Thoughts on Greer v. United States

In its June 14 decision in Greer v. United States, the Supreme Court addressed the mens rea requirement for the federal felon-in-possession law at 18 U.S.C. § 922(g)(1) (also called the “felon prohibitor”).  (The Court consolidated the Greer case with a similar case, Gary v. United States, on appeal from another Circuit).  This opinion was a natural follow-up to the Court’s 2019 decision in United States v. Rehaif, where the Court clarified for the first time that convictions under any section of § 922(g) require that the prosecution prove the defendant was aware of his or her status that implicates one of the nine statutory prohibitions.  In Rehaif, that meant the defendant (an immigrant) needed to know that his expired student visa meant he was unlawfully in the country in order to “knowingly violate” the statute; in Greer/Gary, this meant the defendant needed to have knowledge that he was a convicted felon. The case was about a gun control statute (I will argue below our primary gun control law), but the case was not a Second Amendment challenge to the statute.  Somewhat surprisingly, the decision was nearly unanimous, with 8½ Justices agreeing on the outcome (Justice Sotomayor concurred in part and dissented in part).  Justice Kavanaugh wrote the majority opinion.

A quick note of clarification: the mens rea requirement for § 922(g), according to these decisions, is that the prosecution would have to prove as elements of the offense that the defendant 1) knew he possessed a firearm or ammunition, and 2) knew he was a felon, or an immigrant in the country unlawfully, or dishonorably discharged from the military, or a current user of illegal narcotics, etc.  It does not require knowledge of the firearm prohibition itself – the Court does not require proof that the defendant knew his felon status would bar him from owning a gun.  Knowledge of the underlying or predicate status is required, but not knowledge of the firearm law itself.

Greer and Gary were both convicted and sentenced of being felons in possession before the Rehaif decision came out, and at that time many courts were not requiring proof that the defendant knew he was a felon, or admission of this on the record from the defendant in a plea colloquy, so both of them were seeking reversals so they could either have a new trial or renegotiate their plea deal.  The question the Court answered was therefore a technical point of appellate criminal procedure: whether this was “plain error” review rather than “harmless error” review, and if the former, whether the defendant showed (or needed to show) that he would have presented evidence at trial to show he did not know he was a felon.  The Court held that “plain error” appeals under Rehaif require showing that the defendant would have put on evidence at trial to show they were unaware of their relevant status, such as being a convicted felon.  Neither Greer nor Gary had done that, so their convictions stand.

The Court also mentions in passing several times that most felons know they are felons – proving this is usually a mere formality for prosecutors.  Justice Sotomayor’s partial dissent sets forth a few relatively commonplace scenarios where someone might misunderstand their status, such as juvenile offenders or those who plead guilty to a felony but serve little or no jail time, being sentenced instead to probation. Most of her dissent, however, emphasizes that the rules are different for appeals of “harmless error” (more favorable to defendants).

The technical procedural question before the Court helps explain the consensus among Justices who normally would disagree about Second Amendment rights and gun control laws.  The decision is consistent with other recent decisions about “plain error review,” requiring a defendant show on appeal “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.”  Note that this is a significant obstacle for defendants, and it means even when there was a plain error at trial, in most cases the conviction will be upheld.  This is also consistent with several other types of appellate review for errors at criminal trials, such as ineffective assistance of counsel claims or claims the prosecutor hid evidence that might exonerate the defendant.  In these cases, the defendant also must show (with varying amounts of evidence) that the outcome of the trial would have been different but for the prosecutorial misconduct or incompetence by defense counsel.  In that sense, the holding in Greer is not surprising at all.

As mentioned above, the opinion does not mention the Second Amendment (nor did the lower court opinions in the cases), it appears that none of the advocacy groups for gun rights (NRA, GOA, SAF, NSSF, or FPC) filed amicus briefs, and the decision seemed to escape notice on the popular gun rights blogs.  Justice Kavanaugh, who authored some of the circuit court opinions in Heller II, wrote for the majority.  So in one sense, this was not a big decision in the field of gun rights or firearm policy.  The “new” requirements imposed on prosecutors in Rehaif and Greer for bringing charges under § 922(g) amount to little more than a technicality, and Greer torpedoes nearly all of the post-Rehaif appeals from defendants sentenced before that case was decided. From a practical standpoint, Rehaif and Greer changed very little for prosecutors or defendants in these cases.

