment for a felony offense from receiving (but not possessing) firearms during the pendency of the charges. At Bruen step one, the court misread the decision. The court read Bruen to allow only an inquiry into whether “the conduct” fell within the scope of the Second Amendment’s plain text and said that, for example, bans on felon firearm possession would clearly be within the Second Amendment’s plain text because they bar “possession,” i.e, “keep[ing]” arms and the person’s status is adjudicated only at the step two. That’s a mistaken reading of the opinion. Bruen frames the inquiry at step one in terms of “conduct” only because the case concerned conduct—public carry—not a question about what weapons are protected (“Arms”) or what people are covered (“the People”). In fact, when applying the method it announced, Bruen showed that these other inquiries are properly step-one “plain text” inquiries:

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.

(Citations omitted). The Court understood step one to require that the person, weapon, and conduct fell within the Second Amendment’s “plain text” before moving to step two. The Quiroz court failed to apprehend this important point by focusing too narrowly on the specific challenge in Bruen. That decision matters for a host of reasons, including that if certain people, weapons, or conduct are outside the scope of the Second Amendment at step one, the government doesn’t then bear the burden of presenting a historical tradition to support its regulation (which may be all the harder if the original ratifying public understood something to be outside the scope altogether and so didn’t debate it as thoroughly as modern legislatures might).

  • Sensitive Places.

In Heller, the Court declared that governments may prohibit guns in certain “sensitive places” like schools and government buildings. Bruen reaffirmed the sensitive places carveout, and in fact used sensitive places as a prime example of how to conduct the analogical reasoning it now demands. But on August 31, 2022, a judge in the Northern District of New York, in Antonyuk v. Bruen, declared nearly the whole set of New York’s post-Bruen sensitive place designations unconstitutional with barely any analogical reasoning at all. What’s worse, the court stated that “the Supreme Court in [Bruen] effectively barred the expansion of sensitive locations beyond schools, government buildings, legislative assemblies, polling places, and courthouses.” Such a statement directly contradicts Bruen’s own language describing analogical reasoning and sensitive places. There, after listing several sensitive locations, the Court wrote that lower “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” The emphasis in the original Bruen opinion on “new” makes the Antonyuk court’s reasoning all the more perplexing.

  1. Step Two problems.

Bruen’s second step requires the government to prove that a regulation implicating people, conduct, or arms falling within the “plain text” of the Second Amendment is consistent with the American historical tradition of firearms regulation. Bruen didn’t offer any guidance for how widespread—geographically or temporally—such a tradition must be, and lower court treatment to date does not provide confidence that district judges can figure out this question in a way likely to lead to predictability, consistency, or judicial restraint. Two cases—reaching opposite conclusions on the constitutionality of a challenged law—illustrate the problem.

Consider first the August 25, 2022 decision in Firearms Policy Coalition v. McCraw, issued by the Western District of Texas. In that case, the judge struck down Texas’s prohibition on handgun carrying by those under 21 years old, holding that 18-20 year olds have a Second Amendment right to carry and that the state had not met its burden to show that such restrictions were part of the nation’s historical tradition. Even though this was a challenge to a state law, where the Fourteenth Amendment’s incorporation of the Second Amendment made that amendment binding on Texas, the court considered Founding-era tradition to be the relevant benchmark. (Bruen helped create this mess by explicitly not deciding whether 1791 or 1868 should be the relevant time period for challenges to state laws under the Second Amendment.) That choice is debatable, but then the District Court stated that, even if it looked to Reconstruction-era history, Texas still failed to carry its burden because “[a]t most, Texas’s historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on ‘the purchase or use of firearms’ for those younger than 21.” (Emphasis added.) But those restrictions, said the court, can’t support Texas’s prohibition. That’s quite a strange reading of history and use of analogical reasoning, and it seems to make the existence of regulations in nearly half the states insufficient to create a historical tradition!

Contrast FPC v. McCraw with National Association for Gun Rights v. City of San Jose, decided by the Northern District of California on August 3, 2022. There, the District Court upheld San Jose’s requirement that gun owners procure firearms liability insurance. In finding that the city had “presented a sufficiently ‘relevantly similar’ historical regulation” the court relied on surety laws—which could be used to require an armed person to post a peace bond upon a complaint or suspicion that they would breach the peace—as a relevant analogue. It granted the plaintiffs’ point that one distinction between the insurance mandate and surety laws was that the latter operated after-the-fact based on individualized suspicion of potential gun misuse. But the court held such a distinction immaterial for the purposes of establishing an analogue. The court did not mention or explore how widespread surety laws were, how often they were applied or enforced, or how long such laws stayed in effect. Bruen itself focused on these aspects of surety laws, so the absence of such investigation in this decision is strange. Although the bottom line conclusion is again debatable (in my opinion), the vastly different ways that a federal court in California and a federal court in Texas looked for historical analogues indicates that Bruen isn’t delivering on its promise of consistency, reliability, and a check on judicial imposition of policy preferences.




Justice Thomas’ Dissent in Voisine and Non-Felon Prohibitions

As litigators and judges grapple with Bruen’s historical tradition test, one issue that is sure to surface repeatedly is the status of group prohibitions on gun possession.  Notably absent from the list of “presumptively lawful” restrictions in Heller is the federal prohibition on gun possession by those convicted of domestic-violence misdemeanor offenses, codified at 18 U.S.C. § 922(g)(9).  The provision was recently expanded by the Bipartisan Safer Communities Act to cover offenses against non-spouse victims with whom the perpetrator has a “continuing serious relationship of a romantic or intimate nature.”

The Supreme Court considered the domestic-violence prohibitor in a 2016 case, Voisine v. United States.  Federal law defines “misdemeanor crime of domestic violence” as a crime under state law “that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”  The question in Voisine was whether reckless (as opposed to knowing or intentional) assault on a spouse or family member met the “use of force” element and supported disarming the perpetrator.  The petitioners were two men convicted of domestic violence offenses and later charged with possessing firearms in violation of 922(g)(9), who both argued that their domestic-violence convictions were for state-law offenses that could have been committed with merely reckless intent and thus did not qualify under the federal prohibitor.

In a 6-2 decision (the case was argued just weeks after Justice Scalia passed away, and decided well before Justice Gorsuch’s confirmation), the Court affirmed the First Circuit’s determination that 922(g)(9) “encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.”  Justice Thomas, joined in part by Justice Sotomayor, dissented from the decision.  Justice Thomas would have held “that the ‘use of physical force’ requires intentional conduct.”  Because the Maine statute under which the petitioners were both initially convicted “criminaliz[ed] all reckless conduct, [it] capture[d] conduct such as recklessly injuring a passenger by texting while driving resulting in a crash”—conduct which Justices Thomas and Sotomayor found beyond the intended scope of 922(g)(9):

In sum, “use” requires the intent to employ the thing being used. And in law, that intent will be imputed when a person acts with practical certainty that he will actively employ that thing. Merely disregarding a risk that a harm will result, however, does not supply the requisite intent.

Because he found that Congress did not intend “to sweep in all reckless conduct” under the domestic-violence prohibitor, Justice Thomas would have held that the convictions at issue were insufficient (under a categorical approach) to support a prosecution under 922(g)(9) for unlawful possession of firearms.  Justice Thomas also wrote, in a section not joined by Justice Sotomayor, that, “[t]o be constitutional, . . . a law that broadly frustrates an individual’s right to keep and bear arms must target individuals who are beyond the scope of the ‘People’ protected by the Second Amendment,” and opined that there was no “other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.”

Much of the discussion in Voisine focused on a theoretical debate about mens rea and the common law definition of battery.  The justices posited several hypothetical scenarios, including:  (1) someone who throws a plate or bottle intending to hit the wall, but hits their spouse instead; (2) someone who texts while driving, causing an accident that injures their spouse; and (3) someone who slips while holding a door for their spouse, causing the door to hit and injure the spouse. 

The justices debated which of the above scenarios might be covered by 922(g)(9), with the majority stating that the “use” of physical force necessarily imposes volitional limits on the scope of the prohibitor while still applying to reckless offenses generally (so, for example, someone who loses their grip on a soapy dish and hits their spouse would not be covered, while the plate or bottle-thrower would be).  Justices Thomas and Sotomayor, on the other hand, would have found conduct such as the case of the text-messaging driver to not involve the use of force and thus be outside the scope of the prohibitor, even though such conduct is “reckless” at common law (“[T]he majority overlooks the critical distinction between conduct that is intended to cause harm and conduct that is not intended to cause harm.”).  Therefore, in their view, the government’s preferred reading of 922(g)(9) to include all reckless conduct was inconsistent with congressional intent.

One primary concern about the analysis in Voisine, which arose during oral argument in that case, is that it was decided amid an uncertain post-Heller legal backdrop.  After Bruen, the more fundamental question seems to be whether 922(g)(9) is sufficiently rooted in historical tradition given the lack of direct analogues throughout most of American history

Some portions of the oral argument transcript in Voisine, however, suggest how Justice Thomas, at least, might view the question and highlight issues with applying Bruen’s historical-analogical approach to misdemeanor-based disqualification generally.  Notably, Voisine marked Justice Thomas’ first question at oral argument in over 10 years.

JUSTICE THOMAS: Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?

. . .

MS. EISENSTEIN: . . . [T]he evidence that Congress relied on and ­­– and that the courts below that have addressed the Second Amendment concerns that Your Honor is highlighting have even gone into a more robust analysis of the –­­ the evidence that ties initial crimes of battery to future gun violence. That evidence is extremely strong. And Congress recognized that this was a recurring escalating offense.

. . .

So –­­ so I understand Your Honor’s concern that –­­ that this is a potential infringement of individual’s Second Amendment rights, but I believe that Congress has identified a compelling purpose and has found a reasonable means of achieving that purpose.

Two things stand out from this exchange.  First, it seems to indicate that Justice Thomas is suspicious of the entire enterprise of disarming misdemeanants—whether domestic violence offenders, violent misdemeanants, or otherwise.  But what of Bruen’s historical approach and the fact that a neat felony/misdemeanor dividing line did not exist at the time of the Founding?  As Will Tress describes, U.S. states gradually formulated the modern distinction in an iterative process over time that settled on the nature of punishment (fine vs. imprisonment) as the key distinguishing factor and converted certain crimes that were not considered felonies at common law into felonies (such as arson, for example) by making offenders subject to prison terms.  Justice Thomas’ question underscores one major problem with using Founding-era history to determine the scope of group prohibitors:  even the originalist will gravitate toward judicial rules, such as the felony-misdemeanor distinction, that were fundamentally different in 1791.  Although the terms “felony” and “misdemeanor” certainly existed at the time, their substantive meaning has changed significantly and it was not foreseen in the Founding Era that states would settle on the fine vs. imprisonment dividing line.  

Second, in response to Justice Thomas’ query about whether any other constitutional right can be suspended indefinitely upon a misdemeanor conviction under state law, Justice Kennedy offered one suggestion during oral argument:  the requirement that sex offenders “register before they can travel in interstate commerce” under SORNA.  An additional potential example is domestic violence restraining orders and the First Amendment’s freedom of association.  Civil restraining orders can often be issued upon “reasonable proof” of acts of abuse, and curtail the subject’s freedom to associate with certain individuals (in some cases permanently, after an additional hearing).  To be sure, there can be substantial overlap between the conduct that gives rise to a civil restraining order and conduct circumscribed by the criminal law.  But consider that cyberstalking—behavior where we might expect the empirical basis for disarming perpetrators to be quite strong—is in some instances not criminalized at all, or only criminalized under misdemeanor harassment laws.  Especially in thinking about the future of misdemeanor-based prohibitions, targeted cyberstalking is a far cry from texting while driving.




The Bipartisan Safer Communities Act: What Does the Law Do and How Might It be Impacted by Bruen?

In the aftermath of tragic mass shootings in Uvalde, Texas, and Buffalo, New York, a bipartisan committee introduced the “Bipartisan Safer Communities Act” (or BSCA) in the Senate on Tuesday, June 21. By week’s end, the bill had passed the Senate. The House of Representatives followed suit on Friday, and the bill was signed into law by President Biden on Saturday, June 25. The new law, which provides more than $13 billion in federal funding, represents the most significant federal gun regulation since the Federal Assault Weapons Ban of 1994, which expired in 2004 under a sunset provision.

Below are some highlights of the new law’s key provisions.

Funding for crisis intervention programs and red flag laws

The BSCA provides a $750 million incentive program, allotted over five years, to states that implement crisis intervention services. These can include mental health courts, drug courts, and extreme risk protection orders, also known as “red flag” laws. Red flag laws generally allow specified parties—primarily law enforcement officers and family members, but sometimes others—to petition courts to order the temporary removal of firearms from individuals who are judicially determined to present a risk of harm to themselves or others. Due to heightened due process concerns, the legislation seeks to guarantee certain protections to individuals who may be subject to red flag laws—such as “the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses,” as well as the right to bring counsel to the hearing. The BSCA does this by conditioning state use of federal funds on the state including such protections in its red flag law. States that choose not to implement red flag laws will not have their share of this funding reduced and may use it for other qualifying crisis intervention programs. As of this date, 19 states and the District of Columbia have enacted red flag laws.

Closing the “boyfriend loophole”

Federal law makes it a felony for an individual “convicted in any court of a misdemeanor crime of domestic violence” to transport, possess or receive a firearm (with a nexus to interstate commerce). 18 U.S.C. § 922(g)(9). It is also a federal crime to knowingly sell or provide a firearm or ammunition to someone convicted of a domestic violence offense. 18 U.S.C. § 922(d)(9). Under federal law as it existed before the BSCA, the definition of “misdemeanor crime of domestic violence” covered only domestic violence committed against a spouse, coparent, or cohabitating partner. The definition did not cover someone convicted of domestic violence against a boyfriend or girlfriend with whom that person did not share a residence or a child.

The new legislation attempts to close the “boyfriend loophole” by expanding the definition of “misdemeanor crime of domestic violence” to include domestic violence crimes committed against an individual with whom the perpetrator has a “continuing serious relationship of a romantic or intimate nature,” based on the length and nature of the relationship and frequency and type of interaction. Thus, the prohibition now applies to an individual convicted of a domestic violence offense against a romantic partner with whom they do not live or share a child, if the relationship is serious and intimate. However, first-time offenders convicted of non-spousal misdemeanor domestic violence will automatically have their gun rights restored after five years if they are not convicted of a violent offense within that time period. The law does not apply retroactively, meaning that only those convicted of domestic violence after the law takes effect will be impacted.

Expanded background checks for gun purchasers between 18 and 21 years old

Federal law requires that all those who purchase guns from licensed dealers undergo a background check through the National Instant Criminal Background Check System, or NICS.  The BSCA requires, for any potential purchaser under 21, that NICS “immediately contact” state and local authorities to determine whether the individual has juvenile criminal or mental health records that would disqualify that person from purchasing a gun. If the initial inquiry finds anything questionable, the FBI will have 7 business days (in addition to the 3 days provided for the initial background check) to further investigate whether the state or local records are disqualifying. After 10 days, the transfer is permitted if there is no final decision from NICS. 

Federal authorities are only permitted to access mental health history records starting from the time the potential buyer turned 16. This enhanced background-check requirement for younger gun purchasers will expire automatically after 10 years if not renewed.

Funding for mental health and school security

The law provides funding for mental health and school safety programs under the STOP School Violence Act, which implements school safety programs, funds school resource officers, and seeks to enhance security in schools. The funds can also be used to expand access to mental health services, such as by making it easier for Medicaid recipients to use telehealth services and work with “community-based mental health and substance use disorder treatment providers and organizations,” as well as by increasing access to mental health services and supporting community violence intervention and prevention initiatives.

Licensed dealers and gun trafficking

The law expands who must register as a “Federally Licensed Firearm Dealer” by changing the definition of “engaged in the business” of firearms to include anyone who sells guns to “predominantly earn a profit”—which means predominantly for pecuniary gain, rather than for personal collection. Post-BSCA, individuals who sell firearms predominantly for pecuniary gain (not only dedicated firearms stores and dealers) must run background checks on potential buyers and keep records of their sales.

Additionally, the BSCA creates new federal criminal statutes banning “straw purchases” and gun trafficking, with harsh penalties. Straw purchasers are those who buy guns on behalf of another individual, knowing that person is disqualified from possessing guns under federal law. Gun trafficking involves otherwise facilitating the transfer of a gun to someone whom the transferor knows is disqualified from possessing the gun.

The million-dollar question: How will the BSCA, and state laws it is intended to encourage, fare under Bruen’s “text, history, and tradition” test?

The new law was signed just two days after the Supreme Court’s first major Second Amendment decision in 12 years, New York State Rifle & Pistol Association v. Bruen, 597 U. S. ____ (2022). In Bruen, the Supreme Court struck down New York’s requirement that concealed-carry permit applicants show “proper cause” and set forth a history-only test for future Second Amendment challenges. Will the BSCA, and state laws that might be introduced under its funding incentives, pass constitutional muster after Bruen?

It’s difficult to predict how lower courts will apply Bruen’s test in practice and what impact this will have on the BSCA.  For example, there are no directly-analogous 18th or early 19th century prohibitions on gun ownership by domestic abusers or comprehensive background checks on gun purchasers.  Under a narrow interpretation of Bruen’s historical-analogue test, these laws seem destined to fail.  However, it’s possible that courts may uphold these laws under one of two approaches.  First—as two of the Bruen concurrences emphasize—laws prohibiting gun possession by certain high-risk groups and “imposing conditions and qualifications on the commercial sale of arms” are still presumptively constitutional (as stated in Heller and McDonald) because they are not covered by the Second Amendment’s plain text and don’t even make it to the historical-analogue step.  Second, it could be that historical laws motivated by a desire to keep guns out of the hands of those viewed as most likely to engage in dangerous behavior are sufficiently analogous to these modern regulations, even if historical regulations were aimed at different groups or used different legislative means.




Litigation Highlight: Juzumas and Second Amendment Challenges to NY’s Longarms Surrender Requirement

Last month, in Juzumas v. Nassau County, a Second Circuit panel ruled per curiam that New York’s statute governing licenses for firearm possession mandated that the defendant surrender his longarms once his pistol license was revoked. However, because the County policy purporting to implement this policy was unclear, the Court vacated the district court’s ruling and remanded the issue of whether and when the defendant can again possess longarms, and whether the County’s policy complies with the Second Amendment. The panel cited the County’s inability to “provide a complete description of when it will be lawful for Juzumas to acquire longarms” and mentioned that the County should be able to offer up these facts and their application “presumably on remand.” (The plaintiff did not challenge NY’s state law, but only the County policy.)  

Juzumas received a pistol license from Nassau County in 2003. Five years later, he was arrested for conspiring to import controlled substances. Under the County’s law, the officer who arrested him confiscated his pistol license and pistols. In 2012, Juzumas pleaded guilty to a misdemeanor conspiracy to defraud the United States connected to his 2008 arrest. Several years later, the County sent him a letter stating his pistol license was revoked. The letter provided three bases for the license revocation: arrest history, conviction, and lack of good moral character.

After receiving the letter, Juzumas gave his longarms to various people in his life. He tried to appeal his pistol license revocation but was unsuccessful.

Juzumas later sued the County in federal court, asserting that the County’s requirement that he surrender possession and ownership of his longarms after his pistol license was revoked is unconstitutional as applied to him. Because he did not challenge the state law, he claimed that the County’s policy interprets the NY Penal Law broader than the state law itself.

