Sean Phillips is a rising third year law student at Fordham University School of Law. He is a Senior Articles Editor on Fordham Law Review, where his note, Long Range Analogizing After Bruen: How to Resolve the Circuit Split on the Federal Felon-In-Possession Ban, was published this past April.

Since the Supreme Court decided New York State Rifle & Pistol Association v. Bruen two years ago, the landscape of firearms law has begun a radical transformation. Courts across the country are grappling with what Bruen means for the constitutionality of many extant firearms laws.  Under Bruen, a court hearing a Second Amendment challenge asks first whether the individual and his or her proposed conduct is covered by the Second Amendment’s right to bear arms, and if so, second, whether the government has proven that the law at issue is consistent with the nation’s history and tradition.  This second step places the burden on the government to proffer historical examples of laws that are similar to the challenged modern firearm law, with the added caveat that historical examples from, for example, the Founding-era, are particularly relevant.  Although not all lower courts follow the most persuasive interpretation of Bruen, many post-Bruenchallenges have nonetheless succeeded, and more federal courts have begun ruling on the various so-called “prohibited persons” provisions of 18 U.S.C. § 922(g).

§ 922(g) disarms, with the threat of imprisonment, broad categories of people based on status. Some courts have found scant historical analogues to uphold such sweeping disarmament under Bruen. For instance, the Fifth Circuit in United States v. Daniels considered § 922(g)(3), which prohibits any “unlawful user” of a controlled substance from possessing a firearm.  There, the Fifth Circuit found the statute inconsistent with the nation’s historical tradition, and thus unconstitutional as applied to Daniels, who was sober when arrested but fell under the statute’s sweep due to his regular cannabis use.  Another high profile case arose in United States v. Rahimi, where the Fifth Circuit considered § 922(g)(8), which prohibits the possession of a firearm by individuals subject to domestic violence restraining orders, and held that § 922(g)(8) violates the Second Amendment on its face.  The Supreme Court granted cert. in Rahimi, held oral arguments in November, and is likely to issue a ruling in the coming weeks.

The Split over 18 U.S.C. § 922(g)(1)

Although the above two issues remain contested, one particular provision, § 922(g)(1), the so-called “felon-in-possession” law, has faced particularly many Second Amendment challenges. This, of course, is the law that prohibits an individual from possessing a firearm if he or she has ever been convicted of a crime punishable by imprisonment for more than a year.  At present, at least five U.S. Courts of Appeals have directly ruled on the felon-in-possession law, creating a circuit split on the law’s constitutionality over the last year.

These rulings can be separated into a few buckets.  Two circuits upheld the felon-in-possession law simply by following circuit precedent and not applying Bruen’s test.  In the Tenth and Eleventh circuits, the courts in Vincent v. Garland and United States v. Dubois held that the Supreme Court’s decision in Bruen did not conflict with prior circuit-level precedent in which felon-in-possession law had been held constitutional.  However, the Tenth Circuit did also suggest that the law’s constitutionality was confirmed by dicta in Bruen and Heller.

In contrast to the above pair of cases, the Eighth Circuit in United States v. Jackson rejected a Second Amendment challenge to a felon-in-possession conviction by applying Bruen.  There, Jackson challenged his § 922(g)(1) conviction, arguing that the law violated the Second Amendment as applied to him, as his underlying convictions (drug offenses) were non-violent and did not show him to be more dangerous than the typical law-abiding citizen.  In applying Bruen’s test, the Eighth Circuit rejected that argument and held that relevant historical examples supported the validity of the felon-in-possession law.  These examples included: (1) the seventeenth century British government’s disarmament of both non-Anglican protestants and later Catholics, when each group refused to alter its religious beliefs, (2) in Founding-era America, the various instances of state governments disarming Native Americans and, occasionally, religious minorities such as Catholics, and (3) the Revolutionary War-era laws in America that disarmed those who refused to take a loyalty oath.  The Eighth Circuit held that these historical examples might be read either to support the broad authority of legislatures to disarm those determined to be non-law-abiding or, at minimum, to support the legislature’s authority to disarm those determined to be more dangerous than a typical law-abiding citizen.  Without expressly deciding which rationale was more persuasive, the court noted that even in the latter, narrower description of the legislatures’ power, the fact that whole groups were disarmed in the historical examples proved that an individualized determination of dangerousness as to each felon was not required.  On that basis, the court found it irrelevant that Jackson’s previous convictions were non-violent and thus upheld his § 922(g)(1) conviction.