On the other hand, there are several reasons that Greer matters a lot.  The statute itself has been the target of numerous Second Amendment challenges, in several of which the Court has denied certiorari (including a few this term), leaving in place circuit court decisions upholding the statute.  The felon prohibitor is, at least in terms of legal challenges and cert petitions, a “hot” issue in the Second Amendment arena.  Justice Barrett, while on the Seventh Circuit, wrote a much-discussed dissent arguing that the statute is unconstitutional as applied to non-violent felonies, and other conservative Justices have expressed in dissenting and concurring opinions in recent years the desire to address more Second Amendment issues.  Even though the petitioners in the case had not brought Second Amendment claims before the Court, it was surprising that none of the Justices (especially Justice Barrett) would write a dissent or concurrence in this case arguing that the prosecutors should also have to prove the present dangerousness of the felon or that the prior conviction was a for a violent felony.  In theory, the Court could have requested briefing on the issue and included a Second Amendment section in the opinion, narrowing the statute by requiring prosecutors to prove the defendant poses a danger.  Greer could have been a Second Amendment case, and though it’s risky to argue from silence, the Court’s repeated denials of cert in the challenges to the statute, combined with seemingly sidestepping the issue in this opinion, could be a signal about the Justices’ views about the outer bounds of the Second Amendment.

A number of commentators have written about the issues with the statute: Jake Charles has an excellent article exploring whether the Second Amendment excludes felons from its coverage, or if it covers felons but merely permits some restrictions on their rights.  Other commentators have argued that permanently dispossessing felons of firearms lacks historical (Founding Era) pedigree (see here and here).  Benjamin Levin has discussed how the felon prohibitor rule is a major contributor to mass incarceration, disproportionately punishes minorities, and gives police and prosecutors too much discretion and power.

Levin’s concerns are well-founded, but as he acknowledges, the law might be necessary or beneficial despite these problems.  In practice, § 922(g) is the centerpiece of firearm regulation in this country.  The gun purchaser background check system (NICS) is built around § 922(g).  Arguably, § 922(g) is one of the two main functions of the gun dealer licensing system (violating § 922(g) by selling to prohibited purchasers is the most common basis for license revocations).  With a longstanding political gridlock preventing the passage of new gun laws, § 922(g) may be all we have for the foreseeable future – if we want to limit gun violence by limiting who can get a gun, § 922(g) is, in practice, the only way we do it. It may be the only type of modest gun regulation that garners bipartisan support.

The conservative Justices seem to agree (with the possible exception of Barrett, but after Greer even that is in doubt).  As Justice Alito stated in his dissent in Rehaif:

And § 922(g) is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.” (Rehaif at 2201).

Most of Justice Alito’s dissent in Rehaif was about the prospect of appeals like the one in Greer, and the Greer decision addressed most of the concerns he expressed about Rehaif.  Contrast this with his dissent in NYSRPA v. City of New York, where his absolutism about the Second Amendment might have led readers to think he would be more sympathetic to challenges to the felon prohibitor.

Indirectly, the felon prohibitor rule helps reduce the flow of guns into vulnerable communities – impoverished neighborhoods with elevated rates of gun violence. (Most of our nation’s gun violence is concentrated in urban areas).  While the felons themselves may not pose a danger or engage in gun crimes, any guns they have become more easily accessible to neighborhood thieves, borrowing by roommates and nearby relatives, and so on.  Some published social science research about gun violence has found that most guns used in crime are borrowed/shared (sometimes stolen), which means geographic proximity of the guns matters. The supply of guns flowing into vulnerable communities can impact rates of gun violence, even if the guns are brought there initially by owners who do not perpetrate the crimes. (RAND Corp has a meta-survey of the literature about the correlation between gun prevalence and gun violence – including some of the contradictory studies).

The Second Amendment challenges to the felon prohibitor argue that released felons need guns for self-defense, but it is not clear that incidents of legitimate (lawful) defensive gun use by felons matches the number of guns borrowed or stolen from felons, and sometimes used by felons in committing new crimes.  I am not sure it matters whether the felon’s conviction was for violent crime, drug possession (a large proportion of felonies), or a clearly nonviolent crime like fraud, embezzlement, or insider trading, from the standpoint of bringing more guns into vulnerable communities.  And if a nonviolent felon returns to the same type of nonviolent crimes – say, fraud – and they keep a gun for self-defense against their victims (who may seek revenge or repayment by force) – then we’ve set the stage for more foreseeable gun violence.  That said, I agree with other commentators that the sentences for § 922(g) seem unreasonably long, and significantly contribute to the mass incarceration problem.  Gun forfeiture with supervised release (including periodic inspections for guns) would seem to achieve the same social goals.  It is also worth mentioning that there is a federal statutory framework for felons to petition, after a period of some years, to have their gun rights legally restored, but for many years Congress has blocked the ATF from using any funds for this on the federal level.  Some states have functioning, streamlined processes for restoration of gun rights after a state felony.  This seems like a simple fix for Congress to make – the statutory and adjudicative framework is already in place for a restoration of gun rights by those who can demonstrate they no longer pose a danger to society.