The trial court granted summary judgment in favor of Nassau County, holding that the County acted to enforce a mandatory provision of state law and so was not a proper defendant under Vives v. City of New York (2d Cir. 2008). In that case, the Second Circuit  ruled that a municipality cannot be held liable for its enforcement of state law so long as it adopted a conscious policy of enforcing the specific law in question. Further, the District Court granted Nassau County’s motion for summary judgment on Juzuma’s First, Second, and Fourth Amendment Claims, related Monell claims (claims commonly included in lawsuits against police officers to get at county funds), and the § 1983 claim. However, it concluded that Juzumas did have a Fourteenth Amendment due process claim because he should have received a hearing before being permanently deprived of his long guns. Juzumas appealed the grant of summary judgment on the Second and Fourth Amendment claims. As mentioned above, the Second Circuit affirmed the district court in part but remanded for the district court to address part of Juzumas’s Second Amendment claim, and its related Monell claim.

The specific New York law at issue was NY Penal Law § 400.00(1) which governs a citizen’s eligibility to own a firearm in the state. In New York, it is necessary to have a license in order to possess a firearm. The section provides that: “no license shall be issued or renewed except for an applicant” who meets various listed requirements. Relevant here, some of the requirements are that the applicant is “of good moral character,” and that there is “no good cause” to deny the applicant the license. Under the state law, local counties are charged with licensing responsibility within their domains. Of note, there is no licensing scheme for longarms. However, the NY Law does touch on long gun possession by someone who has had their pistol license revoked, and some of those provisions are at dispute in the case.

There are several ways for someone’s pistol license to be revoked in the state. Some are mentioned in § 400.00(11)(a), providing that if a licensee is convicted of a felony or “serious offense,” and that if the holder “at any time becom[es] ineligible to obtain a license under this section,” that fact “shall operate as a revocation of the license.” Within § 400.00(11), subsection (c) states that whenever someone’s license is suspended under subsection (a) or (b), then the person “shall surrender such license to the appropriate licensing official and any and all firearms, rifles, or shotguns owned or possessed by such person shall be surrendered to an appropriate law enforcement agency.” This subsection, the Court writes, connects longarm possession and pistol licenses.

Nassau County adopted a policy that implemented the state’s framework. State law requires surrender of long guns upon a pistol license revocation, but is silent on the acquisition of new long arms after revocation. The County’s written policy does not state whether someone can possess long guns after revocation before being issued another pistol license. Even absent a clear written policy, Juzumas claimed that the County made it so that someone who has had their pistol license revoked can only possess long arms again after applying for, and being issued, another pistol license.

Juzumas claimed that the County’s policy goes beyond enforcing state law. He argued that state law only requires the surrender of long guns when a pistol license has been revoked based on the specific factors in § 400.00(11) and not when based on other reasons contained in other subsections. Because he claimed the law goes further than the state requires, Juzumas argued that it violated his Second Amendment right to possess long guns. He also challenged the County’s position that despite the absence of a state licensing regime for longarms, he is prohibited from possessing a longarm unless he gets a pistol license.

The Court held that Juzumas misread NY Penal Law § 400.00. Looking to the plain meaning of the text and legislative history, the Court read the entire statute together, noting that “under this section” in § 400.00(11)(a) refers to all of § 400.00. Reasons someone might lose or be ineligible for a pistol license appear throughout § 400.00. Specifically, language added in 2013 by the New York State Secure Ammunition and Firearms Enforcement (SAFE) Act provided that someone can be ineligible to obtain a license for reasons not enumerated in the (11)(a) subsection. When explaining this, the Court commented in a footnote that NY courts frequently uphold pistol license revocations under § 400.00(11) without referencing any enumerated reason.

Further, the Court held that the County was reasonably applying state law. Penal Law § 400.00(11)(c) mandates that guns “shall be removed and declared a nuisance” if they are not surrendered after a license revocation. The Court explained that the language “shall” within a statute invokes something mandatory. Therefore, the Court held that Juzumas’s actual issue would be with the New York state law, and not the County. Because Juzumas had not challenged the constitutionality of the state law, the Court ended its discussion of this issue here.

Similarly, the Court also affirmed the dismissal of Juzumas’s Fourth Amendment claim, explaining that the County’s policy is merely an enforcement of state law. The County is therefore not the proper defendant.

However, the Court held that the County’s policy described in a 2015 letter does go further than state law requires. The policy described does not allow Juzumas to buy longarms until he is issued a new pistol license. But Juzumas claimed that the state law only provides for the surrender of longarms that are in his possession at the time of the license revocation and not a prohibition on the acquisition of new ones. The district court didn’t address this challenge and just determined that it was unclear whether Juzumas could possess longarms again under Nassau County’s policy.

The Court noted that the County never offered a clear declaration on its policy of longarm possession after the revocation of a pistol license. The County had offered various explanations of the policy. In its 2015 letter, it stated that Juzumas could not possess a longarm until his license was reinstated. Then at deposition, a Nassau County Police Department (NCPD) lieutenant testified “variably” to whether this was the policy. A department policy provided that if no legal impediment exists, then there does not appear to be a prohibition on someone acquiring new longarms even if his pistol license remains revoked. To add even more confusion, the County declared at oral argument that they no longer use the letter that Juzumas received in 2015, and that someone whose longarms were surrendered when his license was revoked can go out and buy other longarms after.

The Court remanded Juzumas’s Second Amendment challenge because of the lack of explicit County law governing whether Juzumas can possess a longarm after his pistol license was revoked.




Von Lossberg v. State: State Liability for Gun Suicides & the Background Check System

The Idaho Supreme Court recently held that the state could be held liable in a wrongful death action for negligently failing to add a name to the database used in gun purchase background checks.  In Von Lossberg v. State, the parents of a young man who committed suicide with a gun sued the state, the state police, and the private vendors who provided the technology involved to the state.  The victim had been the subject of an involuntary commitment for mental illness in late 2016, and the state hospital where he received treatment had discharged him at the end of December that year.  Five weeks later, he purchased a semiautomatic pistol from a pawn shop and used it to commit suicide.  

The victim should not have been able to pass a background check to purchase the gun, because he was a disqualified person under 18. U.S.C. § 922(g)(4). On his background check form, the victim had falsely (or incorrectly?) answered the question about whether he had ever been involuntarily hospitalized for mental health treatment – note that this is a “Y/N” checkbox on the form.  Even so, if his name had been in the database, as it should have been, he would not have been able to pass the background check and consummate that purchase.  Unfortunately, due to some systemic failures in the State’s case management system, the various state agencies involved had not reported the victim’s name and involuntary hospitalization status to the National Instant Criminal Background System (the “NICS”), which they were supposed to do under state law.  For those interested in the mechanics of how the background check system works on the input side, the following explanation from the court is informative:

…[W]hen the State of Idaho processes an order of commitment, it must send the order to a message server known as the “Message Switch.” From there, the orders are processed and delivered to the Idaho State Police and then the NICS. The State of Idaho contracts with Computer Project of Illinois, Inc. (“CPI”), to process and deliver these orders from the Message Switch to the State, the ISP, and the NICS. However, the Von Lossbergs allege that CPI’s system contained a known failure that would not recognize “the naming conventions and document format used by the State of Idaho and Tyler [Technologies] for Bryan’s Order of Commitment.” Consequently, Bryan’s order was never processed or transferred to the NICS database.

All the defendants in the case moved for dismissal of the claim.  The state and the state police claimed statutory immunity from tort actions under the Brady Handgun Violence Prevention Act, 18 U.S.C. § 922(t)(6). The district court agreed and dismissed the case, and the victim’s parents appealed.

The Idaho Supreme Court reversed and remanded the case for further proceedings.  Carefully parsing the words of the Brady Act, the Court concluded that the immunity applied only to local governments and the employees of federal, state, and local government – but not to a state or state agencies themselves.  Side note: the state had not invoked sovereign immunity as a defense, but only statutory immunity under the Brady Act, and the Court explains the only question on appeal is Brady Act immunity, not sovereign immunity (it suggests it is unclear whether the state at this point has waived sovereign immunity by not raising it initially).  The court relied not only on the statute itself, but also a pair of 2019 cases from other courts: Holcombe v. United States and Sanders v. United States, which held that the Brady Act immunity provisions do not apply to the federal government itself.  Included in the Court’s reasoning is a reference to the traditional canon of construction expressio unius est exclusion alterius (“the expression or inclusion of one thing implies the exclusion of others”). 

As Ian Ayers and Fred Vars have argued in their book Weapon of Choice (and also in a series of articles and presentations), background check denials for suicidal individuals can save thousands of lives – many suicidal urges are temporary, so if the person cannot buy a gun the day they feel that suicidal impulse, there is a reasonable chance they never will.  If Mr. Von Lossberg had been turned away from the pawn shop and had to search for and negotiate with a private seller in order to acquire a gun, the hassle and time involved in doing so might very well have been too daunting for someone suffering from severe mental illness, who had only recently been discharged from a mental hospital. If Mr. Von Lossberg had tried to commit suicide by some other means, statistically he was very likely to have survived, whereas suicide attempts with guns are nearly always fatal (Ayers and Vars cite empirical studies demonstrating this inverse relationship).

From a policy standpoint, I think this case, along with Holcombe and Sanders, are positive steps.  The background check system is only as effective as the comprehensiveness or completeness of its database, and for decades, various government entities have been negligently (or intentionally) slow to cooperate and contribute names, and at other times sloppy about it – meaning individuals who are not supposed to have guns (according to statute) are able to pass background checks and acquire them, often with fatal consequences. The threat of liability should help incentivize not only the State of Idaho, but other states and federal agencies, to step up their efforts to submit names to the NICS system that are supposed to be in the database.




Eleventh Circuit Upholds Federal Firearm Prohibitions For Aliens Unlawfully Present

On May 23, in United States v. Jimenez-Shilon, the 11th Circuit rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(5)(A), which prohibits firearm use or possession by any “alien” who is “illegally or unlawfully in the United States.”  The holding itself is in some ways unremarkable – it joins every other federal circuit court that has considered the issue (now eight in all, according to the majority) in upholding § 922(g)(5) against challenges since Heller.  There are, however, several noteworthy peculiarities about the opinion, not least of which is the lengthy, heterodox self-concurrence by Judge Newsom, who also wrote the majority opinion for the panel.

Quick factual and procedural background: Ignacio Jimenez-Shilon was a foreign national who had lived in the United States, without a valid visa or residency permit, for more than two decades.  In 2019, he was arrested for brandishing a firearm in a public place – but the indictment charged him with illegal possession of a firearm by a disqualified person under § 922(g)(5), rather than with assault or some other crime related to brandishing. He did not dispute his guilt (most of the incident was caught on surveillance video), but he requested an evidentiary hearing to establish his connections to the United States.  The court denied this request, and proceeded to sentencing.

This brings us to this appeal and decision.  Instead of applying some type of intermediate scrutiny for the Second Amendment claim, as is now the norm in federal courts, Judge Newsom relies entirely on a “text and history” approach.  The “text” part of this analysis looks at the Second Amendment itself, and in this case, just one word: “people.”  The opinion then delves into the question of whether noncitizens or foreigners fell within the Founding era’s public meaning of “the people,” at least when it occurs in the Constitution.  Quoting a wide array of Founding-era documents and contemporary scholarship, the opinion concludes that “the people” included many noncitizens in most sections of the Constitution, but not when it is used in the Second Amendment, because the Amendment “codified” pre-existing common law rights, which excluded most noncitizens.  In other words, according to Judge Newsom, the right to bear arms never applied to noncitizen immigrants like Mr. Jimenez-Shilon, except where they had taken steps to affirm (legally) their association with and support for the new Republic.  On that note, the majority concludes that evidence Mr. Jimenez wanted to present at his hearing – showing personal connections with this country, including a child born here – would not have offset his failure to secure legal permanent residency.

The opinion describes itself as “originalist,” but it is worth noting that it is a 1789-centered “public meaning” originalism, rather than the 1868-centered originalism that has been appearing in the amici briefs and legal arguments of many gun-rights advocacy groups.  A recent trend among gun rights advocates has been to shift, or at least expand, the timeframe for the original meaning of the Second Amendment so that it includes the Fourteenth Amendment, which incorporated previously existing Constitutional rights against the states.  This certainly makes sense when the legal challenge is brought against a state law – incorporation is a necessary step in that case. The current case is about a federal law, so incorporation is not an issue – perhaps that explains why the majority never mentions what the Second Amendment meant when it was channeled through the Fourteenth Amendment.  But some of the “Second Founding” originalists would say there is another reason, besides restricting state powers, to focus on 1868 rather than 1789-92 – it was a time when the Union reinvented itself and reinterpreted its understanding of many of the rights in the Constitution, even as they pertain to the federal government.

At the same time, Reconstruction-era legislative history also provides more material supporting the idea that personal self-defense is a part of the right to bear arms – and most of the litigation over gun rights today is focused on the right to arm oneself for self-defense, rather than a right to serve in the militia or to take up arms against a government that turns despotic.  “Public meaning” originalism discerns original meaning by focusing on the presumed audience of the communication, rather than the subjective intent of the author or speaker; an older form of originalism would have focused on the views or intentions of the Framers themselves.  In any case, this opinion is significant not only for its “text-and-history” approach (replacing the more widely used intermediate scrutiny), but for doubling down on Founding-era originalism.    

One interesting feature of the opinion is that it drops the “tradition” from the “text-history-tradition” (THT) rubric championed by many gun rights advocates (I have discussed THT previously here, and other authors have written about it for this blog here, here, here, and here). The majority opinion starts with “text” (“people” in the 2A), but mostly focuses on “history” in the sense of Founding-era indicia of who was included in “the people” when in the context of gun rights.  Judge Newsom acknowledges Jimenez-Shilon would have been part of “the people” in the broadest sense in which the Framers used the term but says the Second Amendment codified a common-law right to bear arms that would have excluded individuals like Jimenez-Shilon from its coverage.  Missing from the majority opinion is any reference to “tradition” – the final “T” of the THT rubric.

This omission becomes an express repudiation in footnote 2 of Judge Newsom’s self-concurrence:

 . . .[I]t has never been clear to me what work “tradition” is supposed to be doing in the tripartite “text, history, and tradition” formulation.  The duly adopted and ratified text of the Second Amendment, as originally (and thus historically) understood, governs the interpretive inquiry.  To the extent that “tradition” is meant to stand in for the original (i.e., historical) public meaning of the words on the page, it is duplicative.  And to the extent that it is meant to expand the inquiry beyond the original public meaning— say, to encompass latter-day-but-still-kind-of-old-ish understandings—it misdirects the inquiry.

In other words, Judge Newsom discards the “tradition” part of THT, because it is either redundant or anti-originalist.  The self-concurrence also frames text-history analysis as being the same thing as the first step in two-tiered intermediate scrutiny: “I’m on board with step one, which calls for an originalist inquiry of the sort that (I hope) characterizes the majority opinion in this case.” He then proceeds to argue that the next step of intermediate scrutiny is both an inappropriate judicial invention, and a rule too indeterminate (“slippery”) to safeguard an important right. He then argues, for three pages, that the Eleventh Circuit has never actually adopted a means-end scrutiny approach for the Second Amendment in a published opinion.

Presumably, the “tradition” part of THT would refer to entrenched case precedent and longstanding statutes from the time after the Second Amendment made its way into our Constitution. These rules and rulings have stood the test of time, and they must have reflected former generations’ assumptions about the meaning of the Second Amendment itself.  Justice Scalia’s carve-out for “longstanding prohibitions” in Heller probably illustrates the idea behind the “tradition” part of THT; Judge Newsom’s opinion suggests a willingness to reassess and possibly discard “longstanding prohibitions” in light of the common-law rules that the Second Amendment “codified.”

The last three pages of the self-concurrence are more adventuresome.  Judge Newsom moves on to question (attack, really) all balancing tests or means-end scrutiny for constitutional rights, with a focus on Free Speech cases – this is the part of Jimenez-Shilon likely to generate the most academic buzz, as he sets forth the case for a new originalist approach to Free Speech.  The case itself does not involve any First Amendment issues, but Judge Newsom prefaces this section by acknowledging it is “more a bookmark for future reflection and inquiry than anything else.”  It is probably not a coincidence that the Eleventh Circuit published this opinion on the same day as Judge Newsom’s opinion in the landmark First Amendment case NetChoice v. Attorney General of FloridaThe NetChoice opinion follows traditional strict and intermediate scrutiny analysis – the very approach Judge Newsom debunks in his self-concurrence in Jimenez-Shilon.  My hunch is that he played it safe in NetChoice because the case is likely to go to the Supreme Court at some point, and it is more likely that other Circuits will follow his lead in the nearly identical cases pending there.  I think he intended Jimenez-Shilon, or at least his concurrence there, to be a companion case to NetChoice, where he explains what he really thinks about Free Speech.  And, instead of nascent Second Amendment jurisprudence borrowing concepts from other areas of Constitutional-civil rights law (he calls 2A law “virgin territory”), Judge Newsom hopes to use a Second Amendment case to break new ground in Free Speech law and other areas.

One irony of the case is his rhetorical reference to “freedom” in the last paragraph (he calls balancing tests “freedom-diluting”). This conceptualizes “freedom” merely as the absence of government interference or control; it ignores the fact that citizens often experience oppression or loss of autonomy at the hands of one another.  When the government protects its citizens from harm by their peers – bullying, threats, assaults, arson, defrauding, libel, slander, and so on – it must necessarily interfere with the “freedom” of the would-be perpetrators.  This brings us back to how this case started: Mr. Jimenez-Shilon, while intoxicated at a gas station taco stand in Tampa, “pulled a pistol out of his waistband and placed it on a table near another customer,” (with a live round in the chamber) and “then pointed it around the seating area and in the direction of other diners.” (from the Government’s briefs here and here). Rather than charging him with assault or some other crime related to the misuse of a firearm, the government charged him with illegal possession of the gun – a common occurrence, based on my research. (The government may find illegal possession charges easier to prove, or perhaps prosecutors prefer whatever charges would carry the longest sentence). The nature of the charges allowed Mr. Jimenez to reframe the case, and his appeal, around his right to bear arms – impliedly for self-defense purposes under Heller. And the Second Amendment framing of the case allowed the Court of Appeals to treat it as a potential infringement of the right to arm oneself for self-defense and the best jurisprudential approach to protect that “freedom.”

Stepping back from this opinion for a moment, regardless of who could own guns in the pre-1789 common-law era, there are modern policy justifications for § 922(g)(5) – the same justifications I have offered as support for felon-in-possession laws. Interpersonal gun violence disproportionately occurs in vulnerable, poor, and underserved urban neighborhoods and communities.  High crime rates mean many guns stolen from unoccupied cars and dwellings, which in turn resupply black markets for gun that are hard to trace to those who use them in crimes.  While high-crime areas might mean more occasions to engage in lawful self-defense, high population density also makes reckless or negligent behavior by gun owners – like that displayed by Mr. Jimenez-Shilon – more likely to result in injuries and fatalities.

Apart from the pros and cons of §922(g)(5), I have two closing observations about this opinion itself.  First, it highlights a growing division between two ideological groups formerly found together under the big tent of conservative-leaning jurisprudence – constitutional originalists and the law-and-economics crowd.  Judge Newsom makes a compelling case that balancing tests cannot coexist with originalism, but Law & Econ is all about weighing costs and burdens.  Newsom’s strict originalism has no place for Coase, Posner, and Becker.

