Second Amendment

Ban on gun possession by felons is unconstitutional as applied to some offenders, 9th Circuit rules

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A federal appeals court has ruled for a felon challenging the federal ban on gun possession by those convicted of crimes punishable by more than one year in prison.

In a 2-1 decision, the San Francisco-based 9th U.S. Circuit Court of Appeals said the law is unconstitutional as applied to Steven Duarte, a nonviolent offender who had served his prison time.

The San Francisco Chronicle, Courthouse News Service and the Volokh Conspiracy have coverage while How Appealing links to the May 9 opinion.

A dissenter argued that only law-abiding citizens were protected by the U.S. Supreme Court’s Second Amendment precedent.

Duarte’s previous convictions were for vandalism, possession of a controlled substance, evading a peace officer and being a felon in possession of a firearm. He was arrested in March 2020 by Inglewood, California, police officers who saw the car in which he was a passenger run a stop sign.

Duarte, who was sitting in the back seat, tossed a handgun outside the window after police activated their lights.

Duarte was sentenced to 51 months in prison after jurors found him guilty of violating the ban on gun possession by felons and by others convicted of crimes carrying penalties of more than a year in prison.

The 9th Circuit overturned Duarte’s conviction based on the violation of his Second Amendment rights.

The majority ruled the law is unconstitutional as applied to Duarte under the test established by the June 2022 U.S. Supreme Court decision New York State Rifle & Pistol Association Inc. v. Bruen, which found a right to carry a gun for protection outside the home.

The decision puts the burden on the government to establish a gun restriction is constitutional by showing it is consistent with the nation’s historical tradition of firearms legislation.

The government had argued that 18th-century felons had no right to possess a firearm because they faced execution and total estate forfeiture for their crimes.

But many felonies on the books at that time did not carry those punishments, the 9th Circuit said. And many crimes classified as misdemeanors at the founding are considered felonies today.

“A more faithful application of Bruen requires the government to proffer founding-era felony analogues that are ‘distinctly similar’ to Duarte’s underlying offenses and would have been punishable either with execution, with life in prison or permanent forfeiture of the offender’s estate,” the 9th Circuit said. The government failed to offer that evidence.

Judge Carlos T. Bea wrote the majority opinion, joined by Judge Lawrence VanDyke. Bea is an appointee of former President George W. Bush while VanDyke is an appointee of former President Donald Trump. The dissenter, Judge Milan Smith, is an appointee of former President George W. Bush.

Prosecutors are likely to ask the 9th Circuit to grant en banc review of the decision, University of California at Los Angeles law professor Eugene Volokh told Courthouse News Service.

Volokh said any review will likely be influenced by the U.S. Supreme Court’s pending decision in United States v. Rahimi, which considers the constitutionality of a law banning gun ownership by people subject to domestic-violence restraining orders.

“The question in Rahimi and the question in this case aren’t identical, but they share considerable similarities,” Volokh observed.

See also:

Would nearly all felon gun bans be struck down under new 3rd Circuit opinion? Dissenter thinks so

Chemerinsky: Supreme Court once again will consider the scope of gun rights

Supreme Court takes on first major gun case since landmark ruling last year softened regulations

SCOTUS will decide whether subjects of domestic-violence restraining orders can be banned from gun ownership

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