In the Third Circuit, the felon-in-possession law was held unconstitutional as-applied to Bryan Range, a man with one prior conviction (for one count of welfare fraud in state court in 1995).  Range brought civil suit seeking a declaration that § 922(g)(1) was unconstitutional as applied to him, and in an en-banc ruling, the Third Circuit, finding no historical support for disarming someone like Bryan Range, held in Range v. Attorney General that § 922(g)(1) as applied to Range violated his Second Amendment right.  The court considered some of the same historical examples that the Eighth Circuit above relied on (including periodic disarmament in early America of African Americans, Native Americans, Catholics, and Quakers).  Here, however, the court asserted that although Bruen did not require that modern firearm laws perfectly replicate historical firearm laws, any analogy to the disarmament of those groups (African Americans, Native Americans, Catholics, and Quakers) would be too broad.  The court held not merely that Range could no longer, twenty eight years after his first conviction, be disarmed, but also that Range’s disarmament immediately following his 1995 conviction was unconstitutional.

In dissent, Judge Krause argued that the majority should have ruled for Range in a purely prospective way, by holding merely that any further disarmament of Range would be unconstitutional and not ruling on whether the past disarmament of Range was unconstitutional.  Under this proposed approach, the court would ask whether Bryan Range had proven himself to presently be law-abiding and responsible, such that it is no longer constitutional to disarm him.  Because the existing statutory options for a restoration-of-rights procedure have been severely limited for decades, Judge Krause acknowledged, this sort of procedure might be necessary to allay constitutional concerns with the otherwise permanent nature of § 922(g)(1)’s disarmament.  Moreover, Judge Krause argued that this approach would (1) better adhere to judicial restraint, (2) potentially mirror the historical process of rearmament, wherein a citizen would be rearmed upon coming forward to swear a loyalty oath not because his or her past disarmament was invalid but because he or she now signaled his or her willingness to follow the law,  and (3) avoid disrupting the key role of § 922(g)(1) as a law enforcement tool.  Although Judge Krause’s approach might have reached a result similar to the majority’s and ultimately permitted Range to again possess arms, her approach, unlike the majority’s, would only do so upon Range proving himself to be presently law-abiding.

Recently, the Ninth Circuit joined the Third Circuit by holding in United States v. Duarte the felon-in-possession law unconstitutional as-applied to a particular criminal defendant.  Like the Third and Eighth circuits, the court considered the historical examples of disarmament of British Loyalists, Catholics, Native Americans, and African Americans.  But unlike the Third Circuit, which quickly dismissed any analogy to those historical episodes as too broad, the Ninth Circuit provided more pointed reasons for dismissing any such analogy.  Specifically, the court noted that at the time of disarmament, some of the aforementioned groups were not quite part of the “People” whom the Constitution protected. Additionally, the court observed that those historical laws were aimed not at preventing a general risk of violence, but at preventing a specific risk of armed rebellion by politically or ideologically divided groups.  Further, the court noted that the specific mechanisms of the historical disarmament laws also did not support the felon-in-possession law.  Some of the historical laws, for instance, still permitted firearm possession for self-defense, or banned not possession of firearms by groups but only sale to certain groups, or permitted one’s disarmament to be lifted if one came forward to swear a loyalty oath.  Those more nuanced laws stand in contrast, the Ninth Circuit noted, to § 922(g)(1), which plainly and categorically disarms felons for life.  On this reasoning, the court found that § 922(g)(1) violated the Second Amendment as applied to Duarte.

How to Resolve the Split?