The second observation is that the language and logic of the opinion would support some types of gun control not currently on the books – such as conditioning gun ownership on taking a loyalty oath to the state and federal government.  The opinion even quotes Adam Winkler for the point that colonial governments limited gun ownership to those who would affirm allegiance to the Crown and/or the local authorities.  While I agree with the Founding-era Quakers that loyalty oaths are abominable, I wondered after reading this opinion if these judges would, hypothetically, uphold a law that required loyalty oaths for gun owners, or even one that disqualified those who refuse to stand for the national anthem or the pledge of allegiance from obtaining a gun permit.  The strict originalist approach to the Second Amendment taken in this opinion could support some gun restrictions as easily as it could invalidate others – including gun restrictions that would not have survived scrutiny under more conventional jurisprudence.




Shinn, Jimenez-Shilon, and the Hierarchy of Rights  

Earlier this week, in United States v. Jimenez-Shilon, the Eleventh Circuit rejected a Second Amendment challenge to the federal law barring undocumented immigrants from possessing firearms. Dru Stevenson will be guest posting about the case on this blog. But I want to highlight a few aspects of Judge Newsom’s majority and separate concurring opinions—and compare and contrast it with another decision released the same day.

The question in Jimenez-Shilon was whether the Second Amendment protects undocumented immigrants. The majority said no. I’ve got qualms with some of the majority’s reasoning, but—as the court says—its conclusion upholding the federal bar on firearm possession for undocumented immigrants is in line with the unanimous opinion of the federal courts of appeals. (Immigration expert Deep Gulasekaram has a good paper criticizing this line of precedent.)

What’s more noteworthy to me about the case is Judge Newsom’s concurrence calling for adoption of the test of text, history, and tradition to evaluate Second Amendment challenges (though he’d lop off tradition), instead of the two-part framework that has thus far been adopted (again unanimously) by the federal courts of appeals. In Judge Newsom’s view, the second part of the standard framework, which calls for application of means-end scrutiny, is “problematic—not only because it elevates the normative views of ‘we the judges’ over ‘We the People’ through an ill-defined balancing test, but also because it stands in significant tension with Supreme Court precedent.” Asking conventional means-end scrutiny questions, he says, is “an amorphous inquiry” that “risks unelected and unaccountable judges upholding or invalidating gun-control laws at will—without respect to the original public meaning of the Second Amendment.” Judge Newsom goes on to say that courts ought to rethink scrutiny analysis in all constitutional cases. “If we, as judges, conclude—as I’ve said we should—that Second Amendment rights shouldn’t be casually balanced away by reference to manipulable means-ends balancing tests, we might need to start asking the bigger question: On what basis can we do exactly that when dealing with other, equally fundamental rights?”

Compare that suggestion, which calls into question an enormous range of constitutional doctrine, with another case decided the same day: Justice Thomas’s majority for the Supreme Court in Shinn v. Martinez Ramirez. The two decisions share remarkable similarities and equally remarkable differences. Both decisions foreclose rights claims by members of marginalized groups (prisoners in Shinn and undocumented immigrants in Jimenez-Shilon), groups for whom the political process is often not an adequate alternative to courts. Both majority decisions are written by conservative judges who are wedded to ideals of original public meaning and who claim fidelity to the Constitution’s protection for individual rights against government overreach. Yet both are deeply deferential to the government’s exercise of its most awesome power over individual liberty—imprisonment in Jimenez-Shilon, and the imposition of a death sentence in Shinn. (Shinn is a habeas case, and as federal courts scholar Leah Litman observes, “habeas corpus is known as the ‘Great Writ’ because it protects individual liberty and checks government power”—though she also complicates that picture. But it is noteworthy that the Court’s most libertarian justices often have the most restrictive views of habeas).

The cases also have some fundamental differences. Judge Newsom’s separate concurrence in Jimenez-Shilon contains a rousing encomium to fundamental constitutional rights, and to the judiciary’s role in protecting those rights at all costs, because (on his view) the founders already conducted any interest balancing when they codified the right in the Constitution in the first place.  No government interest can be so compelling or important to overcome the right assertion. To put it mildly, that’s not the view Justice Thomas, writing for the Shinn majority, takes about the constitutional right at issue there.

Shinn is a habeas corpus challenge that presents as a complicated case about procedural default rules, statutory provisions governing post-conviction relief, cause, prejudice and imputed errors, and issues of federalism and comity. But, at its core, the case is about whether the Sixth Amendment’s guarantee of competent attorneys for those accused of crimes will be enforced by federal courts—and about the concomitant constitutional right to the Great Writ of habeas corpus protected in the Constitution’s Suspension Clause. As habeas expert Lee Kovarsky notes, because of the nature of that type of constitutional claim, “we basically rely on post-conviction proceedings to judicially enforce the Sixth Amendment right to counsel.” Shinn guts that—and in many ways does so based on the costs that it would take to enforce such a right.

In his opinion, Justice Thomas writes at length about the interests on the other side of the rights-ledger, such as the need “[t]o respect our system of dual sovereignty.” He says that federal habeas review “intrudes on state sovereignty” to an almost unparalleled degree, imposing two special “costs” that the he emphasizes for the 6-3 majority: (1) “a federal order to retry or release a state prisoner overrides the State’s sovereign power to enforce ‘societal norms through criminal law’”; and (2) it delays final resolution and “undermines the States’ investment in their criminal trials.” He further underscores the significance of the state interests at stake: “the powerful and legitimate interest in punishing the guilty, an interest shared by the State and the victims of crime alike”; the “exhaustion and procedural default” rules that “promote federal-state comity,” including how the latter “protects against ‘the significant harm to the States that results from the failure of federal courts to respect’ state procedural rules.” According to Justice Thomas, federal court “intervention is also an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them.”

It’s hard to imagine the same kind of rhetoric being used to support, say, a state’s “powerful and legitimate interest” in preserving public safety with gun regulation. If anything, Shinn makes it seems as if the Sixth Amendment is the true “Rodney Dangerfield of the Bill of Rights,” not—as Judge Willett would have us believe—gun rights, which are amply protected by the political process and exponentially expanding in state legislatures the country over. Experts commenting on Shinn have remarked how it means that now “you have a Sixth Amendment right to effective assistance of counsel that is good for a glass of water at Denny’s. Because there’s no meaningful site to enforce it, it’s not worth shit.” The Court’s decision, proclaimed another expert, will “be disastrous for anyone relying on their constitutional right to effective counsel.”

These differences between Jimenez-Shilon and Shinn are stark, coming as they do on the same day by jurists who are ideologically and (otherwise) methodologically aligned. In his opinion, Judge Newsom expressly advocates for ignoring the costs of vindicating constitutional rights. Justice Thomas, on the other hand, expressly catalogues, and underscores, the costs that vindicating a constitutional right can have as reason not to vindicate it. It’s hard to avoid the impression that some conservative judges just like the Second Amendment better than any constitutional right that inures to the benefit of certain criminal defendants.




Time To Live: Safer Gun Safes and Smarter Smart Guns

Katrina Brees Tells Her Mother’s Story

I know my mom didn’t shoot herself because she wanted to be dead. She did it because she was in unbearable pain and in the throes of a psychiatric episode. My mom, Donna Nathan, loved her life. She loved to dance to Cajun music and The Beatles. She’d grab the sides of her skirt and wave it back and forth while she sang the lyrics, stepping to the beat and tossing her red hair. She loved her partner, Pat, and their four cats, kids, and grandbabies. She lived in the home of her dreams. She had access to great health care and had successfully battled many medical conditions. For decades, her bipolar disorder had been relatively well managed with a small amount of medication and she led a very full life.

Until one day her medication stopped working. Her doctor prescribed a new drug that produced a series of extreme side effects including insomnia, tremors, panic attacks and eventually suicidality. My mom became suicidal, so she did everything she had been trained to do to protect herself from suicide.  She voluntarily committed herself into an inpatient psychiatric facility. She would commit herself three times in the 3 months before her death. She gave up all her freedoms and comforts in order to save herself from suicide.

In the last weeks before she died, our family encouraged her to go back into inpatient care where she could be protected, but she said she was too frail to go back to “jail.” Pat quit his job and watched over her full time from home instead. Her friends and family committed themselves to daily contact with her with streams of encouraging texts and calls. Between appointments, Donna was in daily e-mail contact with her psychiatrist.

Her last search on her phone was for “gun stores” and then she let her phone provide her with driving directions to the closest one, just a couple miles away. She had said she was going to the mall to buy underwear that morning. It was only a moment after she left that Pat felt deeply concerned. He called her repeatedly and got no answer and then called the police to attempt to intervene on her suicide attempt. She had never even held a gun before, but in a short time she had her first gun. A .38 caliber with a box of rose gold bullets with pink plastic centers that promote breast cancer awareness. She drove to a special spot at the park near her house and wrote a note that said “Pat, I’m sorry. I love you.” And then she shot herself and died.

Slowing Down Gun Purchases Saves Lives

Donna Nathan’s story is all too common.

Firearms are the most common means of suicide. In 2020, firearms were used in 53% of suicides. With 24,292 gun suicide victims annually, this is a leading cause of death for Americans. That’s more than 66 people each day. Many suicide attempts are impulsive, and the vast majority (90%) of survivors do not keep trying until they succeed. But people who choose firearms as their suicide method very rarely survive: about 85% of gun suicide attempts end in death.

It is a common misconception that a person who decides to attempt suicide will simply switch to another method if access to their first-choice method is denied. That’s simply not true. With respect to delaying access to firearms in particular, the best evidence comes from analysis of waiting periods for purchasing handguns: waiting periods significantly reduce gun suicide with no increase in non-gun suicides. Even if some substitution of methods does occur, the other common methods of suicide are not nearly as lethal as a firearm. For example, the estimated fatality rate of a suicide attempt using drugs is less than 5%.

Donna Nathan should have been able to have suspended her own ability to buy a gun. 

“Donna’s Law” (also known as the “Voluntary Do-Not-Sell List”) gives people the option to voluntarily and confidentially put their own names into the federal background check system to prevent impulsive gun purchase for a suicide attempt. Donna’s Law would be available to anyone, no questions asked. But it would be particularly appropriate for someone like Donna Nathan who voluntarily committed herself for inpatient psychiatric treatment. Had her commitment been involuntary, she would have been automatically added to the background check system. We already know that people recently hospitalized for mental health problems are at greatly elevated risk of suicide. Three states so far have adopted Donna’s Law. Our goal is 50 states and the federal government. Efforts are on-going.

Gun Owners Also Have Options To Prevent Suicide

Delaying access to firearms in times of crisis can be a life-saving strategy not just for first-time gun buyers like Donna Nathan, but also for gun owners. A recent California study found that a slight majority of gun suicide deaths involved guns owned for more than one year. A remarkable Public Service Announcement in Utah (where suicides make up 84% of all firearm deaths) recommends that gun owners during a depressive episode let a friend or family member “babysit” their guns. There are efforts in many states to facilitate and build on that strategy—including online maps of police stations and gun dealers that are available to babysit firearms.

But some gun owners, even if they recognize that their suicide risk is temporarily elevated, will not take advantage of the babysitting option. They may not want to reveal their struggles to friends or family. They may not have the time, energy, or means to locate other storage facilities and to drive there and back. They may not want to let go of their firearms or may not trust someone else to return the firearms later.

Technology could offer these gun owners alternatives. One such option already exists. More and more states are adopting laws requiring that firearms be safely stored. A gun safe is a good option, but not all safes are created equal. Gun owners, especially those who sometimes struggle with thoughts of suicide, should consider a gun safe with an optional time-delay function. Such a safe provides quick access during normal times, but can be programmed during crises to open only after a set time delay. On currently available time-delay safes, the delay can be anywhere from a minute to a week. The delay option could be turned off after the crisis passes. We call this a “Donna’s Safe.” Donna’s Safe is another in a long line of hand-tying techniques. One could imagine a similar idea of locking food away so that you could not snack at inappropriate times and indeed such devices already exist.

An optional time-delay feature could similarly be added to so-called “smart guns,” which have just recently entered the market. This would provide an even easier way for a gun owner to protect against impulsive self-harm. Smart guns are currently designed to be operable only by the owner—in other words, a smart gun restricts the who. A slightly redesigned smart gun with a time-delay option—aka, “Donna’s Smart Gun”—could restrict the when. Timing, with many suicides, is everything.

Gun rights organizations might object that slowing down access to firearms will cost the lives of gun owners who were therefore unable to use their firearms when they needed them for self-defense. These technologies could be designed with backdoors to unlock the gun if a trusted friend or healthcare professional chosen by the gunowner provided a separate code. It would be truly ironic, however, for gun rights organizations that claim to promote liberty to deprive gun owners from deciding for themselves that, in a period of crisis, the risk of self-harm outweighs the risk of attack. These technologies give people new ways to protect themselves. 

*          *          *

The divisive gun debate usually centers on government action or inaction. Largely missing is a recognition that private decisions, without any government mandates, may have even more power to reduce gun deaths. Donna’s Law requires a new law, but it’s a law that expands choice by giving individuals a new, voluntary way to protect themselves. Current gun owners can also delay their own access to firearms, and thereby reduce their risk of suicide, by purchasing time-delay safes already on the market and by urging smart gun manufacturers to offer a time-delay function.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]




Ninth Circuit Strikes Down CA’s Law Restricting Young Adult’s Ability To Purchase Rifles

Last week, in Jones v. Bonta, a split panel of the Ninth Circuit ruled that California’s restriction on rifle purchases by 18- to 20-year olds violates the Second Amendment. The case is a major victory for gun-rights proponents, but that victory is likely to be short-lived. The en banc Ninth Circuit tends to reverse panels that vindicate Second Amendment claims. It’s likely this case will go en banc as well. But even though its formal legal effect may be temporary, the decision is analytically, doctrinally, and jurisprudentially significant in the way it assesses state law. Those moves may be influential to other judges reviewing Second Amendment challenges and even to the Supreme Court itself if this case eventually makes its way to the high court.

There are actually two laws at issue in the case. The first bars young adults—those between ages 18 and 21—from purchasing long guns (rifles, shotguns, etc.) without first obtaining a hunting license. That law exempts certain law enforcement and active and former military members. The second law at issue completely bars young adults from purchasing one kind of long gun—centerfire semiautomatic rifles. It does not have any exceptions for hunting license holders, although it exempts the same set of law enforcement and military members. Under these laws, young adults are not prohibited from possessing long guns, including centerfire semiautomatic rifles, nor barred from acquiring them in legal ways other than purchase, such as intrafamily transfers (like a gift from a parent). The state’s restriction on the subset of rifles was enacted in 2019 after the Poway synagogue shooting, perpetrated by a 19-year old with a semiautomatic rifle (only the dissent mentioned the impetus for the law). A law not challenged in the litigation, but that formed part of the panel’s discussion of the overall regime, bars young adults from purchasing handguns.

In the district court, the challengers lost on their claims against both the general long gun regulation and the narrower rifle restriction. That court concluded that the state won under the first step of the two-part framework: these laws did not burden conduct protected by the Second Amendment. As an alternative holding, the trial court applied intermediate scrutiny to each claim and held that the laws would pass.

On appeal, Judge Ryan Nelson, joined by Judge Kenneth Lee, affirmed the ruling as to the hunting license requirement, but reversed the ruling as to the semiautomatic rifle restriction. At the first stage of the two-part framework, the majority first acknowledged its limitation as “jurists not historians,” and even noted that corpus linguistics could be a useful part of the historical inquiry (it had called for briefing on the question in this case, but neither party urged the court to use corpus linguistics to help resolve the dispute). In determining at step one whether “the challenged law regulates conduct historically outside the scope of the Second Amendment,” the panel stated that “the Framers’ understanding of the Second Amendment at and around the time of ratification has special significance.” It added that, because the Fourteenth Amendment incorporated the Second Amendment, “our historical analysis also must consider how the right to keep and bear arms was understood in 1868, when that amendment was ratified.” The court did not provide any insight into which timeframe’s tradition to adopt if the historical evidence was different in these each period.

To assess the historical evidence, the court first stated that even though this was a regulation of commerce, the district court was correct in that its “historical analysis focused not on the history of commercial regulations specifically but on the history of young adults’ right to keep and bear arms generally.” The court then expressly held that “the right to keep and bear arms includes the right to purchase them.” “And thus,” says the court, “laws that burden the ability to purchase arms burden Second Amendment rights.” That last line is important. It seems to mean that, in most cases, commercial regulations of firearms will always get past step one of the two-part framework, notwithstanding Heller’s and McDonald’s assurances that those opinions did not call into question “laws imposing conditions and qualifications on the commercial sale of arms.”

With respect to historical evidence, the court laid out five data points that led it to conclude that this law burdens the right of young adults to keep and bear arms:

  1. “the tradition of young adults keeping and bearing arms is deep-rooted in English law and custom,”
  2. “the American colonists brought that tradition across the Atlantic: the colonial militias almost always included all men 18 and older, and other institutions involving keeping and bearing arms made it to our shores, too,”
  3. “at the time of the founding, all states required young adults to serve in the militia, and all states required young adults to acquire and possess their own firearms,” and the federal government did the same just after the founding,
  4. “both at the founding and later, different states had different ages of majority, and the age of majority also varied depending on the conduct at issue,” and
  5. in “the Reconstruction era, some states passed laws that regulated minors’ access to firearms, but most of them only regulated handguns, and only a few banned all sales of firearms to minors.”

The court then went through each point to adduce support for the conclusions it reached.

A few observations I had reading that evidence: the court relied on militia statutes that sometimes mandated service and weapon possession by young adults (and what we would today call non-adult teenagers, like those 16 and 17 years old) to support that those individuals had a right to possess those weapons. At a few points, the court relied on a dissent by Judge Edith Jones in a Fifth Circuit decision upholding a different restriction on the rights of young adults, writing that “[m]uch of Judge Jones’s historical analysis remains unrefuted,” and that “dissents from denial from rehearing en banc, such as the one written by Judge Jones, can be persuasive judicial guideposts.” In discussing laws after Reconstruction that restricted age-based purchases, the court noted that “cases from this time did not address the constitutionality of laws that regulated firearm ownership by young adults.” It seemed to take that as a sign that the issue was unsettled rather than—what seems equally an plausible inference to me—that those laws were widely seen as constitutional.

The court concluded from its historical overview that “the Second Amendment protects young adults’ right to keep and bear arms.” As the court put it, “The Second Amendment refers to the militia, and young adults had to be in the militia and bring their own firearms. This reference implies at least that young adults needed to have their own firearms.” Another similar observation: it’s remarkable to me to glean from these facts any inference about a right against the legislature. All those facts show is legal permission—and in some cases statutory mandate—for young adults to have guns. Without more argument, they don’t support the conclusion that young adults held rights to possess (or purchase) those guns. The court doesn’t make that argument, but instead rejects any notion that the rights of these young adults are connected to the militia because Heller declared the right to keep and bear arms to be independent of militia service.

The court then rejected historical evidence from the Reconstruction era about restrictions on young adults. “On top of the deeply offensive nature of many of them,” the court said, “nineteen out of twenty-eight banned only the sale of handguns, and California’s handgun ban is not at issue.” Only five states had complete bans on the sale of all firearms to minors.

Finally, as to counterarguments, the court rejected California’s argument that its laws were the kind of “conditions and qualifications on the commercial sale of arms” or “longstanding prohibitions on the possession of firearms” by certain groups that Heller saved. For the semiautomatic rifle restriction, the court said that was a prohibition, but not on a group that Heller enumerated. And, although the hunting license regulation was a condition or qualification on the commercial sale of arms, that did not mean it survived at step one. “Some presumptively lawful measures might burden conduct unprotected by the Second Amendment, while others might presumptively pass the applicable level of scrutiny.” And in this case, it said, the conduct was protected, so “[t]he Supreme Court’s observation in Heller is no obstacle to this holding.”