New Essay on Firearm Prohibitor Ambiguities in North Carolina

For a local angle this morning, I’m highlighting a new essay on the ambiguities surrounding firearm prohibitions for domestic violence related offenses in North Carolina. It’s a short but interesting piece–check it out!

From the Introduction’s description of its scope:

This Comment analyses the differences between current federal law and North Carolina state law regarding domestic violence firearm prohibitions. Part II discusses the Lautenberg Amendment to the federal Gun Control Act of 1996, which bans firearm possession by individuals convicted of domestic violence misdemeanors or subject to domestic violence protective orders. Part III provides an overview of N.C. Gen. Stat. § 50B, North Carolina’s domestic violence statute, and details how a victim can obtain a civil domestic violence protective order. Finally, Part IV analyzes the contradictions between federal law and North Carolina law regarding domestic violence firearm prohibitions.

Petitions Challenging the Federal Prohibitors & More Scholarship Skepticism

At its conference two weeks from today, the Supreme Court is scheduled to consider whether to accept review in two as-applied challenges to the federal felon prohibitor. In Flick (which we’ve covered here and here), the Eleventh Circuit basically foreclosed as-applied challenges. In Holloway (which we’ve covered here and here), the Third Circuit—one of the few circuits expressly open to as-applied challenges—clarified that even nonviolent offenses can constitutionally serve to bar a person from possessing firearms, so long as the offense is “serious.” There are also several other as-applied challenges completing cert briefing in the next few weeks, including another Third Circuit opinion we’ve covered here, Folajtar. The Supreme Court has turned down review in a number of similar petitions over the past year, so it would not be surprising if that same fate meets these petitions.

In addition to those challenges to the felon bar, there is one pending cert petition challenging the bar for those who have been involuntarily committed to a mental institution. Briefing at the cert stage is almost complete, and the case will soon go to conference. In Mai, the Ninth Circuit upheld the bar as-applied to a man with a twenty-year old involuntary commitment, as we’ve covered here and here. The circuit court’s denial of en banc review drew some sharp dissenting opinions.

A new student note recently published in the Cornell Law Review, Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions, challenges the federal prohibition in 922(g)(4). Here’s the abstract (footnotes removed):

This Note seeks to critique the conflicting approaches that the Third, Sixth, and Ninth Circuits have taken when analyzing what Second Amendment rights, if any, individuals are entitled to after a mental institution involuntarily commits them. Additionally, this Note offers a novel solution. To do so, it explores “not the what, where, when, or why of the Second Amendment’s limitations—but the who.” Part I first discusses the modern framework for analyzing Second Amendment claims. Part II then discusses the language of § 922(g)(4), whom it affects, and why previously involuntarily committed Americans in approximately nineteen states are entirely foreclosed from seeking relief from § 922(g)(4)’s lifetime firearm ban. It then offers an in-depth analysis of how the Third, Sixth, and Ninth Circuits have applied the post-Heller framework for adjudicating as-applied Second Amendment challenges to § 922(g)(4)’s lifetime ban for the involuntarily committed. Part III briefly explores why the policy goals of reducing the stigma of mental illness and increasing access to mental healthcare point in favor of ensuring that presently mentally healthy individuals have the opportunity to petition for relief from § 922(g)(4)’s firearm ban. Finally, Part IV offers a novel approach to analyzing Second Amendment challenges to § 922(g)(4)—viewing the application of strict scrutiny as justifiable by viewing Heller’s exceptions as an off switch to the Second Amendment right to bear arms. Part IV discusses why Judge Sutton’s assertion “that Heller create[d] an on-off switch to the right to bear arms,” although originally offered to refute the application of any form of scrutiny to § 922(g)(4)’s committed provision, can also be used to support the argument that courts must analyze § 922(g)(4)’s committed provision under strict scrutiny.

