Yesterday, the U.S. Supreme Court granted, vacated, and remanded for reconsideration in light of United States v. Rahimi eight Second Amendment decisions pending writs of certiorari. All but one of the cases have to do with persons prohibited from possessing firearms under federal law. Five of the cases deal with 18 U.S.C. § 922(g)(1), i.e., the “felon-in-possession ban;” one case is about § 922(g)(3), which dispossesses illegal drug users; one deals with § 922(g)(8), the provision upheld against a facial challenge in Rahimi, and the final regards New York’s concealed-carry regulations passed in the wake of Bruen.
It will be interesting to see how the § 922(g)(1) cases play out. Among the remanded cases includes the Third Circuit’s decision in Range v. Attorney General, which held the provision unconstitutional as applied to a Pennsylvania man convicted in the 1990s of welfare fraud to obtain food stamps.[1] On remand, the Third Circuit will presumably come to the same conclusion, as Rahimiconcluded only that the government may temporary disarm someone who has been “found by a court to pose a credible threat to the physical safety of another.” It will be quite difficult for the government to argue that Mr. Range’s conviction for welfare fraud makes him a threat to the physical safety of others.
The other four § 922(g)(1) cases that were vacated and remanded by the Supreme Court all concluded that the provision was constitutional across the board and thus not subject to as-applied challenges. Whether the lower courts reach the same conclusion on remand will likely depend heavily on the particular convictions of each challenger. Interestingly, the Tenth Circuit held in a post-Rahimi opinion that Rahimi did not “indisputably and pellucidly” abrogate its (now vacated and remanded) decision in Vincent v. Garland, which concluded that § 922(g)(1) is constitutional across the board. Whether or not the Tenth Circuit modifies its analysis on remand is unclear. At the very least, it would seem odd if the court did not at least address Rahimi’s impact in somewhat greater depth.
In United States v. Daniels, the vacated and remanded Fifth Circuit decision holding § 922(g)(3) unconstitutional as applied to a user of marijuana, I suspect that the court will come to the same conclusion. Unless the government can point to some specific evidence showing that people who use marijuana are dangerous to the physical safety of others, Mr. Daniels’ disarmament is unconstitutional. Indeed, considering that the Biden administration is in the process of re-scheduling marijuana’s federal drug classification, it would be somewhat peculiar for the same administration to suggest in court that those who use that drug are so dangerous that they may be stripped of a constitutional right.
The vacated § 922(g)(8) case is an unpublished per curiam opinion from the Fifth Circuit upholding a district court’s dismissal of the charge based on the now reversed ruling in Rahimi. Considering that the defendant in this case was the subject of a restraining order because he beat his domestic partner, I expect that the Fifth Circuit will conclude that § 922(g)(8) is constitutional as applied to him.
Finally, the Court also vacated and remanded the Second Circuit’s decision in Antonyuk v. Chiumento, which upheld most of New York’s concealed-carry regulations that were enacted a mere eight days after Bruen. The only regulations at issue in that case that could conceivably be impacted by Rahimi are the licensing requirements dealing with applicants’ “good moral character.” The Second Circuit endorsed licensing schemes with individualized, discretionary methods of review, such as New York’s, which requires applicants to show that they have “the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” To facilitate this inquiry, New York law requires licensing officials to obtain from all concealed-carry license applicants four character references, contact information for co-habitants, and social media accounts. Although the Second Circuit upheld a preliminary injunction against the social media provision, it vacated the injunction with respect to the other requirements. Rahimi will probably not change much on remand, as the state will claim that its licensing provisions ensure that those who are a danger to the physical safety of others do not have the ability to carry handguns in public. The rest of the provisions at issue in Antonyuk dealt with enumerated “sensitive locations,” from which the state banned firearms, so Rahimi’s analysis will likely be inapposite to this issue.
However, Antonyuk’s vacatur may have a greater impact on another case pending before the Second Circuit that challenges New York’s ban on carry in Times Square and on public transportation. At oral argument in Frey v. Nigrelli, the judges seemed somewhat skeptical of the state’s argument (particularly with respect to public transportation) but appeared likely to uphold the provisions because Antonyuk endorsed gun bans in “quintessentially crowded areas and public forums.” With that decision no longer constituting binding precedent, the Second Circuit is free to fashion whatever analysis for sensitive locations it feels best comports with Bruen before the Antonyuk panel gets the chance to republish its ruling with respect to that issue.
[1] Although classified as a misdemeanor under Pennsylvania law, the crime is punishable by imprisonment for a term greater than two years, so it falls within the ambit of § 922(g)(1).