In discussing the second step of the inquiry, the court laid down some guideposts:

The historical analysis controls the first step of the inquiry but not the second. In applying a tier of scrutiny in the second step, we focus not on the historical record (i.e., what kinds of regulations were present at the founding), but on the gravity of the state’s interest (compelling/significant/legitimate) and the degree of tailoring between the regulation and that interest (narrow tailoring/reasonable fit/rational relation). In finding no burden on Second Amendment rights, the district court improperly relied on founding era regulations.

In applying that second part of the two-part framework, the court held that the district court correctly applied intermediate scrutiny to the hunting license regulation, but should have applied strict scrutiny to the semiautomatic rifle restriction. As to the former, because the law simply required a person to obtain a hunting license to purchase a long gun (other than a centerfire semiautomatic rifle), it wasn’t a significant burden. As to the latter, because a hunting license was not sufficient, “it is a blanket ban for everyone except police officers and servicemembers.” The court argued that the circuit has never applied intermediate scrutiny to a law like this before:

To the contrary, our cases applying intermediate scrutiny have dealt with two kinds of laws. First, we have applied intermediate scrutiny to laws that govern conduct outside the core of the Second Amendment because the actors are not ‘law-abiding, responsible citizens’ under Heller. This rule does not apply here. And second, we have applied intermediate scrutiny to laws that regulate either the way people can obtain or use firearms, or auxiliary features of those firearms.

(Citations omitted). The court emphasized that the law here “bans almost all young adults from having semiautomatic rifles.” In fact, the panel did something the Ninth Circuit en banc eschewed in the Peruta case when it considered the “cumulative effect” of California’s unchallenged handgun restriction for young adults. Adding that to the centerfire rifle restriction at issue, “[t]hat leaves nonsemiautomatic centerfire rifles, rimfire rifles, and shotguns,” all of which the court said were subpar self-defense alternatives.

Even acknowledging that shotguns are effective weapons for self-defense in the home, shotguns are outmatched by semiautomatic rifles in some situations. Semiautomatic rifles are able to defeat modern body armor, have a much longer range than shotguns and are more effective in protecting roaming kids on large homesteads, are much more precise and capable at preventing collateral damage, and are typically easier for small young adults to use and handle.

(Footnote omitted). As legal scholar and expert on self-defense law Eric Ruben pointed out in a Twitter thread about the opinion, the court’s identified self-defense alternatives focus exclusively on what firearms could be used in self-defense, ignoring all nonfirearm “arms” and other means of self-defense, even though firearms are rarely used in self-defense situations.

Because this law impedes the easy availability of semiautomatic rifles, said the court, it imposes a severe burden. The ability of young adults to receive these rifles as gifts from family does not alleviate the burden because it “makes young adults’ Second Amendment rights conditional on the rights of others.” Nor do provisions allowing loans from other family members for temporary periods of time. And the fact that the restrictions lift when a person turns 21 has no bearing, the panel said, because even a temporary deprivation of a constitutional right is severe.

As should be clear from this analysis, the panel’s insistence that the restrictions on purchase (but not possession) constitutes a “ban” is almost the entire ballgame. As I’ve highlighted at least a few times on this blog, Joseph’s article, aptly called “Bans,” explains how and why courts make this characterization and what it triggers in constitutional adjudication. The Jones court is a good example: “this ban of semiautomatic rifles requires strict scrutiny, because handguns are already banned, and semiautomatic rifles are now effectively banned. That means two of the three types of effective self-defense firearms are banned, leaving young adults with limited or ineffective alternatives in many self-defense scenarios, and severely burdens their Second Amendment rights.” (Emphases added.) As the dissent points out, this law is much different from the ban addressed in Heller, where no one could possess a handgun in the home, for life, and characterizing this restriction as a ban leads right into the court’s conclusion that it violates the Second Amendment.

After declaring the appropriate level of scrutiny, the court’s applications were fairly straightforward. One argument that stood out to me, however, was the panel’s statement that—in thinking through what qualifies as a substantial/compelling government interest—public safety “is not a standalone government interest separate from the Second Amendment.” Remarkably, the court said that “[t]hough public safety is important, firearms were also dangerous in 1791, when the Second Amendment was ratified, and the government then also had an interest in promoting public safety.” It’s strange to suggest that firearms today pose the same level of threat to others as firearms did in 1791. As Darrell has written (and is writing more about), modern firearms are significantly more lethal.

I’m not sure what to make of the panel’s public safety argument, but if it suggests that public safety is not a legitimate government interest for enacting gun regulations, it’s both radical and radically ahistorical. But the panel is equivocal on that point, for it also says: “Thus, in the reasonable fit part of the analysis, the importance of the interest has no effect: once the interest is shown to be important, the question becomes whether the law is a reasonable fit. The importance of the interest cannot override Second Amendment rights.” It is hard for me to parse what these sentences mean. Nonetheless, the panel affirmed the district court’s conclusion that the hunting license regulation is a reasonable fit for the government’s interest and thus passes intermediate scrutiny.

But as to the semiautomatic rifle restriction, the panel faulted the district court for not using strict scrutiny and held, in the alternative, that the law would fail even under intermediate scrutiny. In this part of the analysis, the panel criticized the Ninth Circuit’s “cherry-picked formulation” of intermediate scrutiny that has “dispensed with the fit requirement.” It’s really a two-pronged formulation, said the panel: “This is the essence of the intermediate scrutiny test: the regulation must be a reasonable fit for the government’s stated objective, which means not just that it accomplishes something, but also that it does not burden far more speech than is necessary.” “When we omit the second part of the inquiry, we neglect to consider fit at all.” Quoting the Oxford Dictionary of English’s definition of “fit” the panel said: “a law is a good fit for a goal if it regulates only when it helps achieve that goal, and not in other instances. The more innocent conduct that is regulated, the less good a fit the law is. And conversely, sweeping in less innocent conduct makes for a better fit.” (I’ll admit it strikes me as a bit silly to use a dictionary not to help understand the terms of a constitutional provision or statutory text but to explain a word used in a doctrinal test created by the Supreme Court.)

On the question of the fit of the semiautomatic rifle restriction with California’s interests, the court analogized to Craig v. Boren, an equal protection case the Supreme Court decided under intermediate scrutiny (as did the majority in a now-vacated Fourth Circuit decision on a different firearm restriction for young adults). In Craig, the Court said the law was overbroad because it forbade all young adult males’ alcohol purchasing when only 2% of male young adults drove drunk. Bringing that statistical analysis over directly, the panel here said that only a small fraction of young adults misuse semiautomatic rifles (0.25% are arrested for violent crimes) and yet the law applies to all young adults. Yet, the panel cautioned, “[w]e establish no rigid statistical framework; we use a few numbers only to compare Craig v. Boren with this case, and to illustrate that the fit here is substantially more tenuous.” The court also acknowledged that the Second Amendment does not require individualized hearings, but it did say that “one way that states can improve regulations’ fit is by having exceptions or more individualized assessment.”

Judge Lee wrote a concurring opinion stating that the majority explained how “California’s law effectively banning the sale or transfer of semiautomatic firearms to young adults conflicts with the text, tradition, and history of the Second Amendment.” This is a curious way of putting it, since Judge Nelson didn’t even gesture in the way of the text, history, and tradition alternative test championed by many conservative judges, but applied the Ninth Circuit’s two-part framework to strike down the law. The history the majority outlined went only to part one of the framework, asking if the Second Amendment came into play, not the step two analysis. The main thrust of his concurrence, however, was to criticize a watered down version of intermediate scrutiny. “To accept the state’s argument would mean allowing the government to restrict individuals’ enumerated constitutional rights based solely on their group membership.” But, again, it’s curious to me to call “being an 18- to 20-year old” a “group” in any meaningful sense in which there’s membership. He added that “[y]oung adults have the same constitutional rights as the middle-aged or the elderly—even if some of them may not necessarily have the wisdom or judgment that age and experience can bring—for the same reason that we do not limit fundamental rights based on supposed intelligence, maturity, or other characteristics.” He concluded with an acknowledgment of the toll and tragedy of gun violence, but said that the statistics on gun misuse should “provide a perspective on whether we should restrict a constitutional right for the larger population based on a minuscule percentage of the populace who abuses that right.”

Judge Sidney Stein, a New York district judge sitting by designation, dissented. In his view, the lower court decision should have been affirmed in all respects. He particularly faulted the majority for “[n]eglecting consideration of either the disproportionate perpetration of violent crime by, or the relatively immature and variable cognitive development among, adults under age 21.” He also criticized the enunciation of a right to purchase guns: “I do not contest that the prohibition on FFLs selling semiautomatic rifles to young adults is directly tied to young adults’ ability to purchase semiautomatic rifles. However, while the Second Amendment right surely protects the right to possess and use firearms, the majority’s inferential leap to the assumption that it protects the right to purchase firearms goes too far.” And he rejected the majority’s characterization of the law as a ban, writing that it leaves open other mechanisms to acquire rifles (intrafamilial transfer, loans, etc.) and no prohibition on possession or use. Thus, he said, “to classify it as a ban without qualification is a patent misreading of the statutory text.”

One other critique I think worth highlighting is the dissent’s discussion of what the history can show: “historical review in line with an originalist understanding of constitutional rights tends to produce different interpretations and conclusions depending on the level of generality from which the analysis begins.” That criticism obviously has an impact not just on how these Second Amendment cases are discussed and debated, but the history and tradition at issue in Dobbs as well. (As Judge Sutton said in one of the circuit decisions on the Affordable Care Act’s individual mandate, “[l]evel of generality is destiny in interpretive disputes.”)

Although I disagree with much of the panel’s legal analysis, it strikes me as a mainstream, reasonable view of a contested question and, what’s more, as a decision vigorously vindicating Second Amendment rights that doesn’t resort to the vitriolic rhetoric and ad hominem attacks that I’ve criticized in other Second Amendment opinions (like Judge VanDyke’s recent separate opinion and Judge Benitez’s many opinions). I’ve said something similar about the serious tone of Judge Lee’s prior panel opinion affirming a Judge Benitez opinion and about other decisions vindicating Second Amendment rights, so my criticism of the tone of those other opinions isn’t because of the outcomes they reach, but the manner in which they go about doing so. Second Amendment doctrine is still in its infancy and the life and death stakes of litigation call for a seriousness that is often missing in some opinions by judges in the Ninth Circuit. Thankfully, no matter how one views the legal conclusion the panel reached here, this isn’t one of those rulings that lack seriousness.




Scholarship Highlight: New Research and Arguments about the Second Amendment

There’s been a spate of new Second Amendment scholarship, including a just published piece by the Center’s own Joseph Blocher (with co-author Eric Ruben). There are also a couple of wide-ranging student pieces skeptical about/supportive of different gun regulations.

  • Eric Ruben & Joseph Blocher, “Second-Class” Rhetoric, Ideology, and Doctrinal Change, 110 Geo. L.J. 613 (2022)

Abstract:

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as a matter of rhetoric. What do people mean when they allege that a constitutional right is subject to second-class treatment? What are the relevant audiences for these arguments? And how does such rhetoric travel throughout the legal system–from briefs, for example, into court opinions?

In this Article, we use Second Amendment litigation to illuminate the complex interplay between attorneys and judges invoking the second-class claim. After situating the second-class argument within the literature on law and rhetoric, we empirically investigate its development by isolating each use of second-class rhetoric in briefs and opinions in the decade following District of Columbia v. Heller. We show that the second-class argument is, indeed, increasingly prevalent in litigation as a justification for enhanced judicial protection of the Second Amendment. We also find support for the proposition that advocates use the second-class claim differently depending on the court they are in. Finally, we show how the second-class claim is ideological, appealing to a small but growing number of Republican-nominated judges. Our analysis provides a clearer picture of an increasingly common argument that has the potential to shape individual rights jurisprudence for years to come. And by illustrating a more nuanced picture of how a consequential legal argument operates on a rhetorical level, we hope to advance our understanding of how constitutional change happens.

  • Zachary S. Halpern, Young Guns: The Constitutionality of Raising the Minimum Purchase Age for Firearms to Twenty-One, 63 B.C. L. Rev. 1421 (2022)

Abstract:

In 2008, in District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects the right of “law-abiding, responsible citizens” to keep and bear arms to defend their home. The Court’s decision in Heller, however, left novel questions about the scope of the right unanswered, including at what age it vests. Federal law prohibits federally-licensed dealers from selling handguns to persons under twenty-one, but it permits persons over eighteen to possess and use handguns and acquire them through private sales. In 2018, in response to the mass shooting at Marjory Stoneman Douglas High School, Florida raised its minimum purchase age for all firearms to twenty-one. The National Rifle Association immediately challenged the law in federal court, claiming that it violated the Second Amendment rights of young adults aged eighteen to twenty. In 2021, in National Rifle Ass’n v. Swearingen, the U.S. District Court for the Northern District of Florida held that the law is consistent with the Second Amendment. This Note discusses how federal and state statutory regimes interact with the Court’s Second Amendment jurisprudence to govern young adults’ access to firearms. It examines arguments concerning the constitutionality of Florida’s minimum purchase-age provision and contends that the measure is valid because it is analogous to the “presumptively lawful” restrictions identified in Heller and because it survives intermediate scrutiny.

  • Jamie G. McWilliam, The Unconstitutionality of Unfinished Receiver Bans, 2022 Harv. J.L. & Pub. Pol’y Per Curiam 2 (2022)

From the Introduction (footnotes omitted):

There is a long and storied tradition in the United States of privately manufacturing firearms. In fact, at the time of the founding, there were no large-scale firearm manufacturers. Rather, prospective firearm purchasers would either have to make the weapon themselves or find a blacksmith to create a one-off firearm for them. Private firearms were very precise–much more so than what governments could typically afford to provide for their own troops. They were so precise, in fact, that ammunition would have to be made at home to custom match the individual firearm.

In the past, making a firearm at home was an arduous process. A barrel would have to be hammered out of an iron sheet and then welded. The stock would be hand carved from wood. The firing mechanism would have to be fashioned from iron. And the gunpowder for ammunition would be made using foraged sulfur and the charcoal from campfires. This was a time-consuming process that more closely resembled the craftsmanship of an expensive mechanical watch than the computer-controlled machining of the firearm factory today.

Some still engage in this historical process of firearm building. Today, though, the prospective firearm manufacturer has less laborious options for doing so. They can purchase components to build a firearm from pre-built parts. They can also print firearms using one of many commercially available 3D printers. The relative ease with which firearms can be made using modern technology has led to the concern that convicted felons may circumvent their inability to purchase a firearm by making one at home. In response, a number of states have introduced laws to limit the ability of citizens to construct their own firearms.

Given the intriguing technology involved, the legal implications of 3D printed firearms and laws related to them have captured the attention of commentators and scholars. However, a more common, yet less flashy, method has gone largely under the radar: The uses of an unfinished receiver (colloquially known as an 80% lower). This paper examines the constitutionality of legal restrictions on the use of unfinished receivers. Many arguments against such restrictions are based on equal protection or due process, but this paper will focus on their Second Amendment implications.

Part I of this paper examines unfinished receivers and laws regulating them. Part II lays out the proper way to review Second Amendment restrictions. Part III uses this review framework to argue that bans on unfinished receivers are unconstitutional.

  • Laura E. Johnson, Mental Health History Is History: A Lifetime Ban on Gun Possession Due to History of Involuntary Commitment Violates the Second Amendment, 100 N.C. L. Rev. 919 (2022)

Abstract:

Gun control is a widely debated issue in the United States that often centers on whether restricting access to firearms will increase safety. What is often left undiscussed is the stigma and stereotypes that long-lasting bans on firearm possession have on those subjected to gun control laws. Section 922(g)(4) of the Gun Control Act imposes a lifetime ban on gun possession for persons who have a history of involuntary commitment. The Sixth and Ninth Circuits, in Tyler v. Hillsdale County and Mai v. United States, respectively, were asked to decide whether this lifetime ban violates the Second Amendment. Applying intermediate scrutiny, the Sixth Circuit said yes while the Ninth Circuit said no.

This Recent Development examines this resulting circuit split as well as the government’s justifications for § 922(g)(4)–preventing crime and suicide–and argues § 922(g)(4) fails to adequately address those important issues, making it unconstitutional under the Second Amendment. Section 922(g)(4) permanently categorizes those with a history of involuntary commitment as mentally ill, instead of addressing the real issue: keeping guns out of the hands of those who currently present a danger to themselves and others. Recognizing that the government’s interests are nevertheless important, this Recent Development proposes the adoption of a federal extreme risk law that adequately instills measures aimed to prevent crime and suicide while also protecting the rights of those subjected to involuntary commitment.

  • Leah Boston, Does the Second Amendment Entail the Right to Conceal Carry Firearms in Public for Self-Defense? The Proper Cause Issue Finally Addressed, 46 T. Marshall L. Rev. 135 (2022)

From the Introduction (footnotes omitted):

The year 2021 has been a long year for mass shootings, and it is not even halfway over. “18 weeks into 2021,” and the “U.S. has experienced 194 mass shootings,” averaging approximately ten per week. Not surprisingly, “by the end of [2020], at least 20 million guns” had been sold legally, increasing “12.4 million since 2019.” Along with this increase in gun sales, and in response to the death of George Floyd, 2020 saw “tens of thousands” protest and march in many cities around the U.S. The increase in gun sales and protests in the same year seems to correlate with the desire to arm oneself amidst the current events. Yet, Americans who favor some form of gun control are unlikely to see it depending on the state they live in.

America saw “its first significant form of gun control laws between the two World Wars”–an example of Congress’s constitutional authority to regulate. Congress has the power to write a uniform set of national regulations. “Once Congress exercises this right …, the states are constitutionally prohibited from adopting laws inconsistent with the federal” mandate. This is an example of federal preemption. Congress has the right to elect whether it will insert itself or delegate the responsibility to the states to regulate certain industries or activities. Regulation of the firearm industry is an example of Congress’s discretion. Congress has refrained from regulating the firearm industry exclusively, but it has not completely resigned its authority to the states. Instead, the states are free to regulate firearms alongside the federal government. Thus, when purchasing a firearm, an individual must comply with whichever law is the strictest. In turn, for gun rights advocates, states with stricter firearm laws may prove burdensome. Accordingly, firearm laws are frequently litigated. Thus, a possibly more conservative Supreme Court interpreting the Second Amendment is favorable for those who want limited firearm restriction. This paper will address our court systems’ different interpretations of the Second Amendment.

Part II will explain how the Supreme Court’s interpretation of the Second Amendment has evolved over time and will discuss a recent case that has caught the Court’s attention, N.Y. State Rifle & Pistol Ass’n v. Corlett. Part II will also discuss the New York state regulation at issue in that case. Part III will detail the circuit courts’ heavy divide over Second Amendment interpretations and this issue’s relation to the current makeup of the Supreme Court. This analysis will aid in predicting where each Justice stands on topics of the Second Amendment, firearm possession, and legislative gun regulation. Next, this paper will predict how the Supreme Court will rule on this basis. Finally, Part IV will suggest how the Supreme Court should rule in the Corlett case.