This note joins what seems like growing student skepticism about the sweep of the lifetime firearm possession bars in federal law—including this note we highlighted just a few weeks ago—and perhaps also growing judicial skepticism—including this dissent that would have created an as-applied exception to the bar for those with a misdemeanor domestic violence conviction. If the Supreme Court wants to step in and provide some clarity to lower courts on how to assess these challenges, or what the outcomes should be, it has a whole set of cases at its disposal.

An As-Applied Exception to the Domestic Violence Prohibitor?

In the federal courts of appeals, judges have been increasingly confronted with constitutional challenges to the federal laws that prohibit particular classes of people from possessing firearms. Federal law currently bars nine categories:

  1. A person with a conviction for an offense that carries a possible punishment of more than one year in prison
  2. A fugitive from justice
  3. A person who is an unlawful user of or addicted to any controlled substance
  4. A person who “has been adjudicated as a mental defective or who has been committed to a mental institution”
  5. A noncitizen who is either unlawfully in the United States or who is here on a nonimmigrant visa
  6. A person who has been discharged from the Armed Forces under dishonorable conditions
  7. Anyone who has renounced their U.S. citizenship
  8. A person subject to certain domestic violence restraining orders
  9. Anyone convicted of a misdemeanor crime of domestic violence

The overwhelming majority of Second Amendment litigation over prohibited person status has concerned the first category—often called the “felon prohibitor.” Most courts have declined to create exceptions to this category through “as-applied” challenges that would hold that the law’s application to a particular person is unconstitutional. (You can peruse all our blog posts on these many cases through the “prohibited person” tag on our posts here.) In addition, at least one federal court of appeals has made as-applied challenges available to the prohibition on firearms for those with prior involuntary mental health commitments.

Just last week, I saw an argument that called for creating another category of as-applied challenges—this time to § 922(g)(9), the provision barring those convicted of domestic violence misdemeanors. In Harley v. Wilkinson, Fourth Circuit Judge Julius Richardson dissented from the majority’s decision upholding the prohibition as constitutional.

There, the challenger had been convicted 27 years prior for a misdemeanor offense of assault and battery against a family member after an altercation with his then-wife. The majority declined to craft an exemption for situations like these. “[W]e adopt the approach of our sister circuits and decline to read into the statute an exception for good behavior or for the passage of time.” It assumed that at step one of the two-part methodology used to decide Second Amendment challenges that the statute implicated conduct protected by the Second Amendment, but held at step two that the statute satisfied intermediate scrutiny.

In dissent, Judge Richardson argued the case “should be sent back to the district court so it can consider the particular circumstances of Harley’s conviction.” He thought, in other words, that the DV prohibitor should be just as subject to as-applied challenges as the felon prohibitor or the mental health prohibitor. No other circuit court, it bears emphasizing, has allowed challenges to the law barring firearm possession for DV misdemeanants. Notably, Judge Richardson did not say what the district court should be looking for when it reviewed Harley’s sentence. The circuit courts that do allow challenges to one of the other prohibitors disagree with each other and sometimes even within the same circuit on what makes for a successful as-applied challenge. I explored some of these issues in a recent article, but to me the difficulty in those contexts just underscores the complexities in creating an as-applied exception here. Consider that the courts that do allow as-applied challenges to the felon prohibitor debate whether it is the seriousness of the offense or the dangerousness of the offense that matters most in the calculus. But with § 922(g)(9), the offense involves domestic violence and thus seems to qualify as serious and dangerous. It’s not clear what the governing framework would be to figure out which misdemeanants could not be constitutionally deprived their right to firearms. With a Supreme Court that may be poised to re-enter the Second Amendment debate sooner rather than later, we are likely to see many more appeals for exceptions to the list of prohibited persons.

Scholarship Highlight: New Student Note Questioning the Felon Prohibitor

In a new student note in the Duke Law Journal (where I have fond memories of student writing from working as a notes editor many years ago), Zach Sherwood argues for re-thinking the scope of the federal bar on firearm possession for those with a prior felony conviction. The abstract is below and the full note can be found here.

  • Zach Sherwood, Time to Reload: The Harms of the Federal Felon-in-Possession Ban in a Post-Heller Worl, 70 Duke L.J. 1429-1472 (2021)


Federal law permanently prohibits anyone who has been convicted of a felony from possessing a firearm. Keeping lethal weapons out of the hands of those who pose a risk to public safety is no doubt a worthy policy goal. But the federal felon-in-possession ban is blunt, punitive, and supremely damaging to the ex-felons who fall within its ambit. The statute’s sweeping scope ensures that any ex-felon who possesses any firearm for any length of time for any reason can be swiftly and harshly punished. And it indiscriminately targets conduct that is often neither harmful nor criminal.

