Since 2022, the Second Amendment has taken on a new life in the wake of New York State Rifle and Pistol Association v. Bruen, the Supreme Court case that struck down a New York gun control law because it was not consistent with the "historical tradition" of firearm regulation contemplated by the drafters of the Constitution. Bruen created a new standard for assessing the constitutionality of gun laws that has sent federal judges and attorneys poring through history to support arguments in favor or against modern restrictions on gun ownership.
Before 2022, lawmakers could justify restrictions on firearms simply because those restrictions advanced an important governmental interest (like preventing gun violence or improving public safety). After Bruen, courts across the country were bombarded with challenges to gun laws as litigants sought to invalidate statutes or fight convictions for violations of statutes that might not pass muster under the test of "historical tradition." Unsurprisingly, different courts reached different conclusions, leading to even more confusion about which gun laws can be enforced. As a result, there is no clear answer to the question of who can (and cannot) exercise their right to bear arms.
Two years after Bruen, SCOTUS issued its first ruling on a Second Amendment case by rejecting a Fifth Circuit ruling that invalidated the conviction of Zackey Rahimi, a man who was convicted under federal law for possessing a firearm while subject to a protective order that prohibited him from having a gun.
Rahimi Ruling Upholds Gun Ban for Domestic Violence Suspects
By ruling against Rahimi, the Supreme Court did more than simply deny his push to overturn his conviction. The Court also found that the challenged statute, a part of the Brady Handgun Violence Prevention Act, was permissible under the Second Amendment and sent a message to federal courts across the country who have struggled to apply the Bruen test to modern gun control laws.
The group of people restricted by the law at issue in Rahimi, the court reasoned, were people previously found to be dangerous. Although an identical law did not exist around the time when the Second Amendment was drafted and ratified, there was a "historical analogue" in statutes that were aimed at punishing those who had made threats with guns or made it more difficult for people deemed threats to public safety to acquire guns. The Second Amendment was not an impediment to disarming those who posed a threat to the safety of themselves or others.
Courts Strike Down Blanket Prohibition Against Guns for Felons
Although the provision of the Brady law that disarmed Rahimi remains intact, courts have rejected the breadth of some of the other provisions through the prism of Bruen and the historical tradition test.
In California, Steven Duarte was arrested after running a stop sign because he was in possession of a handgun and had previously been convicted of nonviolent felony offenses. According to 18 U.S.C. § 922(g)(1), any person previously convicted of a felony is federally prohibited from possessing firearms for any reason. At trial, he was found guilty and sentenced to 51 months of incarceration, but he appealed, arguing that banning guns for all felons was unconstitutional under the Bruen view of the Second Amendment.
A panel of judges from the Ninth Circuit Court of Appeals agreed with Duarte and set aside his conviction. In doing so, they followed the Third Circuit, which had reached a similar conclusion in Range v. United States, finding that convicted felons were still a part of "the people" whose right to bear arms is protected by the Second Amendment. Although that right could still be reasonably regulated, both appeals courts found that a criminal prohibition on firearm possession for all convicted felons was broader than any historic restriction. Crucially, neither challenge involved a felon who had been convicted for a violent crime or a crime that would have been considered a felony around the time of the drafting of the Constitution.
Former President Trump, who was convicted of 34 nonviolent felonies under New York law, is currently federally prohibited from possessing a firearm under the Brady law. This could change, however, if the reasoning of the Range and Duarte courts is adopted nationwide. Other courts, including the Eighth Circuit, have upheld the prohibition.
Courts Divided Over Federal Gun Ban for Drug Users
A case from the Fifth Circuit grabbed national attention because of its unique intersection between a shifting understanding of the Second Amendment and the nation’s changing attitude toward drug use, particularly when it comes to marijuana.
In U.S. v. Daniels, an admitted user of marijuana was convicted under federal law for possession of a handgun and a rifle. The prosecution applied a different subsection of the Brady law (18 USC § 922(g)(3)) that defines a felony offense for possession of firearms by anyone who is an unlawful user of or addicted to any controlled substance (as defined by federal law, which still prohibits marijuana despite state statutes).
