The Second Amendment to the United States Constitution protects the right of individual citizens to keep and bear arms. Historically, this right has served as a safeguard against tyranny and a cornerstone of a well-regulated militia for national defense. The recent court case in the 9th Circuit Court of Federal Appeals has supercharged public debate over Second Amendment limitations. The heart of the case revolves around the rights of felons to own guns.
Background: Second Amendment Rights and Felon Disenfranchisement
Following a felony conviction, some states impose restrictions or complete bans on gun ownership. The idea that those who commit serious crimes cannot be trusted with firearms is the basis for this disenfranchisement. Proponents of these restrictions argue that they promote public safety and reduce gun violence.
Second Amendment supporters argue that these restrictions are unconstitutional infringements on the rights of law-abiding citizens. Advocates note that the Second Amendment does not mention any exceptions for felons. Any form of disenfranchisement unfairly punishes people who have already served their sentences.
The Case: US v. Duarte
On the evening of March 20th, 2020, Steven Duarte was arrested in Inglewood, CA, for violating 18 U.S.C 922(g)1. This statute prohibits firearm possession by anyone convicted of a felony with a sentence of more than one year. Mr. Duarte’s criminal record in California revealed five prior non-violent convictions. Each of these convictions carried a potential prison sentence of at least one year.
- Vandalism, California Penal Code 594(a)
- Felon in possession of a firearm, id 29800(a)(1)
- Possession of a controlled substance, California Health & Safety Code 11351.5
- Two convictions for evading a peace officer, California Vehicle Code 2800.2
who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
https://www.law.cornell.edu/uscode/text/18/922
Mr. Duarte maintained his innocence by pleading not guilty. Subsequently, he received a trial before a jury who ultimately found him guilty. The defendant received a sentence of 51 months in prison. Facing several years in prison, Duarte argued that his Second Amendment rights were violated, and promptly appealed the ruling. The appeal went before a three-judge panel of the 9th Circuit Court of Appeals, a court known for its skepticism towards Second Amendment rights
One of the most interesting facts about this case is that the Public Defender’s office represented the defendant. Public Defenders are often seen as a last resort; however, in this case they all have bright futures as pro 2nd Amendment attorneys.
Ninth Circuit Court Ruling
In a split decision (2-1), the Ninth Circuit Court of Appeals ruled in favor of Duarte. The ruling upheld Duarte’s claim that the Second Amendment protects the right of non-violent felons to own firearms. The majority opinion stated that this right should extend to non-violent felons who have completed their sentences and reintegrated into society. Judge Carlos Bea stated, “We do not base our decision on the notion that felons should be prohibited from possessing firearms,” “the very enumeration of the Second Amendment right in our Constitution takes out of our hands the power to decide for which Americans that right is really worth insisting upon.” The court’s decision focused on the text of the Second Amendment itself and noted that it does not explicitly exclude felons from gun ownership.
The majority opinion was specific in their ruling with regards to “violent felons” vs. “non-violent” felons as Duarte had no violent criminal record. Judge Bea noted that violent felonies in the 1700s and 1800s were often punishable by death, forfeiture of assets, or a life sentence. Bea said, “venture to assume it settled that these offenses were of a kind the founding generation thought serious enough to warrant the permanent loss of the offender’s Second Amendment right.” Historically, these types of felonies resulted not only in the offender’s loss of their Second Amendment rights but ALL of their rights.
The Precedent
The majority opinion was based primarily on the precedent set by the Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen. Before the Bruen decision, most courts followed a two-step approach to gun law analysis that was vague and flexible and allowed courts to uphold most gun regulations based on a balance between a “substantial governmental interest” and the Second Amendment. In challenges to existing gun laws, the government always argues that preventing crime is its most compelling interest, often overshadowing other concerns.
Bruen introduced a new framework that courts were to apply when determining the constitutionality of any law abridging Second Amendment rights. The Bruen framework first mandates that firearms laws must be consistent with the nation’s historical tradition of firearm regulation. If they are not the burden falls on the government to prove that the law “is part of the historic tradition that delimits the outer bound of the Second Amendment”
As applied to Duarte, the court established that carrying a handgun publicly for self-defense is within the Second Amendment’s plain language. Furthermore, the court established that Duarte belongs to the group of “the people” protected by the Second Amendment. The government’s case did not dispute these two points; rather, it relied on precedent established by a previous 9th Circuit Court ruling (Vongxay).