The felon-in-possession ban gained constitutional significance following the Supreme Court’s landmark decision in District of Columbia v. Heller . The Heller Court recognized for the first time an individual Second Amendment right to possess a firearm for self-defense in the home. Yet by imposing substantial criminal liability on any form of firearm possession by an ex-felon, the felon-in-possession ban categorically strips a sizable portion of Americans of this very same right.

This Note argues that it is high time to rethink the federal felon-in-possession ban’s role in a post-Heller world. It argues that the statute’s expansive reach is poorly tailored to addressing gun violence and highlights the weak doctrinal foundation on which the felon-in-possession ban is built. But this Note goes further than most existing scholarship by also examining the tangible, on-the-ground harms that the felon-in-possession ban inflicts on ex-felons and their communities—from needlessly complicating ex-felons’ reintegration into society, to burdening the Second Amendment rights of nonfelon family members, to effectively disarming large swaths of communities of color. Change is needed, and this Note recommends statutory reforms and constitutional challenges that would circumscribe the felon-in-possession ban’s scope.

Lange & The Implications for Second Amendment Challenges to the Felon Prohibitor

Earlier this week, the Supreme Court heard oral arguments in a Fourth Amendment case, Lange v. California. The case concerns the Fourth Amendment’s “hot pursuit” exception to the ordinary warrant requirement for entry into a home. One of the key questions that split the various parties in the case was how and whether the difference between misdemeanors and felonies should affect the rule. The state of California argued that warrantless entry into the home to follow a suspect should be permitted when an officer has probable cause to believe the person committed a felony, but not if the offense was only a misdemeanor. Other parties argued against a rule that turned on the classification of the offense under state law. The justices seemed concerned about this line-drawing exercise, with some urging the focus to turn to severity of the offense or potential dangerousness of the person, as Amy Howe writes at SCOTUSBlog. Federal courts of appeals across the country are engaging in similar debates over the historical justifications for prohibiting those convicted of certain crimes from possessing firearms, and thus whether the federal felon prohibitor in 18 U.S.C. § 922(g)(1) is consistent with the Second Amendment.

The justices views in the Lange oral argument signaled some discomfort with a rule that would depend on the line separating felonies from misdemeanors. Here are just a few examples:

  • Justice Breyer: “[T]he problem with trying to separate misdemeanor and — and felony is that different states have different rules and different crimes that count as misdemeanors and some are pretty serious.”
  • Chief Justice Roberts: “The line between felonies and misdemeanors is — is very hard to draw. In many cases, it’s counterintuitive, and it certainly varies from state to state.”
  • Justice Thomas: “[I]sn’t the definition of ‘felony’ today quite different and ‘misdemeanor’ today quite different from what it was at common law?”
  • Justice Sotomayor: “I’ve been listening to the exchange with my colleagues involving the difficulty in deciding what’s a felony and what’s a misdemeanor. Part of the problem is that what are felonies are no longer absolutely, necessarily, and in all situations dangerous crimes. You can have white-collar crimes where there is no danger. You can have all sorts of environmental crimes, other things that don’t cause — that don’t create exigency in the same sense that Santana was announcing the rule or that the common law came from. And so I don’t know why anybody is arguing that there’s a difference between felony and misdemeanors and why we’re recognizing a categorical rule at all.”
  • Justice Kagan: “[T]o continue with the difficulty of drawing lines between felonies and misdemeanors, Justice Sotomayor referred to this, but, you know, it – it’s true that it’s the basic line suggesting the severity of the fence — the offense, but it’s really not the basic line as to whether an offense is violent or dangerous. I mean, sometimes it is, but a lot of times it’s not. And that — the violence and dangerous aspect of — of the conduct seems the more relevant one for purposes of deciding when an intrusion into the home is proper.”
  • Justice Gorsuch: “[D]ifferent states have different rules about what a felony is and what a misdemeanor is, and it would seem odd that the Constitution would – in its meaning, would depend upon the happenstance of positive state law. And . . . we live in a world in which everything has been criminalized. And some professors have even opined that there’s not an American alive who hasn’t committed a felony in some – under some state law.”