Scholarship Highlight: Impact of Rehaif on 922(g) Prosecutions

We’ve written a number of times about the Supreme Court’s 2019 decision in Rehaif v. United States and its aftermath. That decision requires the government to prove, in order to secure a conviction for unlawfully possessing firearms, that the defendant knew he belonged to the category of persons who is prohibited from possessing firearms. A fascinating new paper on SSRN by Matthew Mizel, Michael Serota, Jonathan Cantor, and Joshua Russell-Fritch finds that Rehaif actually does constrain prosecutors. In “Does Mens Rea Matter?” forthcoming in the Wisconsin Law Review, the authors empirically test the impact of the Rehaif decision on § 922(g) prosecutions.

Here’s the Abstract:

Does mens rea matter to the criminal legal system? Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state’s impact on administration of a criminal statute. We focus on the U.S. Supreme Court’s 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal felon-in-possession statute, 18 U.S.C. § 922(g). Prior to Rehaif, federal courts uniformly treated the critical objective element under 922(g)—whether a firearm or ammunition possessor meets the conditions for one of nine prohibited legal categories—as a question of fact for which an actor could be held strictly liable. Adding a knowledge requirement to this element resulted in a significant decline in the likelihood of a defendant being charged with 922(g), the number of 922(g) charges per defendant, the total number of defendants charged with 922(g), and the total number of 922(g) charges filed each month. We estimate that these charging reductions prevented 2,365.32 convictions and eliminated 8,419.06 years of prison sentences for 922(g) violations during the eight-month period following issuance of the Rehaif opinion. At the same time, prosecutors were just as likely to secure convictions of those they charged with 922(g) after the Rehaif decision as they were before it. All told, our study suggests that adding culpable mental states to criminal statutes can meaningfully constrain prosecutorial discretion, lower convictions, and reduce punishment without bringing criminal administration to a halt.




Illegal Firearm Possession: A Reflection on Policies and Practices that May Miss the Mark and Exacerbate Racial Disparity in the Justice System

Introduction

Justifiably, there has been considerable attention and focus by the public, scholars, policy makers, and criminal justice and public health practitioners on violent crimes involving firearms. However, much less attention has been paid to the crime of illegal possession of firearms. Part of this reflects dramatically different definitions of this behavior across the states given the variation in the requirements for concealed carry of a handgun, and thus what constitutes legal versus illegal possession or carrying. And while clearly the commission of a violent crime with a firearm versus the possession of a firearm by someone not licensed/permitted to do so are substantively different behaviors, often the term “gun crimes” conflates the two criminal offenses. This essay examines the issue of how illegal possession of a firearm is responded to by the justice system, with a focus on Illinois to illustrate some of these issues and how arrests and convictions for these offenses disproportionately impact Black men.

Violent Crime Committed with a Firearm (The Real Problem)

In 2019, it is estimated that there were more than 480,000 violent crimes committed with a firearm in the United States,[1] representing a 68% decrease when compared to 1993.[2] However, despite this dramatic decrease in the number of violent crimes committed with a firearm, the rate at which Blacks experience fatal and non-fatal firearm violence victimization remains significantly higher than that experienced by whites. In 2019, for example, the rate of non-fatal firearm violence victimization (i.e., robbery, assault/battery, rape) among Blacks was 287 per 100,000 population, more than double the rate of 134 per 100,000 among whites and similar to the 251 per 100,000 rate among Hispanics.[3] The racial disparity in firearm homicide victimization rates is even more pronounced nationally, with the 2019 rate for Blacks at 19.6 per 100,000, or 12-times higher than the rate of 1.6 per 100,000 population for whites and six-times higher than the rate of 3.8 per 100,000 among Hispanics.[4]

However, we also know that these rates vary considerably across individual states and communities within states. In, Illinois, for example, in 2019 the rate of firearm homicides among Blacks was 32.7 per 100,000, compared to 1.1 per 100,000 for whites and 4.3 per 100,000 among Hispanics.[5] Even more specifically, the rate of firearm homicides among Blacks in Cook County, Illinois (which includes Chicago) was 37.9 per 100,000 in 2019, 1.2 per 100,000 among whites, and 5.9 per 100,000 among Hispanics.[6] However, in 10 of Chicago’s 77 “community areas,”[7] the overall homicide rate in 2019 was over 50 per 100,000, and is even higher among Black men.[8]  Thus, when it comes to the highly publicized instances of firearm homicides, as well as the less publicized, but much more prevalent, non-fatal firearm victimizations, Blacks, and particularly young Black men, experience the highest rates of firearm violence, particularly in specific communities within large, urban areas.

Despite the seriousness of these violent crimes committed with a firearm, not only are a substantial portion not reported to the police, but of those that are reported to the police, most do not result in an arrest. For example, of the non-fatal violent crimes committed with a firearm in 2019 in the United States, 60% were reported to the police.[9] However, even when these crimes are reported to the police, in most instances they do not result in arrests. The Federal Bureau of Investigation estimated that in 2019 less than one-third of all aggravated assaults and robberies with a firearm in the United States were cleared by an arrest.[10] For the most serious form of gun violence—homicide—clearance rates tend to be higher than non-lethal violent firearm offenses, but are still low given the seriousness of the offense and relative to historic levels (i.e., clearance rates in 2020 were 54%, but exceeded 65% prior to 2000).[11]

Further, when it comes to responses by the justice system to gun violence, much of the focus has been on the sanctions that can be imposed on violent crimes committed with firearms. Examples of the more punitive sentences that can be imposed on violent crimes committed with a firearm include mandatory minimum prison sentences, sentencing enhancements when violent crimes are committed with a firearm (e.g., additional years added to a sentence when armed with a firearm or when a firearm is discharged during the commission of a crime), violent crimes committed with a firearm being subject to truth-in-sentencing, or three-strike/habitual offender laws, all of which are intended to increase the certainty and severity of punishment. Much of the response by legislatures, prosecutors and judges to violent crimes committed with a gun has been based on the understandable recognition that these violent crimes pose a significant danger to the public, and that those individuals who commit these offenses need to be incapacitated, punished, and not released until they no longer pose such a significant risk to public safety.

A Focus on Illegally Possessing Firearms

Given the limited degree to which the criminal justice system is able to apprehend and sanction those who commit violent crimes with a firearm, due to not all crimes being reported to the police and low clearance rates, the logical alternative is to find those who may be illegally possessing firearms under the view that some of them may be driving the gun violence problem. We saw similar thinking during the late 1980s and the war on drugs—those possessing drugs illegally may be drug dealers or may be driving violence, and thus, penalties associated with the illegal possession of drugs like cocaine, heroin and methamphetamine were increased. However, the justice system’s response to the illegal possession of a firearm, often lumped into the broad category of “gun crime,” is less well understood empirically. Further, while possession of a firearm is necessary to commit a violent crime with a gun, not all of those who possess a gun (either legally or illegally) intend to use it that way. While there has been a lot of research that has used gun confiscations (i.e., arresting people who illegally possess firearms) as an outcome measure in, for example, evaluations of hot-spot policing or assessment of the efficacy of stop-and-frisk practices, there is little research that has examined the characteristics of those arrested for illegal firearm possession, the sentences imposed on those convicted of these offenses, and subsequent recidivism patterns of those convicted.

Frequently these crimes are referred to as “unlawful use of a weapon,” or UUW, however, to many (particularly the general public) this terminology conflates possession with actually using a weapon to commit a violent crime. And while it is recognized that not all UUW offenses involve the illegal possession of a firearm, in many jurisdictions most crimes that fall into this category are in fact firearm possession crimes. In 2019, there were more than 153,000 arrests by state and local police departments in the United States for weapon offenses (i.e., UUW), 9% more than in 2014;[12] arrests by federal law enforcement agencies for weapon offenses, albeit much fewer, increased 67% between 2014 and 2019, reaching almost 12,000.[13] For context, while arrests by state and local police departments in the United States for UUW increased 9% between 2014 and 2019, arrests for all crimes combined fell 10% and arrests specifically for violent crimes remained essentially unchanged (falling 0.5%).[14] It is important for scholars to determine if this increase in arrests for weapon offenses reflects an increased focus by police on these types of crimes, an increased prevalence of the behavior (i.e., more illegal carrying of weapons), or a combination of both.

In addition to an increase in arrests, arrests for UUW are also much more likely to involve Black individuals than are arrests for other crimes; in 2019, 42% of all people arrested for weapon offenses in the United States were Black, while Blacks accounted for 37% of all arrests for serious violent crimes and 26% of arrests for all other offenses.[15] Again, trends in arrests for illegal possession of a firearm offenses likely differ from state to state, and community to community, as does the degree to which Blacks are overrepresented among those arrested. Research in Illinois found that while total statewide arrests for illegal firearm possession increased 70% between 2014 and 2019, specifically in Chicago (and Cook County) arrests for these offenses increased 85%, with much larger (and smaller) percent changes seen across other large jurisdictions in the state.[16] Throughout this period of increased arrests for illegal firearm possession were announcements by Chicago’s Mayor and Superintendent of Police regarding “crack downs” on illegal gun possession, suggesting the increase in arrests in Chicago were, at least partly, attributed to a greater focus by police on proactively looking for these crimes (i.e., through traffic stops and other on-view enforcement activity). In terms of the race of those arrested in Illinois, 79% of those arrested in Chicago (Cook County) were Black, compared to 54% of those arrested in the rest of Illinois for this offense being Black.[17] An even finer point, to illustrate the specific population most impacted by arrests for illegal firearm possession in Chicago (Cook County): 79% were Black, 92% were male, and 52% were between the ages of 18 and 24 (i.e., young, Black men).

Importantly, and as mentioned above, the legal criteria for what constitutes the offense of illegal possession of a firearm varies from state to state, depending on their laws regarding licensing of gun owners or licensing requirements for carrying a concealed handgun. In a state without licensing requirements for concealed carry of a handgun (i.e., permitless carry), what constitutes illegal possession is much narrower and more limited than a state that requires a permit in order to carry a concealed handgun. Thus, in a state like Illinois, where concealed carry requires both a Firearm Owners Identification (FOID) card (permit to purchase/own) and a concealed carry license (which requires training classes, registration, and fees) the opportunities to be found illegally possessing a firearm are greater than in states that do not require a permit to carry a concealed handgun. Currently, 21 states have no permit requirement,[18] and it is likely that, as a result, there is a lower rate of arrests for illegal possession of a firearm in these states. Thus, the degree to which individuals are arrested, convicted and sentenced for the illegal possession of a firearm will vary considerably from state to state given the differences in what is legal versus illegal from state to state.

In addition, the consequences of arrests for illegal possession of a firearm depend on state law, and are also influenced by local practices. How this behavior is legally classified in states ranges from misdemeanor-level to non-probationable felony crimes. In states where this crime is a felony, a conviction potentially has life-long consequences given the implications of having a felony conviction, including restrictions or limitations on an individual’s employment opportunities, voting rights, access to housing, and firearm ownership. In addition, whether or not a conviction for a felony firearm possession offense results in a sentence to prison will also vary from state to state, and county to county (or prosecutor’s office to prosecutor’s office). Indeed, even the degree to which the illegal possession of a firearm is viewed as a “crime of violence” varies from jurisdiction to jurisdiction, and practitioner to practitioner, but has obvious implications for how these offenses are viewed by practitioners as they make decisions regarding pre-trial release, charging, plea-bargaining and sentencing.

Illegal Firearm Possession as a(n imprecise) Proxy for Firearm Violence

Given the pressure for police to address gun violence in the communities most impacted, it is understandable that if police are unable to identify those committing fatal and non-fatal shootings, they would seek at least identify potential shooters by arresting those illegally possessing firearms. And if the police are going to focus on illegal firearm possession to address firearm violence, they will likely concentrate their efforts in the specific communities with the highest rates of gun violence. Illustrative of the impact of this pattern and approach, in Chicago there is a near perfect correlation between arrest rates for illegal firearm possession and rates of non-fatal violent crimes committed with a firearm across the 77 community areas in the city (Figure 1).[19] In other words, the communities with the highest rates of gun violence, which are also the communities where police and Black residents are most highly concentrated, experience the highest rates of arrests for illegal firearm possession. However, the analyses presented in Figure 1 also illustrates how in some communities the rate of arrests for illegal firearm possession actually exceeds the rate of fatal and non-fatal firearm shootings (i.e., the data points, which represent each of the 77 Chicago community areas, below the line are communities that had firearm possession arrest rates that were higher than the rate of fatal and non-fatal firearm shootings).

Figure 1: Rates of Fatal and Non-Fatal Firearm Shootings versus Rates of Arrests for Illegal Firearm Possession, by Chicago Community Areas, 2017-2019 Combined

Still, clearance rates for the actual violent crimes committed with a firearm remain low: in 2019, less than 10% of aggravated batteries and robberies with a firearm resulted in an arrest.[20] In addition, the means by which the police identify people illegally possessing firearms often rely on approaches—hot-spot policing, aggressive enforcement of traffic laws, and stop-and-frisk practices in communities with high rates of gun violence and large concentrations of Black residents—that have the potential of exacerbating distrust between police and minority communities. Further, in carrying out operations to increase arrests for illegal firearm possession, it is likely that police are casting a wide net—not all of those in a community who illegally possess firearms are doing so with the intent of committing violent crimes with a firearm. Indeed, given the high rates of violence, particularly gun violence, in these communities, it is understandable why those with the highest risk of victimization (young Black men) would perceive a benefit to carrying a firearm for self-protection. Research has consistently found that most people who own, and carry, firearms do so for personal protection, including those that have concealed carry licenses as well as those who may be prohibited from/not licensed to legally carry a concealed handgun. In many states, to obtain a concealed carry permit, and to therefore be legally compliant, involves a process (costs and submission of information to law enforcement) that many may not be an able to afford, or, more importantly, may not trust. For example, a survey by the Urban Institute of young people (aged 18 to 26) living in Chicago neighborhoods most impacted by violence, and almost all of whom were Black, found that while one‐third (32%) of the entire sample had carried a firearm illegally at some point in their lives, the prevalence was higher (50%) among males, and even higher among those who had been previously victimized. Almost all of those who reported having carried a firearm reported that self‐protection or to protect friends/family members was the reason for gun carrying. Among those respondents who reported carrying a firearm, the vast majority did not have strong perceptions of police legitimacy and did not perceive the police as effective at reducing crime.[21] Of all those arrested in Illinois for illegal possession of a firearm offenses between 2008 and 2019, it is estimated that just over one-third (35%) were older than 20 and had no prior conviction for a felony or a domestic violence offense (i.e., they did not have a disqualifier to applying for and obtain a concealed carry license in Illinois) and most were Black.[22]

Sentencing Those Convicted of Illegal Firearm Possession

Thus, we see nationally, and specifically in Illinois and Chicago, an increase in arrests for the illegal possession of firearm (i.e., UUW) in recent years that disproportionately impact individuals that are Black, and, as illustrated in Chicago, young Black men from specific neighborhoods with high rates of gun violence. How these arrests are responded to by prosecutors and the courts, however, is less well known. Nationally, the availability of data on sentencing those convicted of illegal possession of a firearm offenses is limited, and quite dated. The most recent nationally representative sample of sentencing outcomes for those convicted of a felony-level weapon offense (i.e., UUW) is 2006, and found that 45% of those convicted of a felony weapon offense were sentenced to prison.[23] A slightly more recent assessment of felony sentences imposed in large, urban counties in the United States found that in 2009, 53% of those convicted of a felony weapon offense were sentenced to prison.[24] However, as noted above, given the wide variation across states in what constitutes illegal firearm possession (i.e., differences in concealed carry requirements), and the degree to which those offenses are felony or misdemeanor crimes, understanding sentencing outcomes of these arrests requires a state by state examination to fully determine the influence of defendant, case, offense, and jurisdictional characteristics influence sentencing decisions.

Research performed in Illinois, and separately for Cook County (Chicago), found that changes to how the offense of illegal possession of a firearm is classified in state statute over time resulted in a dramatic increase in the likelihood of a prison sentence. Importantly, since 2011, almost all instances where a loaded handgun is carried, or accessible in a vehicle, without a concealed carry permit by someone without any prior convictions is a non-probationable felony (with a sentence of 1 to 3 years). When this law was signed into effect, Richard M. Daley, the Mayor of Chicago at the time and an advocate for the new legislation said “This legislation will reduce the threat of gun violence by sending a clear message that serious offenders will be held accountable and will not be let off scot-free as many of them have been in the past” (emphasis added).[25] Even more to the point, and illustrating the conflating of illegal firearm possession with the commission of violent crimes with a firearm, Ronald Holt, from the Chicago Police Department but also the parent of a son killed by gunfire stated “(This bill) sends a clear message to violent offenders that they will be dealt with to the fullest letter of this law, as punishment will be swift, severe and fair” (emphasis added).[26] Again, the law required a prison sentence for illegal gun possession by people without any prior convictions, and had nothing to do with violent crimes committed with a firearm, which already require prison sentences with potentially long sentences given the firearm sentencing enhancements in place.

However, despite these state laws, the application of the law appears to have primarily occurred in Chicago (Cook County). When the law requiring a prison sentence for those without a felony conviction, but illegally carrying a handgun, went into effect in 2011, sentencing patterns changed dramatically in Cook County (Chicago), but did not change at all outside of Cook County. In Cook County, the proportion of those convicted of this offense being sentenced to prison went from 30% in 2010 to 80% by 2013; outside of Cook County, the proportion of those convicted of this offense sentenced to prison remained at 30%. And although race did not influence whether or not those convicted of these offenses went to prison after controlling for other characteristics, such as age, gender, and prior arrests, the vast majority of those arrested, convicted and sentenced to prison were Black men.

In addition to mandatory prison sentences for those illegally possessing a handgun among those without prior felony convictions, over the past two decades in Illinois the sentencing for those with prior felony convictions that illegally possess firearms has also shifted to mandatory prison sentences (with longer maximums than other crimes in the same felony class). Since 2006, someone with a prior felony conviction for specific violent offenses, firearm possession offenses or specific drug-law violations who are subsequently in possession of a firearm are guilty of a non-probationable felony (with a sentence of 3 to 14 years), and since 2012 someone possessing a firearm with any prior felony conviction is also guilty of a non-probationable felony (with a sentence of 2 to 10 years). This change in 2012 was made despite the fact that most of those convicted of this offense were already being sentenced to prison, but this change resulted in all being sentenced to prison. Again, the vast majority of those convicted of the offense of a felon in possession of a firearm in Illinois were Black men in Chicago, and disproportionately from 11 specific neighborhood in the city.

In other words, as a result of these legislative changes, everyone who is arrested and convicted of illegally carrying a handgun in Illinois—primarily young, Black men in Chicago—is viewed as so dangerous that prison is seen as the only appropriate sentencing response. For those with felony convictions, it does not matter what the prior felony was for, how long ago the felony conviction occurred, or if the prior felony conviction indicated any propensity for violence. Among those convicted as a felon in possession of a firearm, the majority—74%—did not have any prior conviction for a violent felony offense. Rather, most were “felons” as a result of a prior conviction for drug-law violations, property crimes, or a prior illegal firearm possession offense.