The government’s case relied primarily on the Supreme Court’s precedent in Vongxay v. US (2010), which only protects the Second Amendment rights of “law-abiding” citizens. The majority opinion dismissed the government’s claim and noted that the Vongxay decision did not apply the analysis later established by Bruen. Judge Milan Smith, in his dissent, disagreed and wrote that Vongxay binds a three-judge panel until the full nine-judge panel of the 9th Circuit Court overturns that decision.
Legal Repercussions and Second Amendment Implications
This ruling is a significant victory for Second Amendment advocates and could have far-reaching implications for gun control laws in California and other states within the Ninth Circuit’s jurisdiction. The fact that the most anti-gun federal appeals court issued this ruling minimizes the chance for appeal.
Firearm Restrictions: California law prohibits individuals convicted of felonies from possessing firearms. This can include a wide range of offenses, even non-violent ones. A violation of this law can result in significant jail time and fines. Besides facing criminal penalties, a felony conviction can lead to a lifetime prohibition on buying or owning firearms. Numerous appeals cases are expected to be heard soon, challenging convictions based on the precedent set by US v. Duarte.
Second Amendment Challenges: The Second Amendment to the U.S. Constitution guarantees the right to keep and bear arms. There is ongoing debate about how this right applies to felons, particularly non-violent ones. Some argue that a complete ban on firearm ownership for non-violent felons is an unconstitutional infringement on this right. Others argue that the government has a compelling interest in restricting firearm ownership by those who have committed serious crimes, even non-violent ones.
Legal Landscape: The courts have wrestled with the balance between public safety and Second Amendment rights for felons. While the Supreme Court recognizes a right to gun ownership, it also acknowledges that this right is not unlimited. Lower courts have reached varying decisions on the issue of firearm restrictions for non-violent felons. The Bruen decision and now the Duarte decision have turned the tide in the battle for protection of individuals Second Amendment rights.
What This Could Mean for Non-Violent Felons in California
Challenges to Reintegration: A lifetime ban on firearm ownership can make it difficult for non-violent felons to reintegrate into society. Many jobs require a clean background check, and a firearms restriction can disqualify applicants. This can limit employment opportunities and make it harder for felons to support themselves and their families.
Self-Defense Concerns: Some non-violent felons may feel vulnerable without the ability to own a firearm for self-defense. This can be a particular concern for those who live in high-crime areas. The lack of a firearm may make them more likely to be victims of crime again.
Second Chance Considerations: There is a growing movement to give non-violent felons a second chance when it comes to gun ownership and other constitutionally protected rights. This could involve allowing them to petition the court to have their gun rights restored after a certain period has passed and they have demonstrated good behavior. The California legislature must enact new legislation to clarify and codify a solution.
Conclusion: Ongoing Legal Debate and Second Amendment Rights Restoration
The issue of firearm restrictions for non-violent felons is complex and requires balancing public safety and Second Amendment rights. There is no easy answer; however, the precedent set in Duarte is clear, and the debate will likely continue for some time. Several potential solutions are possible, such as allowing non-violent felons to petition for gun rights restoration or creating a system for safe and supervised gun ownership for those deemed low-risk. Additional court cases, such as Range v. Garland and US v. Rahimi, in front of the Supreme Court this term, may heavily impact the Duarte case should the government appeal.
Given the specific wording and test mandated by Bruen, many of the nation’s existing firearms laws governing non-violent felons will need to be reconsidered. Will states attempt to legislate around the Bruen and/or Duarte decision? Could the Duarte precedent be applied to other constitutionally guaranteed rights? Will existing ATF regulations need to be modified based on this precedent? Will concealed carry permit laws need to be reconsidered? These questions and many more will likely be front and center in the continuing national gun control debate.
Additional Information
Upcoming Firearms Cases in front of the Supreme Court
- Range v. Garland-3rd Circuit Court of Appeals-Can a convicted felon possess a firearm
- US v. Rahimi-5th Circuit Court of Appeals-Can a person under a domestic restraining order possess a firearm.
- US v. Daniels-5th Circuit Court of Appeals-Can an “unlawful” user of a controlled substance possess a firearm.