The terms of this debate are familiar to those who follow Second Amendment litigation over the bar on felon firearm possession. Of course, there are differences between these contexts. Unlike in the context of Lange, there is a uniform federal rule delineating what types of offenses qualify for the firearm prohibition. The “felon prohibitor,” in fact, does not use the term felony at all, but instead bars firearm possession for anyone “who has been convicted of a crime punishable by imprisonment for a term exceeding one year.” The statute further provides that that phrase does not include a state law offense classified as a misdemeanor so long as it is punishable by a term of two years or less. Some lower courts have found that labels are quite significant in deciding as-applied Second Amendment challenges. In Folajtar v. Attorney General, the Third Circuit focused on this distinction, using it to justify its “differing treatment of felonies and misdemeanors” for purposes of as-applied Second Amendment challenges to § 922(g)(1). That circuit has held that “serious” crimes are sufficient to constitutionally deprive someone of their Second Amendment rights, but non-serious ones are not—and the only time it has ruled for an as-applied challenger was in the context of qualifying offenses labeled misdemeanors under state law. Justice Barrett, on the other hand, argued as a circuit judge that the inquiry should focus on whether the offense shows the person likely to be a “danger” or not. As Justice Kagan’s Lange comments suggest, seriousness and danger may not always travel together, and as Justice Breyer suggested, how a state classifies offenses might say little about the culpability of the conduct.

Because the distinction matters in at least some Second Amendment cases, the justices’ reticence to attach much significance to differences in state-law offense labels in Lange may provide a window into how the Court would eventually handle an as-applied Second Amendment challenge to the felon prohibitor. As our tracker attests, there are several cert petitions raising these questions already geared up.

The Next Big Second Amendment Case?

Today, at its weekly conference, the Supreme Court will consider whether to grant review in McGinnis v. United States. In the case, Eric McGinnis challenges his conviction under 18 U.S.C. § 922(g)(8) for possessing a firearm while subject to a protective order. Both Darrell and I have previously blogged about the case after the Fifth Circuit upheld the conviction. What makes the case most interesting is that more than the challenge to 922(g)(8), McGinnis challenges the methodological framework by which the Fifth Circuit upheld his conviction.

In the Fifth Circuit, the panel applied the traditional two-part framework for deciding Second Amendment challenges that governs in all the federal courts of appeals to have considered the methodological question. Under that test, the panel first assumed that 922(g)(8) burdened conduct protected under the Second Amendment, and then at the second stage applied intermediate scrutiny. It upheld the law as closely related to the government’s interest in preventing gun violence. What is more noteworthy than that holding—with which every circuit court to consider the question has agreed—is Judge Duncan’s separate concurrence, which was joined by Judge Jones. In that concurrence, he questioned the two-step framework and advocated “retir[ing] this framework in favor of an approach focused on the Second Amendment’s text and history.” He indicated he’d be happy to do that en banc in McGinnis or any other case. The Fifth Circuit did not take the case en banc (and it appears no active judge even sought a vote on rehearing en banc).

McGinnis framed his cert petition around this methodological issue. After all, there’s no circuit split on whether 922(g)(8) is constitutional, and there aren’t many dissenting voices on that question either. But with respect to methodology, judges are split. (Circuits, to reiterate, are not.) Many conservative judges have come out strongly in favor of the text, history, and tradition (THT) approach that then-Judge Kavanaugh announced while he was serving on the D.C. Circuit. Justice Barrett wrote a THT-friendly opinion—without expressly endorsing or rejecting it—while a judge on the Seventh Circuit. It’s likely that at least one more of the conservative justices would like that test to govern Second Amendment challenges.

To my mind, the petition has two strikes against it. As I’ve suggested before, I think the Court is less likely to take a direct criminal appeal like this because the petitioner tends to be less sympathetic. In addition, unlike with 922(g)(1), courts aren’t having much trouble upholding convictions under 922(g)(8). But in some ways, those strikes could also be counted in the case’s favor. The Court could use the case to pull a Marbury v. Madison—issue a major ruling that redraws legal boundaries but deny relief in the case at hand. In fact, that was what the Fifth Circuit did with the Second Amendment in 2001 in a case called United States v. Emerson. The factual and legal setting there were very similar to McGinnis. A man challenged on direct appeal his conviction for violating 922(g)(8). But the main difference was that in 2001 every court of appeals in the country that had examined a Second Amendment challenge rejected it on the grounds that the Constitution did not protect private arms possession for purposes unrelated to militia service. Emerson—in a foreshadow of Heller—was the first appellate court to hold otherwise in an opinion that in the end upheld the man’s conviction under 922(g)(8).