After Bruen, the Fifth Circuit agreed to hear Daniels’s constitutional challenge to the federal statute. Applying Bruen, the court reasoned that Congress could not override the Second Amendment’s guarantee of the right to bear arms by declaring a group of people (drug users) to be dangerous. Without a historical analogue to support the restriction, prohibiting guns for drug users was unconstitutional, the court ruled. The Department of Justice, in an attempt to save the statute, appealed to the Supreme Court.
The Eighth Circuit encountered the same argument against an Iowa man’s conviction under section 922(g)(3) in United States v. Veasley, but that court ultimately reached a different conclusion. Although the appeals court was skeptical of the breadth of the statute’s definition of drug users, finding that it might not always be allowable under the Second Amendment, the justices declined to strike down the Brady provision and upheld the underlying conviction. The Eighth Circuit left the law in place because it found historic support in measures that had allowed colonial-era governments to restrict the liberties and ban the arming of those who suffered from mental health issues.
The high-profile conviction of President Biden’s son, Hunter Biden, proceeded under the same Brady law subsection that barred drug users from possessing firearms. His lawyers will hope that the Third Circuit applies the reasoning of Daniels to his appeal.
The Relationship Between Citizenship and the Right to Bear Arms
While other cases examined what circumstances can justify taking away the people’s right to bear arms under the Second Amendment, another push for expanded gun rights takes aim at who is included in “the people” protected by the Second Amendment. A Chicago man raised a constitutional challenge to yet another provision of the Brady law (18 U.S.C. § 922(g)(5)) after he was convicted of possessing a pistol while “being an alien…illegally or unlawfully in the United States.”
The facts of the case, U.S. v. Carbajal-Flores, are certainly sympathetic. Mr. Carbajal-Flores had never been convicted of a felony offense, had no history of violence, and had never been alleged to have misused a firearm in any way. He had admitted that he acquired and kept the handgun solely for personal self-defense.
The District Court, following Bruen, analyzed early restrictions against firearm possession by British loyalists to determine whether a historical tradition enc disarming an entire group of people like undocumented immigrants. Ultimately, the judge found that the Brady restriction was unconstitutional as it applied to an otherwise peaceful person and overturned Carbajal-Flores’ conviction, reasoning that even the British loyalists could escape the consequences of the gun ban by signing loyalty oaths, so that group was not categorically banned in as strict a fashion.
Supreme Court Takes Wait-and-See Approach to New Gun Cases
Shortly after announcing the Rahimi decision and wrapping up the 2023-24 term, the Supreme Court signaled that it was not ready to revisit gun restrictions right away. Rather than scheduling cases challenging the Brady law’s restrictions on firearm possession for convicted felons, drug users, and undocumented aliens, the Court instructed the lower courts to reconsider their previous rulings on all of those cases in light of the Rahimi decision.
It is doubtful this step will clear up the confusion about how courts should correctly assess gun restrictions against the backdrop of the Second Amendment and the Supreme Court’s most recent rulings. Litigants on both sides will claim that Rahimi favors their respective positions.
Government lawyers protecting gun restrictions will point to Rahimi as proof that statutory gun bans applied to individuals for their specific circumstances can pass the constitutional test. In opposition, gun rights activists will point to Rahimi’s discussion of “dangerous” individuals and assert that neither undocumented aliens nor nonviolent felons fit into that category.
Nobody should be surprised if the circuit courts end up (again) disagreeing about who can and cannot be denied access to firearms under Rahimi, and the issue boomerangs back to the Supreme Court next year.
Related Resources:
- Ghost Gun Manufacturer Liable for $7.8 Million Judgment (FindLaw’s Courtside)
- Background Checks at Gun Shows: The Latest Developments (FindLaw's Federal Courts)
- Away at College? How and Where Do You Vote? (FindLaw's Law and Daily Life)