Although there is limited, current national data on the sentencing of those convicted of illegal firearm possession offenses in the United States, it is possible to examine the number, trends and characteristics of those admitted to prison for these offenses (i.e., the illegal possession of, primarily, firearms, not the use of firearms in the commission of violent crimes). When looking at national trends, admissions to prison for these weapon offenses increased 9% between 2014 and 2019, while admissions for all non-weapon offenses fell 21% during that same time period.[27] These differential trends, for the most part, reflect trends seen in arrests, and are also consistent with the pattern in Illinois: more prison admissions for firearm possession offenses, but decreased admissions for all other crimes. Further, nationally, prison admissions for weapon offenses reflect an even higher degree of racial disparity than seen among arrests: Black individuals accounted for the majority (55%) of those admitted to prison for weapon offenses in 2019, but Blacks accounted for only 32% of prison admissions for all other offenses.[28]

Again, as a result of differences in state laws, policies and practices, the degree to which prison admissions are accounted for by weapon offenses varies. Illustrative of this variation, in 2019, weapon offenses (primarily illegal firearm possession) accounted for 5% of all prison admissions in the United States, however in states like California, New York and Illinois, 10% or more of the prison admissions were for these offenses. Even more specifically, a much larger share of prison admissions from large, urban counties are for weapon offenses. For example, in the 2018-2019 period, 21% of all prison admissions from Cook County (Chicago) were for weapon offenses, 17% of all prison admissions from Wayne County (Detroit) were for weapon offenses, and 13% of all prison admissions from Los Angeles County were for these crimes.[29] In fact, one out of every 10 (11%) prison admissions in the entire United States for weapon offenses in 2018-2019 were from just two counties, Cook and Los Angeles County, combined. Overall, the three states of California, Illinois and New York accounted for almost one-third (32%) of all prison admissions for weapon offenses in the United States in 2018-2019, but only 22% of the total U.S. population.[30]

Conclusions

There are a number of implications from the patterns and issues raised in this essay. First, there is little empirical research that has examined the extent and nature of arrests, convictions and the sentences imposed on individuals who illegally possess firearms. Determining the degree to which states with more restrictive policies regarding firearm ownership and possession/carrying are potentially exacerbating racial disparity among those on probation, parole or in prison, as well as the disparity with respect to felony records, is critical research needed to expand our understanding. Although Illinois, and Cook County (Chicago) is discussed in detail, the implications of the research findings from Illinois apply to any state where a first-time conviction for the crime of illegal possession of a firearm can result in a felony conviction, or requires the imposition of a mandatory prison sentence. Allowing for discretion, and basing this sentencing decision on more objective risk factors, would ensure that unnecessary incarceration of young Black men is avoided. Not classifying this behavior as a felony, which carries significant, long-term consequences would not only limit the use of incarceration (i.e., a jail sentence could still be imposed), but would also prevent a life-long felony record for behavior that may be motivated by fear of victimization and also disproportionately impacts Black men.

Indeed, even when mandatory prison sentences are in place for someone who possesses a firearm and has a prior felony conviction, it must be recognized that the offenses that constitute a felony vary from state to state, have changed significantly over time, and, as a result of the war on drugs and other factors, disproportionately impacts Black men. For example, during the 1960s when the federal Gun Control Act of 1968 was passed, it was estimated that roughly 10% of Blacks had a felony record, compared to roughly 2% of non-Blacks; by 2010, 23% of Blacks, 33% of Black men versus 6% of non-Blacks had a felony record.[31] Again, allowing discretion to determine who poses a risk to public safety, rather than solely being determined by a prior conviction that may have nothing to do with a propensity to commit violence, would avoid unnecessary incarceration that primarily impacts Black men. Ideally, any alternative to incarceration would involve services and programming that addresses risk of victimization, trauma resulting from experiencing or witnessing violent crime victimization, to reduce the need to illegally possess a firearm for self-protection.

Finally, it is important to use language and terminology that more accurately reflects the behavior of illegally possessing a firearm (i.e., unlawful use of a weapon), when the firearm is not actually used in the commission of a crime of violence. In Illinois, for example, the crime of carrying a concealed handgun without a license is referred to as “Aggravated Unlawful Use of Weapon,” and as described earlier, is a felony that carries a mandatory 1-3 year prison sentence. Rhetoric used by practitioners and policy makers that conflates illegal firearm possession with “gun crime” or “violent gun crime” further contributes to the public misunderstanding of what illegal possession of a firearm implies, and what might be the most appropriate legal responses. This conflation results in the view that increased enforcement of firearm possession in high crime communities is actually identifying those who are driving the gun violence in the community, as opposed to a wide net being cast that ends up including a mix of people who may potentially be committing gun violence but also potential victims seeking a means for self-protection.

Click here to view a PDF of this essay.

Cite as: David E. Olson, Illegal Firearm Possession: A Reflection on Policies and Practices that May Miss the Mark and Exacerbate Racial Disparity in the Justice System, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 19, 2022), https://firearmslaw.duke.edu/2022/01/illegal-firearm-possession-a-reflection-on-policies-and-practices-that-may-miss-the-mark-and-exacerbate-racial-disparity-in-the-justice-system.

 

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

 

Notes

[1] Morgan, R. E. and Thompson, A. (2020): Criminal Victimization, 2020, U.S. Department of Justice, Bureau of Justice Statistics. https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/cv20.pdf

[2] Data generated from the Bureau of Justice Statistics, National Crime Victimization Survey, 1993-2019. https://ncvs.bjs.ojp.gov/year-to-year-comparison/characteristic

[3] Author’s computations using data generated from the U.S. Department of Justice, Bureau of Justice Statistics National Crime Victimization Dashboard (https://ncvs.bjs.ojp.gov/Home#hometopHome) and race-specific population figures from Morgan and Thompson (2020).

[4] Data generated from the Center for Disease Control and Prevention’s Web-based Injury Statistics Query and Reporting System (WISQARS) at https://wisqars.cdc.gov/fatal-reports. Rates are for non-Hispanic Blacks and whites.

[5] Ibid.

[6] Author’s analyses of Cook County Medical Examiner’s Office data. See https://datacatalog.cookcountyil.gov/d/cjeq-bs86/visualization

[7] Community area’s in Chicago were “mapped out by two University of Chicago sociologists, Robert E. Park and Ernest Burgess, in the late 1920s, grouping together neighborhood and surrounding areas. Except for the addition of O’Hare in 1965 and Edgewater in 1980, the boundaries of these regions have been kept unchanged.” These 77 community areas consist of hundreds of individual neighborhoods. Description from the Chicago Studies College of the University of Chicago, retrieved from https://chicagostudies.uchicago.edu/neighborhoods. These community areas are still used today as a way of presenting information about the city, including crime rates.

[8] Data generated from the City of Chicago Violence Reduction Dashboard. See https://www.chicago.gov/city/en/sites/vrd/home.html

[9] Morgan and Thompson (2020).

[10] Federal Bureau of Investigation (2020): Crime in the United States, 2019. U.S. Department of Justice retrieved from https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-27

[11] See Murder Accountability Project web-site at https://www.murderdata.org

[12] Author’s analyses of arrest estimates produced annually by the Federal Bureau of Investigation and published in their annual Crime in the United States series.

[13] Author’s analyses of arrest figures published through the Federal Justice Statistics Program: see https://bjs.ojp.gov/data-collection/federal-justice-statistics-program-fjsp#publications .

[14] Author’s analyses of arrest estimates produced annually by the Federal Bureau of Investigation and published in their annual Crime in the United States series.

[15] Ibid.

[16] Olson, D.E., Stemen, D., Foust, K., Guzman, C., Jacobs, L., Juarez, S., Michalak, H., Pankratz, A., Ward, A. (2021). Sentences Imposed on Those Convicted of Felony Illegal Possession of a Firearm in Illinois: Examining the Characteristics and Trends in Sentences for Illegal Possession of a Firearm. Center for Criminal Justice Research, Policy and Practice, Loyola University Chicago. See https://www.luc.edu/media/lucedu/ccj/pdfs/IllinoisGunPosessionArrestBulletinjuly2020[9718].pdf

[17] Olson, D.E., Stemen, D., Michalak, H., Juarez, S., Guzman, C., Ward, A., and Jacobs, L. (2020). Arrests in Cook County for Illegal Possession of a Firearm: Examining the Characteristics and Trends in Arrests for Illegal Possession of a Firearm within the Context of Crimes Involving Guns. Center for Criminal Justice Research, Policy and Practice, Loyola University Chicago. See https://www.luc.edu/media/lucedu/ccj/pdfs/CookCountygunpossessionbulletindecember2020.pdf

[18] Vasilogambros, M. (2021): No Permit, No Problem: More States Allow Residents to Carry a Hidden Gun. December 6, 2021. Pew Stateline. https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/12/06/no-permit-no-problem-more-states-allow-residents-to-carry-a-hidden-gun

[19] Illustrative of the near perfect correlation is a Pearson’s r statistic of .94 based on the author’s analyses of these data.

[20] Author’s analysis of Chicago Police Department data available through Chicago’s on-line data portal at https://data.cityofchicago.org/Public-Safety/Crimes-2021/dwme-t96c

[21] Fontaine, J., La Vigne, N., Leitson, D., Erondu, N., Okeke, C., and Dwivedi, A. (2018): We Carry Guns to Stay Safe: Perspectives on Guns and Gun Violence from Young Adults Living in Chicago’s West and South Sides. Washington, DC: Urban Institute. Retrieved from: https://www.urban.org/sites/default/files/publication/99091/we_carry_guns_to_stay_safe_1.pdf

[22] Author’s analyses of data obtained for Loyola’s study of those arrested for gun crimes in Illinois; Olson, D.E., Stemen, D., Michalak, H., Juarez, S., Ward, A., and Jacobs, L. (2020). Arrests in Illinois for Illegal Possession of a Firearm: Examining the Characteristics and Trends in Arrests for Illegal Possession of a Firearm within the Context of Crimes Involving Guns. Center for Criminal Justice Research, Policy and Practice. Center for Criminal Justice Research, Policy and Practice, Loyola University Chicago. See https://www.luc.edu/media/lucedu/ccj/pdfs/IllinoisGunPosessionArrestBulletinjuly2020[9718].pdf   

[23] Rosenmerkel, Sean, Durose, Matthew, and Farole, Donald (2009): Felony Sentences in State Courts,2006-Statistical Tables. U.S. Department of Justice, Bureau of Justice Statistics. https://bjs.ojp.gov/content/pub/pdf/fssc06st.pdf

[24] Reaves, B. A. (2013): Felony Defendants in Large Urban Counties, 2009-Statistical Tables. U.S. Department of Justice, Bureau of Justice Statistics. https://bjs.ojp.gov/content/pub/pdf/fdluc09.pdf

[25] Governor Quinn Signs Legislation to Reduce Gun Violence, Press Release, July 19, 2010. Retrieved from https://www.illinois.gov/news/press-release.8651.html

[26] Ibid.

[27] Author’s analyses of data obtained through the National Corrections Reporting Program (NCRP): United States. Bureau of Justice Statistics. National Corrections Reporting Program, 2000-2019. Inter-university Consortium for Political and Social Research, 2021-07-15. https://doi.org/10.3886/ICPSR38047.v1

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Shannon, S.K.S., Uggen, C., Schnittker, J., Thompson, M., Wakefield, S., and Massoglia, M. (2017): The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948-2010. Demography, 54: 1795-1818.




“The People”, Citizenship, and Firearms

The relationship between citizenship and gun rights continues to vex federal courts.[1] In turn, the answer to whether gun rights are citizen-only rights implicates other core constitutional protections. Accordingly, courts and commentators must critically re-examine the alarming judicial trend towards excluding noncitizens from the ambit of the Second Amendment.

The Court’s 2008 District of Columbia v. Heller opinion ignited this controversy when it – by fiat and without explanation – equated the “the people” protected by the second amendment with “law-abiding citizens”, “Americans,” and “members of the political community”.[2] Heller’s simultaneous expansion of the scope of the substantive right, while narrowing the class to whom it inures, has generated opinions from seven separate courts of appeals over the past nine years.[3] In each, unlawfully present noncitizens or nonimmigrants challenged the constitutionality of 18 USC § 922(g)(5), which criminalizes firearm and ammunition possession by persons without lawful status as well as most classes of nonimmigrants.[4] And, in each, federal courts uniformly upheld the provision against constitutional challenges. Surveying those opinions, judges either replicated Heller’s untheorized limitations on “the people”, or sidestepped it, only to accomplish the same result by trading on notions of immigrant criminality and lawlessness. Indeed, at least one appellate court rejected the noncitizen’s claim under circumstances that implicate Heller’s paradigm firearms use-case: Brandishing a firearm in defense of others at a home.[5]

This essay calls attention to the reasoning in the appellate court cases that have wrestled with Heller’s irresponsible citizenship talk.[6] By upholding § 922(g)(5), those courts permit the federal government to continue to bar several million people from exercising a right that Heller jealously guards for citizens. Moreover, if Heller’s rationale is taken to its limits, Congress could expand federal law’s reach beyond unauthorized and temporary migrants, to exclude lawful permanent residents as well, thus making criminal prohibitions coterminous with current deportation law based on firearms violations.[7] To be clear, the stakes here are not just about gun rights; noncitizens likely are less interested in possessing guns than U.S. citizens, as most hail from countries with rules and norms against personal firearm possession. Beyond arms bearing, categorically excluding noncitizens from “the people” of the Second Amendment entrenches and normalizes the denial of other critical constitutional protections to noncitizens.

In some of these post-Heller cases, judges double-downed on Heller’s citizenship specification.[8] In other work, I have chronicled the textual, doctrinal, and historical concerns with equating “the people” in the constitution with citizens.[9]  In brief, as a textual matter, such an interpretation is hard to square with the Constitution’s explicit use of the word “citizen” and “citizenship” in various provisions, as well its grant of power to Congress to transition noncitizens into citizens through naturalization. The Second Amendment however – like the Preamble, and First, Fourth, Ninth, and Tenth Amendments – references a more nebulous “the people.” Those references have generally been understood to be evocative of an unspecified collective, rather than denote citizenship status. Of course, it might be that the Second Amendment necessitates a different and more circumscribed definition than the phrase as used in other constitutional clauses. Yet, the campaign to divorce the right to bear arms from service to, or protection from, the state suggests exactly the opposite: That the Second Amendment is not to be interpreted differently than other constitutional protections.

As a doctrinal matter, United States v. Verdugo-Urquidez is the only modern case with an extended focus on “the people.”[10] There, the Court declined to allow a noncitizen brought into the U.S. for criminal proceedings to raise a Fourth Amendment challenge to the search of his home in Mexico by U.S. and Mexican authorities. Even so, the majority declined to limit “the people” protected against unreasonable searches and seizures to citizens. Instead, it described “the people” as referring to those with “who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community” (emphasis added). This nebulous and indeterminate formulation rejects the idea that constitutional rights turn on immigration status alone. Heller conspicuously substitutes the phrase “political” for “national”, contradicting Verdugo-Urquidez while claiming to affirm it.

Finally, many historical exclusions of foreigners from gun rights were premised on loyalty concerns during wartime, or along expressly racial lines.[11] Indeed, the most prominent linkage of gun rights to citizenship finds voice in the anti-canonical case of Dred Scott v. Sandford. The Dred Scott Court narrowed several important constitutional protections to citizens, but only by conjuring the transitive relationship between citizenship, race, and constitutional rights (including gun rights).[12] 

Perhaps because Heller’s narrowing of “the people” is so thinly or odiously supported, other appellate courts confronted with the constitutionality of § 922(g)(5) have instead assumed noncitizens (including unauthorized noncitizens) can raise Second Amendment challenges.[13] Nevertheless, they upheld the provision by purporting to apply the type of scrutiny courts have applied to other regulations in the wake of Heller. With various formulations, lower federal courts have evaluated firearms and ammunition regulations under heightened scrutiny, toggling between strict and intermediate scrutiny depending on the nature of the restriction.[14] Invoking those judicial tests, these opinions held that because the noncitizens covered in 922(g)(5) were not “law-abiding”, Congress could criminalize their possession of firearms or ammunition.

This alternate approach is beset by its own doctrinal and conceptual difficulties. Primarily, it allows the government to trade on innuendo about immigrant criminality and tendency to lawless behavior. Moreover, by defining millions of noncitizens as lawless, this tack amounts to the same as equating “the people” with “citizens” for purposes of assessing §922(g)(5). In sum, although these opinions purport to apply a more nuanced approach, they still categorically exclude the same millions of individuals from second amendment protection.

First, as a doctrinal matter, the type of ends-means fit in the courts’ analyses does not resemble the heightened scrutiny used in other areas of constitutional analysis. Rather than require substantiation of the claim that unauthorized noncitizens are not – as a class – law-abiding in ways that relate to gun possession, these opinions indulge Congress’ judgment about the dangerousness or tendency to lawlessness of persons lacking lawful or permanent immigration status.[15] But that form of deference, and its tendency to relieve the government of its burden, are precisely what heightened scrutiny is intended to reject. In an opinion concurring in judgment with the Second Circuit panel in United States v. Perez, Judge Menashi sharply critiqued the panel precisely for this slippage into deferential rationality review under the guise of heightened scrutiny.[16]

Indeed, a more faithful application of heightened scrutiny would have to contend with two concerns. First, available empirical evidence suggests that noncitizens – including unlawfully present noncitizens – are less likely to commit crimes, including violent crimes, than native born.[17] Second, unlawful presence, by itself, is legally distinct from the “long-standing” exclusions Heller purports to permit for “felons and the mentally-ill.” Unlawful presence is not a criminal violation, let alone a felony. If the legal violation of unlawful presence is sufficient to make that connection, the government’s ability to exclude several classes of persons – both citizens and noncitizens – with prior administrative or civil violations would be greatly expanded.[18] Other opinions avoid reliance on status alone, but suggest that the nature of unlawful presence makes those individuals more likely to evade detection and thus harder to identify and track.[19] While such justification is not implausible, heightened scrutiny requires more of the government than articulating any conceivable, post-hoc rationale. Further, treating unlawful status as dispositive fails to account for the potential fluidity of that status, including the multiple possibilities for an unauthorized noncitizen to obtain lawful permanent residency, and eventually, citizenship.

Perhaps recognizing the obvious frailty of equating unlawful presence with the type of lawlessness relevant to firearms possession, some appellate judges attempted to finesse the connection between immigrants and criminality by featuring the criminal background of the noncitizen-defendant. For example, some opinions mention possible prior gang affiliations or surface uncharged criminal allegations. But, if unlawful status itself triggers the exclusion (as these opinions suggest), such biographical details are extraneous, and appear designed solely to paint the noncitizens as inherently dangerous in ways relevant to firearms possession. In comparison, a noncitizen’s lack of criminal history,[20] use of firearms for work purposes,[21] possession of minimal amounts of ammunition without a gun,[22] or use of a firearm in defense[23] failed to mitigate or overcome the deficit created by immigration status alone. This divergent treatment of defendants’ prior history indicates that for noncitizens, criminal background is a one-way ratchet, only useful when it can help courts link immigrant status implicitly to violent criminality.

In sum, the current judicial approaches to this set of post-Heller cases – one that narrows “the people” and the other that hyperbolizes the lawlessness of unauthorized noncitizens – are blinkered interpretations of the Second Amendment.

To be clear, although I argue that these rationales are untenable, I do not approach this debate with a deregulatory agenda regarding firearms. My central concern is the way in which these interpretations facilitate the general degradation of constitutional rights for the tens of millions of noncitizens in our polity. Heller’s irresponsible talk of citizens, and the subsequent lower courts that have uncritically adopted it, threaten to widen that inequity if left unchecked. The narrowing of Second Amendment rights normalizes a decades long project by some federal judges, like Justice Alito, incrementally to strip noncitizens of other vital constitutional protections.[24] My examination of this less-heralded set of post-Heller Second Amendment cases shines a light on that exclusionary campaign.

Click here to view a PDF of this essay. 