So if a majority of the justices want to adopt the methodological framework urged by conservative judges, commentators, and advocates without striking down a popular and universally upheld legal prohibition, McGinnis might be a decent vehicle. Since the justices are meeting this morning, there’s a chance we could hear later in the day whether they will hear the case. We may also have to wait until Monday’s order list to see what the Court decides to do. But either way, we’ll know soon enough.

Carrying While Committing Crimes

Last December, the Kansas Court of Appeals issued an interesting unpublished opinion in Bader v. Concealed Carry Licensing Unit. The dispute concerned Ryan Bader’s claim to a concealed carry handgun license. The state’s Concealed Carry Licensing Unit (CCLU) denied Bader a license because he had previously been convicted of attempted robbery, though Bader had the conviction expunged before he sought the license. (Fun fact: Bader was represented in the case by Kris Kobach, the former Kansas Secretary of State.) The case presents complex questions about statutory interpretation; highlights the creative ways that prosecutors, defense attorneys, and judges negotiate pleas to (try to) sidestep onerous collateral consequences; and even includes some appellate practice reminders (always cross-appeal an adverse ruling on an alternate ground entitling you to relief!).

Under Kansas law, the CCLU cannot issue a license if the applicant has been convicted of a felony offense and “was found to have been in possession of a firearm at the time of the commission of the crime.” Bader argued that the provision did not apply because he was not “found” to be in possession of a firearm during the court proceedings for attempted robbery. That conviction arose from an incident in which Bader took a taxi home and argued with the driver over the fare. He paid part of the fare, then walked into his house and returned with a handgun. When the driver started to call the police, Bader took the driver’s phone and put it on the roof of the taxi. After Bader when back inside, the driver grabbed his phone and called the police. The state charged Bader with aggravated assault for placing the driver in immediate fear of bodily harm with the gun. Bader reached a plea with prosecutors and the new, reduced charge agreed to was attempted robbery, and this time the prosecutors left the gun out of the charging documents. (I’m reminded here of a brilliant article Thea Johnson presented at Duke recently on “Lying and the Paradox of Plea Bargaining,” about the ways that pleas often evade the truth in service of better perceived outcomes.)

At the plea hearing, the trial judge asked for the factual basis for a plea of attempted robbery, and specifically what facts supported the “force of threat or bodily harm” element of the offense. The prosecutor noted that Bader had a handgun. Bader’s lawyer agreed, telling the judge that “he took the cell phone from the victim, and this was with—for purposes of the factual basis, it was with the possession of a firearm.” The parties recommended probation under the plea agreement and informed the judge that Bader would not have to register as a violent offender. (As Michael O’Hear documents, states have been creating mechanisms like violent offender registries as part of a series of escalating consequences for crimes categorized as “violent.”) Agreeing with the recommendation, the trial judge ordered probation and did not require Bader to register as a violent offender. On the journal entry of judgment, the box asking if the offense was committed with a deadly weapon is checked “no”—a “yes” would have required completing the offender registration supplement.

After finishing probation and getting his felony expunged, Bader applied for his concealed carry license. The CCLU determined that Bader’s offense precluded licensure because he had in fact possessed a firearm in the commission of the attempted robbery. After winding its way through administrative appeals, Bader sued in state court, arguing that the “finding” that a person possessed a firearm in committing a crime had to be made by the trial court at the time of the offense and not later. The state court agreed and ordered the CCLU to grant Bader a license. The Kansas Court of Appeals reversed. It concluded that the trial court in his attempted robbery case necessarily did find that Bader possessed the gun, because no other facts supported the charge. “Without the finding that Bader possessed a gun, there would not have been an adequate factual basis for the district court to accept Bader’s guilty plea to the crime of attempted robbery.” And that finding, the appellate court held, need not be a formal one to satisfy the statute barring Bader from getting a carry license. Nor did the trial court’s journal entry notation negate that finding. The trial court’s “decision not to require registration or use the special sentencing rule was an attempt to conform Bader’s sentence to the terms of the plea agreement.” (This is also consistent with research on mandatory minimums and other harsh penalties that confirms that system actors often find ways to circumvent what they view as punishment that doesn’t fit the crime, despite whatever discretion the legislature attempts to remove.)

Finally, the court declined to address Bader’s alternative argument that his expungement meant his offense no longer disqualified him because Bader did not cross-appeal the trial court’s ruling on the issue.

