Author: Dallas federal crime defense lawyer John Helms
Discover the complexities of federal firearm possession laws and the recent Supreme Court’s grant of certiorari in United States v. Rahimi case. Dallas federal crime defense lawyer John Helms sheds light on the confusion surrounding firearm regulations and the impact of recent court decisions. Stay informed about the constitutionality of gun possession by convicted felons and those under domestic violence protective orders. If you or a loved one faces federal firearm possession charges, consult an expert criminal federal defense lawyer for the best possible outcome.
Federal Firearm Possession Laws: The Supreme Court Grants Certiorari in the Fifth Circuit’s United States v. Rahimi Case.
For those of us who practice criminal defense in the federal courts in Texas, federal firearm possession cases are of particular interest. According to the Federal Sentencing Commission, in 2021, two of the top five federal districts for the most convictions for felons in possession of firearms were in Texas: the Northern District of Texas (third place with 266 convictions), and the Western District of Texas (fifth place with 253 convictions). See Federal Sentencing Commission, “Quick Facts—Felon In Possession of a Firearm, Fiscal Year 2021,” available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Felon_In_Possession_FY21.pdf. In the past twenty-five years, the United States Justice Department has made gun crime one of its top law enforcement priorities.
The federal firearm possession laws are in a state of confusion, however, in the wake of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111 (2023). In Bruen, the Supreme Court held unconstitutional a New York law requiring applicants for a concealed pistol carry permit to show “proper cause” or a special need for one. What has caused so much confusion, however, is the Supreme Court’s command that courts must assess the constitutionality of firearm regulations under the Second Amendment according to “the Nation’s historical tradition of firearm regulation.” Id. at 2130.
The federal appeals courts have already struggled to determine whether gun regulations, at some point in the past, indicated historical acceptance of laws prohibiting gun possession by felons or those deemed dangerous by courts. These are extremely important issues for the country, because, as Supreme Court Justice Alito stated in 2019, the federal law prohibiting gun possession by felons “probably does more to combat gun violence than any other federal law.” Rehaif v. United States, 139 S.Ct. 2191, 2201 (2019) (Alito, J., dissenting).
In the immediate aftermath of Bruen, multiple conflicting opinions have emerged. First, in United States v. Jackson, 69 F.4th 495, 503 (8th Cir. 2023), the Eighth Circuit concluded that criminalizing possession of a firearm by any convicted felon was constitutional, because it was consistent with historical firearm regulations. The Eighth Circuit approached the issue by considering whether a broad prohibition on possession by any felon was consistent with historical practice.
In Range v. Attorney General, 69 F.4th 96 (3rd Cir. 2023) (en banc), , however, the en banc Third Circuit held that the federal statute prohibiting gun possession by a felon was unconstitutional as it applied to a defendant who had been convicted of a non-violent crime—in that case, fraud to obtain a government benefit. The Third Circuit came to this conclusion by looking for historical analogues for disarming felons convicted of non-violent offenses and concluding that they did not believe there were any that were both sufficiently analogous and sufficiently old. As such, the Third Circuit looked for historical analogues to specific felony crimes and rejected the Eighth Circuit’s approach of considering felonies as a whole. Judge Krause’s dissent forcefully argued that the majority opinion would have a “seismic effect” on attempts to reduce gun violence and that there were sufficiently analogous historical regulations to justify disarming all felons. See id. at 118 (Krause, J., dissenting).
In United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023), the Fifth Circuit held unconstitutional the federal law making it a crime for a person subject to a civil domestic violence protective order to possess a firearm. See 18 U.S.C. §922(g)(8). In explaining its reasoning, the Fifth Circuit looked for more specific historical analogues and called the law prohibiting a person from possessing a firearm while subject to a domestic violence protective order an “outlier[ ] that our ancestors would never have accepted.” Id. (quoting New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2133 (2023)). Judge Krause, who dissented from the Third Circuit’s opinion in Range, called the Rahimi opinion “deeply disturbing.” Range v. Garland, 69 F.4th 96, 118 (3rd Cir. 2023) (Krause, J., dissenting).
At least one federal district court has disagreed with the holding in Rahimi and held that the federal statute prohibiting gun possession by a person under a domestic violence protective order is constitutional, again, using a historical analysis. See United States v. Silvers, 2023 WL 3232605 (W.D. KY., May 23, 2023).
The problem is one of the Supreme Court’s own making. The Supreme Court’s own words have proved irreconcilable with the historical analogy approach the Court has mandated. For example, in Bruen, the Supreme Court struck down as too recent a firearm law enacted in 1911, which had no historically analogous antecedent, according to the Supreme Court majority. However, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court identified four firearm laws that it identified as presumptively valid under a historical analysis, but three of those four were more recent than the law the Supreme Court declared invalid in Bruen. See Bruen, 142 S.Ct. at 2189 (Breyer, J., dissenting).
This mess has called into doubt whether the federal law prohibiting convicted felons from possessing firearms is unconstitutional, in whole, or as to non-violent felons. See A. Alschuler, “Do Convected Felons Have A Right To Bear Arms,” Justicia’s Verdict, June 21, 2023, available at https://verdict.justia.com/2023/06/21/do-convicted-felons-have-a-constitutional-right-to-bear-arms. We also have a split of authority about whether the federal government can constitutionally prohibit the possession of a gun by people under a protective order for committing acts of domestic violence.
On June 30, 2023, however, the United States Supreme Court granted a petition for a writ of certiorari in the Rahimi case, in which the Fifth Circuit held that persons under a protective order for committing domestic violence could not be prohibited from possessing a firearm. This means that the Supreme Court is likely to overturn the Rahimi decision. Hopefully, the Supreme Court will also provide some clarification about the constitutionality of the federal statutes prohibiting convicted felons from possessing firearms, such as whether only violent felons, or all felons, may be prohibited from possessing them.
If you or a loved one has been accused of a federal firearm possession crime, you should consult with a federal criminal defense lawyer who has expertise in this particular and changing area. I have personally handled federal firearm cases both as a federal prosecutor and as a criminal defense lawyer. I keep abreast of the frequent changes in the law in this area, and my goal is always to obtain the best possible outcome for my clients.