Cite as: Pratheepan Gulasekaram,“The People”, Citizenship, and Firearms, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 13, 2022), https://firearmslaw.duke.edu/2022/01/the-people-citizenship-and-firearms.

 

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

 

Notes

[1] Here, I use the term citizenship in the legal sense, differentiating between “citizens” and “non-citizens” as a citizenship or immigration status. Citizenship may also be used in the broader sense, to connote full and complete forms of membership versus “second-class” citizenship, in which those with the status of citizenship are nevertheless treated as less than full members of a polity. Although my perspective here has implications for the latter, I am centrally concerned with the former.

[2] 554 U.S. 570, 580-81, 584, (2008).

[3] United States v. Perez, 6 F.4th 448 (2d Cir. July 29, 2021); United States v. Torres, 911 F.3d 1253 (9th Cir. 2019); United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir.2015); United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012); United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012); United States v. Flores, 663 F.3d 1022 (8th Cir. 2011); United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011). These challenges all involved unlawfully present noncitizens. One other opinion from the Ninth Circuit Court of Appeals, United States v. Singh, 979 F.3d 697 (9th Cir. 2020), upheld the federal law against a challenge by a nonimmigrant.

[4] 18 U.S.C. § 922(g)(5) (“It shall be unlawful for any person, who, being an alien (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa…..”). The term “nonimmigrant” under federal immigration law means noncitizens lawfully present in the United States for limited duration and/or for a specific purpose; under the statute, “immigrant” refers to lawful permanent residents (green card holders). 8 U.S.C. § 1101(a)(15). The exception in 18 U.S.C. § 922(y)(2) referenced in § 922(g)(5)(B) exempts nonimmigrants who have been admitted for hunting or sporting purposes, or others with a permit for carrying a firearm.

[5] See, e.g., Perez, 6 F.4th at 449-50 (noting, in recitation of facts, that unlawfully present noncitizen borrowed a firearm to deter a group of armed individuals approaching a gathering at a private home).

[6] See Joseph Blocher, United States v. Perez and Doctrinal Development, Duke Center for Firearms Law Blog, Sep. 15, 2021.

[7] 8 U.S.C. § 1227(a)(2)(B) (classifying “any alien” convicted of any firearms law as potentially deportable).

[8] See Portillo-Munoz, 643 F.3d at 442 (holding that “the people” did not include unlawfully present noncitizens); accord, Flores, 663 F.3d at 1023 (citing Portillo-Munoz); Perez, 6 F.4th at 456 (Menashi, J., concurring) (concluding that unlawfully present noncitizen could not raise a Second Amendment claim).

[9] My prior work has critiqued this interpretative move as incompatible with an individual right/self-defense reading. I concluded that that either the amendment is connected to state defense or defense from the state, in which case courts may plausibly limit the right to bear arms to citizens, or the right is truly centered on individual self-defense, rendering categorical prohibitions based on immigration status difficult to justify. See Gulasekaram, Guns and Membership in the American Polity, 21 Wm. & Mary B Rights J. 619 (2012); “The People” of the Second Amendment, 85 N.Y.U. L. Rev. 101 (2010); Aliens with Guns, 92 Iowa L. Rev. 891 (2007).

[10] United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (denying, on the grounds that he was not part of “the people” of the Fourth Amendment, a Mexican national’s right to raise a Fourth Amendment challenge to search of his residence in Mexico by U.S. and Mexican law enforcement during his prosecution in U.S. federal court).

[11] See, e.g., Angela R. Riley, Indians and Guns, 100 Geo. L. J. 1675 (2012); Robert Churchill, Gun Regulation, the Police Power, and the Right to keep Arms in Early America, 25 Law & Hist. Rev. 139 (2007); Saul Cornell & Nathan DeNino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev.487 (2004) (noting firearms laws conditioned on loyalty oaths, and concerning possession by particular religious minorities); Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 Const. Comment. 221 (1999); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Lee Kennett & James LaVerne Anderson, The Gun in America: The Origins of a National Dilemma (1975)

[12] Dred Scott v. Sandford, 60 U.S. 393, 416-17 (1856):

“For if [‘members of the African race’] were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” (emphasis added)

[13] Perez, 6 F.4th at 453 (opining that there was no definitive answer to whether unlawfully present noncitizens were excluded from “the people”, and instead assuming, without deciding, that such noncitizens could raise Second Amendment challenges); accord, Torres, 911 F.3d at 1261; Meza-Rodriguez, 798 F.3d at 670; Huitron-Guizar, 678 F.3d at 1168.

[14] See, e.g., Perez, 6 F.4th at 453-54.

[15] See, e.g., Torres, 911 F.3d at 1264.

[16] Perez, 6 F.4th at 457, 459 (Menashi, J. concurring in judgment) (arguing that the majority is “watering down” intermediate scrutiny, and critiquing the majority’s deference to Congress’ policy judgments and assumptions regarding a conclusion that may end up being false).

[17] Ruben Rumbaut, Katie Dingeman, Anthony Robles, Immigration and Crime and the Criminalization of Immigration, in Routledge International Handbook of Migration Studies (Gold & Nawyn, eds. 2018). Note that one does not need to rely on the particular conclusions of this research; for purposes of my critique, the critical question is whether such empirical evidence should matter to courts engaged in forms of heightened scrutiny.

[18] Of course, illegal entry can be charged as a misdemeanor, and illegal re-entry can be charged as a low-level felony. But even under those circumstances, Congress does not always consider those immigration crimes to be persistent legal disabilities. In the past, federal deportation law included a statute of limitations, such that unlawful entry could not be charged after five years and the person could not be removed. Even today, the immigration code provides several statutory basis for overcoming unlawful status, including through unlawful entry, and regularizing immigration status and later, naturalizing.

[19] See, e.g., Torres, 911 F.3d at 1264.

[20] See e.g., Meza-Rodriguez, 798 F.3d at 666 (not mentioning criminal history apart from incident giving rise to §922(g)(5) prosecution); Portillo-Munoz, 643 F.3d at 439 (noting that noncitizen’s presentence report did not report any prior criminal history or arrests).

[21] Portillo-Munoz, 643 f.3d at 439 (prosecution of noncitizen working on ranch who stated that he possessed firearm to protect chickens from coyotes).

[22] Meza-Rodriguez, 798 F.3d at 666 (prosecution based on possession of a .22 caliber cartridge).

[23] Perez, 6 F.4th at 450 (prosecution of noncitizen brandishing firearm to deter armed intruders)

[24] Thuraisiggiam v. Dep’t of Homeland Security, 140 S.Ct. 1959 (2020) (Alito, J.) (denying habeas and due process rights to unlawfully present person in expedited removal proceedings); Kansas v. Garcia, 140 S.Ct. 791 (2020) (Alito, J.) (upholding state criminal prosecution of noncitizens for fraud in employment procurement against preemption challenge); Hernandez v. Mesa, 140 S.Ct. 735 (2020) (Alito, J.) (refusing to extend Bivens to claim of parents of a Mexican child who shot and killed by U.S. Border Patrol agent who fired across the border at the child); Jennings v. Rodriguez, 138 S.Ct. 830 (2018) (Alito, J.) (casting doubt on due process challenges to immigrant detention without bond)




New RAND Report on Gun Policy Disagreement

The RAND Corporation just released a new report, The Magnitude and Sources of Disagreement Among Gun Policy Experts. Both Center faculty co-directors, Joseph Blocher and Darrell Miller, participated as experts. The Report’s key findings include: (1) experts were divided on whether they favored more permissive or less permissive policies, with sharp differences on select laws like assault weapon bans, gun licensing, and registration, (2) not all policies generated such diametrically opposed views; many experts agreed on largely law enforcement solutions like various prohibitor possessor laws and also child access prevention laws, and (3) experts prioritized laws that would reduce firearm homicides and suicides, suggesting that more evidence on different proposals’ effectiveness could generate more agreement. 

Here’s the overview of the Report: 

The effects of firearm policies, though frequently debated, have historically received less-rigorous scientific evaluation than have the effects of other policies affecting public safety, health, and recreation. Despite improvements in recent years, there is still limited evidence of how some gun policies that are frequently proposed or enacted in the United States are likely to affect important outcomes (such as firearm homicides, property crime, and the right to bear arms). In areas without strong scientific evidence, policymakers and the public rely heavily on what policy advocates or social scientists believe the effects are most likely to be.

In this report, part of the RAND Gun Policy in America initiative, RAND researchers describe the combined results from two fieldings (2016 and 2020) of a survey of gun policy experts. Respondents were asked to estimate the likely effects of 19 gun policies on ten outcomes. The researchers use these and other responses to establish the diversity of beliefs among gun policy experts, assess where experts are in more or less agreement on the effects of gun laws, and evaluate whether differences in the policies favored by experts result from differences in experts’ assumptions about the policies’ effects or differences in experts’ policy objectives. The analysis suggests that experts on different sides of the gun policy debate share some objectives but disagree on which policies will achieve those objectives. Therefore, collecting stronger evidence about the true effects of policies is, the researchers believe, a necessary step toward building greater consensus on which policies to pursue.




Scholarship Highlight: Felons, Bump Stocks, and More

Here are some new and interesting firearms law and adjacent pieces of scholarship published recently, including some really insightful student notes and an especially timely and in-depth look at the bump stock ban.

From the Introduction:

If a law professor dreamed of a case that could touch on the most substantial issues taught in administrative law classes, he would dream of Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives. The case runs the gauntlet, featuring issues of statutory construction and deference, the procedural requirements under the Administrative Procedures Act (“APA”), the Appointments Clause and statutory conflicts between vacancy statutes, standing, exceptions to Chevron deference including questions of waiver, and allusions to many more textbook issues. Because some of these issues are less settled than others, a companion case–Aposhian v. Barr, features some alternative outcomes such as the lower court characterization of the agency action at issue as interpretive, in opposition to the preliminary findings in Guedes, where the court held the Bump-Stock Rule was legislative. Both cases reviewed challenges to a final rule published by the Department of Justice and Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). When the Supreme Court denied a writ of certiorari for injunctive relief in Guedes, one Supreme Court Justice issued a statement raising more administrative law questions and challenging some administrative law presumptions that, if borne out, could further unsettle substantial administrative law issues.

At the heart of the dream case lies a dispute over the definition of “machine gun” and a rule promulgated by the agency to clarify the meaning of two terms contained in the statutory definition that are not otherwise defined. This article attempts to address all of the major administrative law issues raised in Guedes and their potential outcomes by walking through a Chevron analysis, starting with (1) whether the Bump-Stock Rule satisfies Chevron step zero, then looking at (2) whether any exceptions prevent the application of Chevron, and ending with (3) whether the Bump-Stock Rule satisfies the test in Chevron, thus warranting Chevron deference. Under existing precedent, Chevron deference applies to the Bump-Stock Rule. This article tries, however, to anticipate the nuanced (or watershed) deviations at each stage of the analytical process that present themselves to the Supreme Court if either case (or both) come before the Court on their merits.

From the Abstract:

Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute’s language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners.

This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to the Civil Rights Movement. Next, Part II outlines the ways different circuits have interpreted § 924(c), demonstrating how those interpretations disadvantage Black defendants. Finally, Part III puts forth two proposals for reform: interpreting § 924(c) more narrowly, or simply removing the language at issue from the GCA. These reforms would reduce racial disparities in the enforcement of § 924(c). They would also reaffirm the right of Black Americans to keep and bear arms for self-defense.

From the Abstract:

The scope of government restrictions on the sale, possession, and use of firearms is currently one of the most hotly contested political issues facing the United States. Opponents of gun control legislation argue that stringent government restrictions on firearms violate the Second Amendment’s guarantee that “the right of the people to keep and bear Arms, shall not be infringed.” In contrast, proponents of gun control legislation argue that vigorous restrictions on firearms are essential to maintain public safety and curtail gun violence.

Despite being at the forefront of political debate, the Supreme Court speaks infrequently on the scope of the Second Amendment, having only published three Second Amendment opinions. Because of the Court’s silence on the scope of the Second Amendment, the circuit courts of appeals have struggled with Second Amendment issues.

One such Second Amendment issue that has confounded the circuit courts of appeals is the validity of as-applied challenges to 18 U.S.C. § 922(g)(1), the federal law that makes it unlawful for persons convicted of a felony to possess, purchase, or sell a firearm. Every circuit court has  upheld 18 U.S.C. § 922(g)(1) on its face. A circuit split, however, continues to persist on the issue of whether a convicted felon can challenge the law as unconstitutional when applied to the individual’s specific circumstances.

This circuit split has led to inconsistent application of § 922(g)(1). Because the circuit split surrounding § 922(g)(1) leads to inconsistent application of the felon-in-possession prohibition, as-applied challenges should not be entertained. Not only is this consistent with the Supreme Court’s Second Amendment jurisprudence, but as-applied challenges should also always fail the two-step analytical framework used by most circuits. Furthermore, by not entertaining as-applied challenges, 18 U.S.C. § 922(g)(1) will be applied consistently and fairly across the United States.

From the Abstract:

Federal circuit courts of appeal often disagree about how to interpret the United States Sentencing Guidelines. One contentious guideline is the physical restraint sentencing enhancement. This enhancement increases the sentence of a defendant who physically restrained a victim during a crime. Circuit courts disagree about whether to apply this enhancement to a defendant who points a gun at a victim and tells that victim not to move. Four circuit courts interpret the physical restraint enhancement narrowly and only apply it when a defendant does something highly similar to tying or locking up a victim. Three circuits interpret the enhancement very broadly and uphold the enhancement’s imposition on defendants who do no more than point a gun and instruct a victim not to move. Three other circuits interpret the enhancement broadly but have not explicitly ruled on whether it applies to a defendant who brandishes a firearm and issues a threat. Two circuits take an approach between the other circuits. This Note argues that the text of the enhancement, the relevant commentary in the Guidelines, existing sentencing options, and the American judicial system’s preference for liberty require a narrow interpretation of the physical restraint enhancement. Courts should only apply the enhancement when a defendant restrains a victim by applying force that touches the victim or by confining the victim in a space that appears locked. Regardless of which interpretation is currently correct, the U.S. Sentencing Commission should clarify this issue.




Range v. Lombardo: Is the Third Circuit’s Approach to As-Applied Challenges Too Messy?

In the recent case Range v. Lombardo, a federal district court in Pennsylvania rejected an as-applied Second Amendment challenge to the federal felon-in-possession statute, 18 U.S.C. §922(g)(1). The case is significant for understanding the Third Circuit’s evolving approach to Second Amendment challenges; it also highlights the conceptual quagmire of applying Second Amendment protections (or not applying statutory prohibited person status) to those with convictions for nonviolent felonies or misdemeanors. The teacher in me loves this case because it is clear enough to be useful for teaching law students about how courts wrestle with multi-factor tests, tiers of scrutiny, shifting burdens of proof, and 50-state statutory comparisons to ascertain a “consensus” view – sometimes all at once.  Note that this case was an action for declaratory judgment rather than a criminal prosecution.

Bryan Range is what lawyers call a “sympathetic plaintiff.” In 1995, he pled guilty to one charge of making a false statement (an omission, in fact) on an application to receive food stamp assistance.  At the time, Range was supporting his wife and three children by mowing lawns (earning ~$300/week).  His wife applied for food stamps, a need-based government assistance program, but when she completed the application form, she did not include her husband’s meager income from mowing lawns.  Both spouses signed the application, though Mr. Range later claimed he did not read it before signing it.  Nevertheless, when the government agency discovered the omission, Mr. Range accepted responsibility and acknowledged that it was wrong to understate the family’s income.  The state charged Mr. Range, but not his wife, with Pennsylvania’s version of welfare fraud, which at the time was a first-degree misdemeanor carrying a potential sentence of 5 years imprisonment.  As part of his plea agreement, the court sentenced Range to three years’ probation and nearly $3000 in restitution, fines, and costs (but no jail time).  The judge did not tell Range that he would be ineligible to own a firearm as a result.  In the years since, Range had no other criminal history apart from minor traffic and parking infractions and an overdue fee on his fishing license. 

At some point, Range tried to buy a firearm from a licensed dealer, but the background check system denied the purchase; the store employee guessed that it must be a “computer error” and suggested he try again another day.  Instead, his wife, who had no criminal record, bought a hunting rifle, and gifted it to her husband.  A few years later, Range again tried to buy a gun from a local dealer, again failed the background check, and received the same explanation (“…probably a computer error…”) from the store employee.  This time, he looked into it and discovered that his misdemeanor conviction from the 1990’s barred him from purchasing any firearms.  He sold the one firearm he then owned and brought suit to challenge his firearm disability.  (Alan Gura, who argued the Heller case before the Supreme Court, is one of the attorneys representing Range).  The court’s opinion from August 30, 2021 is a ruling on cross-motions for summary judgment; the court sides with the government.

The court begins its analysis by mentioning that Heller left several unanswered questions, but overall requires a “delicate” balancing test in Second Amendment cases. It then proceeds to Third Circuit precedent.  The Third Circuit, in Binderup v. Attorney General, broke from the majority of circuits on how to handle as-applied challenges to the federal felon-in-possession law, especially as it applies to state misdemeanor convictions (the statute includes those with (most) state misdemeanor convictions that carry a potential sentence of more than two years as a bar to gun possession).  Binderup created the impression, I think, that the Third Circuit is more favorable to those with nonviolent criminal convictions who seek to challenge the firearm prohibition in their individual case.  The opinion in Range, however, casts some doubt on this idea, and illustrates how complicated the Third Circuit’s approach really is.

Judge Pratter then observes that Binderup had multiple opinions, and no clear majority.  Following the Supreme Court’s 1977 decision in Marks v. United States, courts should follow the “median” position in a case where none of the opinions garner a majority of the appellate panel. For Binderup, this means following Judge Ambro’s opinion.  The court then proceeds with a complicated series of steps for analyzing a Second Amendment challenge.

First, the court applies the two-step (or two-tiered) approach from United States v. Marzzarella to determine if a the conviction was for a “serious” crime.  If the crime was indeed “serious,” then (under Marzzarella) the Second Amendment does not even apply – the individual is outside the scope of protection of the Amendment, because the individual is an “unvirtuous citizen.” On the other hand, if the conviction was for a “non-serious” misdemeanor or felony, the question is whether the law impermissibly infringes on the individual’s Second Amendment rights.  Judge Pratter notes that this inquiry involves burden shifting – if the challenger succeeds at the first step, the burden shifts to government to justify law under (some form of) heightened scrutiny. 

Marzzarella adopted a four-factor test to determine if crime is “serious”: (1) whether the conviction was classified as a misdemeanor or a felony, (2) whether the criminal offense involves violence or attempted violence as an element, (3) the sentence imposed, and (4) whether there is a cross-jurisdictional consensus as to the seriousness of the crime.”  The Third Circuit’s subsequent decision in Holloway v. Attorney General added a fifth: “the potential for physical harm to others.”  The government conceded in this case that Range wins on four of the five factors – all except the “consensus of other jurisdictions.”  The parties also agreed that around 39 jurisdictions consider food stamp fraud a felony, under a variety of statutory approaches.  Range had the burden to show that there is not a consensus among jurisdictions that his crime is “serious.”