Cert Petition Highlight: Flick v. Rosen

In addition to the several other Second Amendment challenges recently filed at the Supreme Court, a new one was filed in the last days of 2020 and just docketed earlier this week: Flick v. Rosen. Like a couple of the other petitions, Flick involves an as-applied challenge to the felon prohibitor. But unlike at least one of the others, this conviction is a federal one, meaning that the Kenneth Flick has no possibility of getting his firearm rights restored outside a presidential pardon. (While that avenue used to be considered effectively closed for those seeking gun-rights restoration, President Trump just recently pardoned Ricky Kanter, whose Second Amendment challenge then-Judge Amy Coney Barrett voted to uphold.)

Flick’s conviction involved a criminal copyright violation about 30 years ago. As I’ve written previously about the case, the Eleventh Circuit’s approach to his case all but shut the door on as-applied challenges. Thus, even though the state of Georgia, where Flick resides, has restored his civil rights, including gun rights, the federal conviction still stands as a bar to Flick’s lawful possession of a gun. In the next few months, we should have a pretty good idea of whether or not the Supreme Court–which so far has seemed particularly uninterested in prohibited person cases–will take up and decide whether the federal prohibitors are open to as-applied challenges.

Working Out Rehaif Errors

In Rehaif v. United States, the Supreme Court clarified what the government must prove to secure a conviction under 18 U.S.C. § 922(g), which criminalizes gun possession for certain classes of people. Prior to Rehaif, most courts had held that the government only had to prove that a person knowingly possessed a weapon that had traveled in interstate commerce and was in the prohibited category of persons. Writing for a seven-justice majority, Justice Breyer held that the government also had to prove that a person knew she was in the category of persons ineligible to possess weapons (e.g., felons). The decision, I noted at the time, was likely to have some fairly broad ripple effects on gun prosecutions. Indeed, in dissent, Justice Alito emphasized that the “decision is no minor matter” and proclaimed that § 922(g)  “probably does more to combat gun violence than any other federal law.” Lower courts since then have been trying to sort out the implications of Rehaif, especially for those cases where a person was tried and sentenced under the prior rule that did not require the government to prove the defendant’s knowledge of her status. The Court has at least two cert petitions dealing with aspects of Rehaif pending now (Hobbs, Gary).

The Eighth Circuit recently confronted an interesting situation raised by Rehaif in United States v. Robinson. There, the police arrested Emmanuel Robinson after they discovered he possessed a firearm and had a felony record (in fact, he had seven felony convictions). Robinson took the case to trial. The trial court advised him of his right to testify in his own defense, but told him in no uncertain terms that he would not be allowed to testify about whether he believed he could lawfully possess firearms. Robinson informed the judge that he was prepared to say: “I was instructed that my rights was reinstated, that my right to bear arms was reinstated. I was instructed that there’s – that felons in Missouri can possess weapons, that they can – that they got a right to bear arms.” He reiterated that, according to his understanding, “felons can possess – actually – after my paper – five years after my paper, I was told that my Second Amendment right was automatically reinstated.” The trial court explained to him the elements of the crime (in a pre-Rehaif world where the government did not have to prove he knew his status) and told him that his proposed testimony was irrelevant. He did not object to the Rehaif-deficient jury instructions and was convicted.

On appeal, Robinson argued that the evidence was insufficient to prove his crime in light of Rehaif. Construing that as a challenge to the jury instructions, the panel applied only plain error review. Among other things, that standard of review meant Robinson had to show a reasonable probability that the outcome of the proceeding would have been different without the error. To assess that challenge, the court first acknowledged that 922(g) does not bar felons who have had their civil rights restored from possessing firearms. Thus, it said, “[a]fter Rehaif, it may be that a defendant who genuinely but mistakenly believes that he has had his individual rights restored has a valid defense to a felon-in-possession charge under this provision.” Robinson argued that that was precisely what his testimony would have shown. But the panel disagreed, stating that his proposed testimony was only about whether the law prohibited his conduct, not about whether he fell into the relevant category. And because ignorance of the law is not an excuse, even after Rehaif, his claim failed.

I have to say that to me this seems a bit of stretch. Robinson did not have to prove that his testimony would have certainly changed the outcome, but only demonstrate a reasonable probability that it would have. I think his proposed testimony could be read to suggest that he believed his rights had been restored under state law, and that such restoration would have meant he was not in the category barred from possessing firearms under 922(g)(1). (This, to me, is what his reference to the “five years” after conviction was getting at.) Of course, a jury might not have believed such self-serving testimony, but even the panel left open the possibility that a honest belief of this kind could negate one of elements of the crime.