In my recently published piece in the Fordham Law Review, I argue that the historical disarmament laws from the Founding-era confirm § 922(g)(1)’s constitutionality.  Those laws show that legislatures categorically disarmed certain groups by status and often did so on their own, unchecked determination of which groups were not trustworthy to follow the law.  On that basis, I argue that § 922(g)(1) should survive Bruen’s test.  However, because it is unlikely that § 922(g)(1) will be held constitutional in every application, I further argue that the Court should adopt Judge Krause’s proposed approach of providing purely prospective, injunctive relief for those (and only those) who show themselves to again be law-abiding.

First, the historical laws described above disarmed whole groups merely by status (often race or religion), and in doing so, often swept up plenty of peaceful individuals.  To be sure, most of those historical laws are deeply prejudicial, and would likely now be held to violate the core of the First Amendment’s Free Exercise clause or the Fourteenth Amendment’s Equal Protection clause.  But § 922(g)(1) does not include any such First Amendment problem, and to the extent it is overinclusive in disarming all felons, that is indeed an Equal Protection issue rather than a Second Amendment issue.  For the purposes of Second Amendment doctrine, those historical laws suggest that legislatures in the Founding-era had the authority to categorically disarm groups deemed not trustworthy to follow the law.  Crucially, the fact that those historical laws often incidentally disarmed peaceful citizens, or even wholly peaceful groups, demonstrates that the legislatures were given deference in their determination of which groups could not be trusted to follow the law.  This deference permitted legislatures to categorically disarm certain groups without case-by-case determinations of any one person’s dangerousness.  In light of those discriminatory historical laws, § 922(g)(1) appears to be a comparably more reasonable application of legislatures’ power to disarm those deemed not trustworthy to follow the law.  Rather than disarming a group by race, religion, or ideology, § 922(g)(1) reflects a legislative determination that those who have violated the law are not trustworthy to follow the law going forward.  That determination is crude but not wholly unreasonable; one 2022 study analyzed recidivism rates among federal offenders, and found that from a group of those released in 2010, over 60% of violent offenders and over 38% of nonviolent offenders were rearrested sometime within the next eight years.  Although Founding-era legislatures did not need to put forth empirical data to justify their determination of who was not trustworthy to follow the law, the recidivism data above suggests that § 922(g)(1) would likely satisfy even that sort of stringent, ahistorical requirement.

Second, although § 922(g)(1) appears constitutional under Bruen’s test, the Supreme Court, if it does permit as-applied challenges to the statute, should follow the narrow, prospective relief described in Judge Krause’s dissent.  Specifically, the Court should permit as-applied challenges to § 922(g)(1) when brought in a civil actions and seeking a declaratory judgment, such that the felon bringing the suit can again lawfully possess firearms.  In such a proceeding, a felon would have the burden of proving himself to presently be a law-abiding and responsible citizen, such that he is again entitled to bear arms.  However, the Court should limit this to civil suits, and not permit Second Amendment defenses in § 922(g)(1) criminal convictions.  There are strong justifications for such a distinction.  As the Ninth Circuit noted, some historical disarmament laws did indeed allow for rearmament if one came forward and swore a loyalty oath.  Accordingly, a civil suit procedure wherein a felon must come forward and prove his or her law-abiding, responsible status would bring § 922(g)(1) closer to mirroring history and tradition.  For that same reason, permitting a Second Amendment challenge in a § 922(g)(1) criminal trial is inimical to the Second Amendment; any felon who has violated § 922(g)(1) and is on trial for that charge has, in fact, recently proven him- or herself not to be law-abiding and responsible.  This approach thus permits a citizen to preemptively challenge his or her § 922(g)(1) disarmament, but not retroactively challenge a § 922(g)(1) conviction.  Although the Supreme Court seems unlikely to rule on the § 922(g)(1) issue this year, it is possible that Rahimi provides guidance on the specifics of how to apply Bruen; nevertheless, the sheer volume of § 922(g)(1) convictions raises the likelihood that this circuit split will spread until it is resolved by the Supreme Court.