Range tried to overcome this unfavorable ledger by arguing that the court should use as comparison only those states that specifically criminalize “false statement regarding food stamps,” rather than including it under general theft or fraud statutes; this would have removed 15 of the 39 unfavorable states, leveling the comparison from his perspective.  He could offer no legal authority to support such a move, but instead argued from the standpoint of fairness, compassion for the poor, etc.  The court expressed sympathy with this idea, but explained:

But under our system of government it is within the prerogative of every state to choose between having a more complex criminal code that defines its statutes narrowly, and more general criminal statutes that are accompanied by a greater range of possible punishments.  Nothing in Binderup, or any opinion applying its multifactor test, provides that a state’s choice to classify conduct like Mr. Range’s as a felony is irrelevant merely because the drafters of the laws in any given state choose to define crimes with more general language.

In a section of the opinion that I would find useful as a teaching tool in the classroom, the court then discusses a perennially thorny issue with multi-factor tests: whether one factor can outweigh all the others (“a set of elements that all petitioners must meet”), or if the factors constitute a balancing test, such that courts should weigh how the factors line up in a given case.  On this issue, Judge Pratter clarifies that even though the original Binderup plurality described this as a “balancing test,” more recent Third Circuit decisions in Holloway and Folajtar v. Attorney General allowed the government to prevail by winning on just one of the factors, thus making a single factor dispositive.  In a sense, this is the classic “rules-versus-standards” problem with judge-made law; through the lens of that rubric, the court here concludes that the five factors are rules, not standards.

Finally, Range argued that even if one factor could cancel out all the others, that factor should be Pennsylvania’s own classification of the original crime as a felony or misdemeanor, as the court did (in the government’s favor) in Folajtar.  The court again disagrees; even though the Folajtar majority found this one factor dispositive enough to reject a Second Amendment challenge, it did not address whether this was because the factor was singularly important compared to the others, or if the plaintiff simply needs to prevail on all five factors – as this court concludes.  In the end, the court decided that Range’s previous crime puts him outside the protection of the Second Amendment, so the firearm disqualifier applies.

The treatment of the factors as elements – that is, each one being independently dispositive – is a significant step in the development of Second Amendment doctrine in the Third Circuit, if the Court of Appeals upholds it.  A second significant doctrinal development in this case is the recognition of a sixth factor (inferred from Folajtar): “And it is not merely each state’s determination of a statute’s seriousness that the Court is considering. Congress has also determined that the conduct in question was sufficiently serious to justify disarmament.  This fact operates as a powerful “sixth factor” present in every case, weighing in favor of the Government.”  The difference between Range and Folajtar is that the latter involved a felony conviction for violating a federal law, so it was possible to read the language in Folajtar about Congress designating the crime as “serious” as relating to federal criminal statutes, but not necessarily state law violations.  Range involves a prior conviction under Pennsylvania state law.  The “Congress-says-it’s-serious” language in Range refers to the felon disarmament statute itself, even as applied to state-law convictions.  If nothing else, Range crystalizes the rule in Folajtar in a way that seems to make as-applied challenges to §922(g)(1) inoperative in the Third Circuit, at least for felony convictions.

I argue in a forthcoming article (discussed on this blog here) that analyzing these cases based on whether an individual’s conviction was for a “serious” crime or a “crime of violence” is an unworkable approach requiring overly-complex cross-jurisdictional statutory comparisons, and this case seems to illustrate my point nicely.  The arguments raised by Range – and the rebuttal points by the government and Judge Pratter – are reminiscent of the arguments that arise in cases under the ACCA, §924(c), and the sentencing guidelines for classifying offenses as “crimes of violence,” with often inconsistent and counter-intuitive results.  The ambiguity in the text and difficulty in the task are among the reasons the Supreme Court has struck down the so-called residual clauses in ACCA and §924(c) in recent years.  The district court here had to apply a two-step process under Marzzarella to get to a five-factor test, one of which requires a 50-state comparison of statutes, with wide variation in how states structure their criminal codes.  Some codify crimes in standalone code sections, while many others include a range of possible offenses under general headings like “theft” and “fraud.”  States have incompatible systems for both gradation of offenses (e.g., “Class A” or “Class B” versus “First Degree” or “Second Degree”) and classification of felonies versus misdemeanors.  For this reason, I am skeptical about jurisprudential attempts to narrow, or find exceptions for, the federal prohibited person laws under §922(g).  In the end, even an arguably sympathetic petitioner like Range will often fail to obtain the desired relief, but the courts must wander through an analytical maze to reach the same conclusion that it would have reached by simply accepting and applying the federal statute at face value – and relying on Heller’s presumption that longstanding prohibited person laws are valid under the Second Amendment.




Pieces Reviewing Ayres and Vars’ Weapon of Choice

The Quinnipiac Law Review recently published a series of essays from a symposium discussion of Ian Ayres and Frederisk Vars’ recent book, Weapon of Choice: Fighting Gun Violence While Respecting Gun RightsI wasn’t able to find publicly accessible copies, but some excerpts are below (including from our own Joseph Blocher). 

  • Joseph Blocher, Two Concepts of Gun Liberty, 39 Quinnipiac L. Rev. 363 (2021)

From the Article (footnotes omitted):

Gun rights are celebrated by many as a form of liberty–“America’s First Freedom,” as the title of the NRA magazine puts it. But what kind of liberty is at stake, and for whom? Ian Ayres and Fredrick Vars’ Weapon of Choice provides a novel and important approach to those questions by proposing a system by which people can voluntarily restrict their own access to arms. The lessons it suggests are relevant to discussions of gun rights and regulation more broadly; namely, that gun rights can be understood as both positive and negative liberties (to borrow Isaiah Berlin’s famous frame from “Two Concepts of Liberty”), and that efforts to regulate guns can also be understood in those terms.

Putting liberty on both sides of the scale is important. The gun debate in the United States is usually framed as if it is a matter of constitutional liberty on one side–that of gun owners–and “policy” interests on the other. As a matter of litigation, this is not necessarily a losing frame for would-be regulators, since constitutional rights can sometimes be restricted if the government can show that the regulation in question is adequately tailored to achieving a sufficiently weighty governmental purpose. And, since no one doubts the importance of the governmental purpose in lessening the catastrophic number of fatal gun injuries (about  40,000 in 2018), the question typically becomes whether any particular law does so effectively enough. In the vast majority of litigated Second Amendment cases, the answer has been “yes.”

But the “liberty versus policy” frame nonetheless distorts constitutional litigation and public discourse, effectively stacking the deck–legally and rhetorically–against efforts to reduce gun harms.

  • Stephen G. Gilles, Weaponized Associational Choices and Second Amendment Rights, 39 Quinnipiac L. Rev. 371 (2021)

From the Article (footnotes omitted):

I commend Ian Ayres and Fredrick Vars for writing Weapon of Choice with the goals of reducing gun violence and gun deaths, while simultaneously finding common ground between gun-control advocates and defenders of gun rights. Part I of their book promises to achieve both goals: Ayres and Vars focus on gun suicides–which account for “[w]ell over half” of gun deaths in America. They have an ingenious plan to reduce gun suicides by enabling persons who are worried about their own suicidal tendencies to waive their rights to purchase–or even continue to own–a gun, using a state-sponsored registry that will feed into the federal background check system. Enabling people to protect themselves from their own suicidal impulses is a great idea, and one that gun-rights supporters should embrace.

…The subject of this essay, however, is Part II of Weapon of Choice, which I will argue cannot possibly meet its authors’ goals. In Part II, Ayres and Vars propose several laws that they argue will reduce gun violence by “Harnessing Others’ Association Preferences.” I will focus on their broadest and–from the standpoint of Second Amendment rights–most burdensome proposal, which they refer to as the “email option.” After summarizing how the email option would work, I will argue that the proposal is unconstitutional, in part for reasons that would also make it bad public policy. Finally, I will explain why proposals such as the “email option” are far more likely to further polarize the gun-control debate than to build consensus on how best to reduce gun violence.

  • Brannon P. Denning, A Skeptical Look at Associational Marketplaces and Gun Ownership, 39 Quinnipiac L. Rev. 397 (2021)

From the Article (footnotes omitted):

Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights is an important and timely addition to a polarized and tired debate about gun violence in the United States. Ian Ayres and Fred Vars offer concrete policy proposals beyond the usual jejune calls to “close the gun show loophole,” “ban assault weapons,” or implement some large-scale confiscation program. The bottom-up approach advocated by the authors holds the promise that some proposals might be adopted in some states and furnish data on which, if any, could be scaled up nationwide. It is a very important contribution to the literature on stopping gun violence and though the authors tend to favor more regulation, they write for the most part with an understanding of, and respect for, the fact that tens of millions  of Americans cherish the right to keep and bear arms guaranteed by the Second Amendment.

Specifically, the Ayres & Vars’ proposals to reduce gun suicides are an important contribution to an aspect of the gun violence problem in the U.S. that has long been overlooked in debates over gun control. Likewise, they make a valuable contribution to debates over how best to make sure that guns do not belong in the hands of people who may not legally possess them or whose mental state makes gun possession by them a hazard to public safety. The middle third of the book also proposes the creation of “associational marketplaces” that would require certification of non-possession a condition of engaging in certain types of private contracts, such as leases. I will argue here that these associational marketplaces have constitutional problems that are soft peddled by Ayres and Vars. In addition, I think that widespread implementation of association marketplaces for gun ownership and non-ownership have potentially harmful societal implications.

Part I of this essay briefly describes how Ayres and Vars envision the societal marketplaces functioning, including the limit that the authors would place on their use. Part II then sketches some potential constitutional problems; Ayres and Vars concede that constitutional values are implicated, but ultimately dismiss them as overstated. I find their dismissal of the values they say are implicated a little too breezy, and I think that they overlook other, possibly more serious, constitutional problems with their proposal. Part III then argues that whatever the merits of the constitutional case against associational marketplaces, there are implications for society as a whole that counsel against their adoption.

  • Katrina Brees, The Story Behind Donna’s Law, 39 Quinnipiac L. Rev. 359 (2021)

From the Article (footnotes omitted):

As a teenager, I was the first to diagnose my mother as bipolar. At the time, it was called Manic Depression, and I found her extreme episodes labeled as such in a psychology book I found at the local library. She would be voluntarily hospitalized a dozen or so times more over the years.

June 26, 2018 we ran out of time.

She searched on her phone for “gun stores New Orleans” and left her house for the gun shop. Her partner called the police, hoping they would be able to intercept the inevitable. She purchased a Smith and Wesson 38  and a box of pink bullets that claimed to support breast cancer. She drove to the park and shot herself. It was all very quick.

Two days after her suicide, I posted this on my Facebook page:

My mom bought a gun in New Orleans on Tuesday and drove to the Tree of Life and opened the box and shot herself. I’m telling you all because gun control is not only about homicide, it is twice+ as likely to be a suicide. People suffering from bipolar and depression have no way to protect themselves from a suicidal gun purchase in Louisiana. I wish my mom could have registered herself as being unfit to buy a gun. She would have signed it years ago to protect herself and our family. I hope one day we can give people with bipolar and depression a better chance at living, but we are a long way off. I’m sorry to be so raw, I feel raw. I can’t believe how impossible it was to get my mom help and how easy it was for her to buy a gun. RIP Mama Donna Nathan. It’s OK to share this if you like.

The post went viral. The media helped with sharing my story and supporting my efforts to create a voluntary registry to prevent suicidal gun purchases. I had recently been hired by the Republican party as a sculptor to create art for their convention. My employer saw the articles and promised to help find me a sponsor. As the former head of the Louisiana Republican Party, he was very helpful. The convention would prove to be an amazing opportunity. I was able to make the connections I needed and get bipartisan support for Donna’s Law. While it did not pass the House in Louisiana, it has since passed in Virginia and I look forward to supporting families across America as they attempt to adopt this life saving tool.




Scholarship Highlight: New Work on Who the Second Amendment Protects

The past few weeks have led to a host of new scholarship, including ones that centrally focus on issues of who the Second Amendment protects.

Abstract:

Once mentally ill does not mean always mentally ill. This underlying premise is not only scientifically accepted, but has been long recognized in the history and tradition of our common law. However, rather enigmatically, two circuit courts have deviated from this long understanding to find that once an individual has been classified as mentally ill, that classification is permanent. This flawed understanding has not only created a rupture in our Second Amendment jurisprudence, but it has also produced a significant circuit split between three circuits, in which neither the conclusions nor analyses are uniform. Notwithstanding the judicial disarray, federal law historically—and currently— poorly addresses this issue as well.

Federal law categorically prohibits the possession of a firearm from an individual who has been “adjudicated as a mental defective or who has been committed to a mental institution.” The United States deems this class of individuals worthy of a lifetime Second Amendment ban with only two avenues for relief: one that is nullified; and the other that is non-uniform and arbitrary. While this statute is imposing, it certainly does not lack justification. There is without a question a governmental interest and objective in protecting the citizens through crime reduction and suicide prevention. This objective, however, cannot be reached by categorically denying a constitutional right to a classification of individuals without due process.

This article uses an originalist approach to demonstrate that the classification of “mentally ill” is not a permanent and static one; rather that it is fluid and subject to transformation and development. With this main premise in mind, this article critiques the insufficient statutory response to this issue and offers an originalist judicial approach to resolving the circuit split. In the end, this article analyzes recent circuit court decisions on this issue from the Third, Sixth, and Ninth Circuits and offers a solution that safeguards the constitutional rights of an individual, ensures that due process rights are feasible, and preserves the governmental interest of reducing crime and preventing suicides.

Abstract:

To say that the moral stain of racism pervades American history would be an understatement. One does not have to look hard to find examples where people of color were treated disparagingly or disparately. Thus, it should come as no surprise that throughout much of American history there are examples where race played a role in lawmakers deciding who may and may not acquire, own, and use firearms for lawful purposes, or where race was the principal factor in orchestrating state and non-state sponsored armed violence against people of color. The painful and often tragic historical intersection between race and firearms is indeed a complex and multi-faceted narrative worthy of examination and reflection, including in the area of history-in-law —that is the study of how the law has evolved in a particular area, what events and factors caused the law to evolve, and how, if at all, this history is important when adjudicating legal questions.

Yet in the ongoing discourse over the purpose, meaning, and protective scope of the Second Amendment, the historical narrative of race and firearms is becoming increasingly misappropriated and hyperbolized. There are indeed numerous examples, but two are particularly concerning and exist at the extreme opposites of the Second Amendment political spectrum. The first—often stated by gun rights proponents—is history shows that gun control is inherently racist. The second—sometimes stated by gun control proponents—is that the Second Amendment itself is inherently racist, with some going so far to claim the right to “keep and bear arms” is on historically on par with the Constitution’s morally “indefensible” three-fifths clause—the clause that provided slaves would account for three-fifths a person for the purpose of congressional apportionment.

This article seeks to examine and unpack these extreme historical opposites and explain why their ‘racist’ claims ultimately do more societal harm than good. This article is broken into three parts. Part I critically examines how and why the ‘gun control is racist’ narrative came to be. Part II then critically examines how (and the elusive why) the ‘Second Amendment is racist’ narrative came to be. Lastly, Part III outlines why accepting either of these ‘racist’ narratives do more harm than good, particularly in the confines of history-in-law.

Abstract:

Gun control in the United States has a racist history. Nevertheless, federal courts and academics have invoked Southern gun restrictions enacted after the Civil War to suggest that history supports stringent regulation of the right to bear arms. We argue that courts’ reliance on these restrictions is illegitimate. Drawing on original research, we reveal how the post-war South restricted gun-ownership for racist reasons, deployed its new laws to disarm free Blacks, yet allowed whites to bear arms with near impunity. We then show how modern reliance on these laws contravenes the Supreme Court’s decision in Ramos v. Louisiana, which deemed similarly tainted statutes unconstitutional. Since the Court will soon consider the validity of modern limits on concealed carry, placing Southern gun restrictions in their proper historical context matters today more than ever. While Southern gun control after the Civil War might tell us something about how the South sought to preserve white supremacy, it tells us almost nothing about the true scope of the Second Amendment.




United States v. Perez and Doctrinal Development

Earlier this summer, in United States v. Perez, a divided panel of the Second Circuit rejected a challenge to 922(g)(5)—the federal law prohibiting gun possession by undocumented immigrants. I missed the case at the time, but Law360 has an interesting write up on the decision and how it fits into broader litigation regarding immigrants’ gun rights. Perez itself raises some interesting questions about the basis for 922(g)(5)’s constitutionality and, more generally, the assume-without-deciding approach that many circuit courts have taken with regard to it and other categorical exclusions.

As the panel explained:

[O]ur practice in those cases has been to assume that a given firearm restriction implicates rights guaranteed by the Second Amendment and determine whether the restriction would nonetheless withstand the appropriate level of scrutiny. We see no reason to abandon that approach here.

Thus:

We need not decide [whether undocumented immigrants like Perez have a constitutional right to possess firearms], because even if we were to assume that Perez has a constitutional right to possess firearms, we find that § 922(g)(5) is a permissible restriction when applied to the facts of this case.

This is a common way of addressing not only 922(g)(5) claims, but other forms of regulation as well—courts regularly assume that the relevant person, firearm, or activity is indeed covered by the Second Amendment, but can nonetheless be prohibited or otherwise regulated. The hard methodological issue is what the assume-without-deciding approach means for the development of doctrine, especially when that approach effectively becomes a rule of decision.

When a court recognizes its own “practice” and defers to it, the line between dicta and holding—never an easy one to draw—starts to get especially blurry. In Perez, the panel majority seems to treat the skip-step-one approach almost as a matter of stare decisis (“[w]e see no reason to abandon that approach”). And if the law would be upheld under intermediate scrutiny anyway, then a holding on whether Perez is covered by the Second Amendment would be unnecessary (and thus, arguably, dicta). But it also suggests that we’ll never get a holding on whether, for example, undocumented immigrants fall within the scope of the Second Amendment, unless and until a court concludes that the prohibition cannot survive intermediate scrutiny.

Judge Menashi’s concurring opinion would simply have held that “illegal aliens cannot invoke the right of the people to keep and bear arms under the Second Amendment.” Indeed, he suggests that the majority has effectively decided the same thing via a circuitous route that harms “American citizens”:

By reaching this conclusion indirectly instead of directly, however, the court undermines the protections of the Second Amendment for American citizens by watering down the intermediate scrutiny the court purportedly applies to the challenged restriction into a form of rational basis review.

Judge Menashi’s opinion, meanwhile, raises another difficult question of Second Amendment hydraulics, because it emphasizes that Perez’s activity (borrowing and firing a gun to break up a fight) falls within the “core” of the Second Amendment and should therefore be protected by more than intermediate scrutiny. Thus, Judge Menashi argues, the only way to justify the application of the federal prohibitor is to conclude that Perez falls entirely outside the Second Amendment. (He also discusses the history of laws disarming non-citizens; Catie Carberry (Duke Law ’21) and I have written on historical laws targeting “dangerous” groups and “outsiders.”)

The tricky thing with that kind of categorical reasoning is when—as here—it sets up a conflict between categorical protections (i.e., the use of guns in self-defense) and categorical exclusions (i.e., in Menashi’s approach, “illegal aliens”). Luke Morgan, who wrote a terrific student note on guns at protests, is currently working on a paper that explores how that kind of doctrinal rule vs. doctrinal rule gets resolved in various areas of constitutional doctrine. Sometimes, as in Perez, the categorical exclusion seems to trump the categorical protection. But sometimes the categorical protection seems to trump the categorical exclusion—as, for example, in R.A.V. v. City of Saint Paul, where Justice Scalia indicates that even unprotected speech like fighting words cannot be regulated on the basis of viewpoint.

According to the Law360 article, Perez’s lawyers declined to comment on whether they’re seeking en banc review or preparing a cert petition.