Appellate and District Courts Grapple with Firearms Crimes Challenges Post-Bruen
Less than six months ago, the U.S. Supreme Court changed long-standing law related to how courts should evaluate restrictions on Second Amendment rights to have firearms. That case was New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). In the wake of that case, defendants across the country are now challenging whether restrictions (criminal laws) covering the right to possess firearms are still constitutional.
Fifth Circuit Finds Possession of a Firearm after receiving a protective order unconstitutional: Rahimi, No. 21-11001
Rahimi's conduct and charges
Rahimi engaged in several activities with firearms in the Dallas Metroplex area. Officers obtained a search warrant and found guns. He also admitted that he was subject to a “civil protective order” entered February 5, 2020 by a Texas state court:
“The protective order restrained him from harassing, stalking, or threatening his ex-girlfriend and their child. The order also expressly prohibited Rahimi from possessing a firearm.”
Rahimi was indicted for possession of a firearm while under a domestic violence restraining order in violation of 18 USC 922(g)(8). He moved to dismiss the indictment under the grounds that it was unconstitutional but he realized that previously established precedent overruled his claim. His claim was denied, and he pled guilty. He appealed that finding and went to the fifth circuit which originally denied his claim but ordered rehearing after the Bruen case.
The Holding in Bruen as applied here:
In Bruen the court indicated that for a prohibition against firearms to stand the government must prove that the law is consistent with the historical tradition of firearm regulation:
“…the Supreme Court held that “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” …. In that context, the Government bears the burden of “justify[ing] its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”… Put another way, “the [G]overnment must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
The prosecutors argued that Heller did not foreclose the issue because “Heller and Bruen add a gloss on the Second Amendment that restricts its applicability to only “law-abiding, responsible citizens,” and Rahimi is not a law-abiding responsible citizen as evidenced by his escapades and prior protective order. However the court stated the following about their argument “(1) it is inconsistent with Heller, Bruen, and the text of the Second Amendment, (2) it inexplicably treats Second Amendment rights differently than other individually held rights, and (3) it has no limiting principles.
First it is important to note that a review of the relevant law in Bruen and District of Columbia vs Heller, 554 U.S. 570 (2008), start the inquiry around the idea that the second amendment applies to everyone except for those that have been historically prohibited against firearm possession:
“Heller simply uses the phrase “law-abiding, responsible citizens” as shorthand in explaining that its holding (that the amendment codifies an individual right to keep and bear arms) should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . ..” Heller, 554 U.S. at 626-27.
But even moreso, the idea that it is only for “law-abiding responsible citizens” lacks a true limiting principle:
“Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “non- law abiding” people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?”
The Bruen Test
The court then analyzed whether “Rahimi’s right to keep and bear arms may be constitutionally restricted by operation of 922(g)(8).”
Bruen indicates that courts must determine whether “the Second Amendment’s plain text covers an individual’s conduct[.]” If it does, then the constitution protects that conduct and the Government “must justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” In order to do this the Government must point to “historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.” The government must show a sufficient analogue to the proposed statute.
The court noted that “Rahimi’s possession of a pistol and a rifle easily falls within the purview of the Second Amendment.” This resolved the first portion of the test. In turn for the second portion of the test, the prosecutors submitted English and American Laws providing disarmament of “dangerous” people, English and American “going armed” laws, and colonial and state surety laws.
English and American Laws
The court noted the first such law, the English militia act of 1662, where officers of the Crown could “seize all arms in the custody or possession of any person” whom they “judge[d] dangerous to the Peace of the Kingdom.”
However, the court went into detail about the history of this law and how it was modified and limited by the 1689 English Bill of Rights, which “has long been understood to be the predecessor to our Second Amendment.” The court indicated that knowing this history defeated any utility of the Militia Act as a historical Analogue for 922(g)(8).
Next the government pointed to laws in colonies that disarmed classes of people considered to be dangerous including those that refused to take an oath of allegiance, slaves and native Americans. Again, the court did not find these to be analogues because they were disarming groups or classes of people but not because of findings of credible threats to identified potential victims (like the protective order). Further, “[t]he purpose of these “dangerousness” laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another.” The court disposed of these as potential analogues.
“Going Armed” Laws
The government also offered several types of laws that were focused around “going armed to terrify the King’s subjects.” However, these laws either did not provide for forfeiture of the weapons (as in you did not have to give them up, you could just not ride around with them) or they eventually dropped the forfeiture portions of their statutes. Further, “Going Armed” laws disarmed an offender after a criminal conviction as opposed to laws that 922(g)(8) which disarms people who have been civilly adjudicated to be a threat to another person. Also, the “going armed” laws were aimed at curbing threats to society generally as opposed to identified individuals. Thus they were determined not to be a suitable analogue.
Lastly, the government pointed to surety laws: “At common law, an individual who could show that he had “just cause to fear” that another would injure him or destroy his property could “demand surety of the peace against such person… If the party of whom surety was demanded refused to post surety, he would be forbidden from carrying a weapon in public absent special need.”
While these were close, the “historical surety laws did not prohibit public carry, much less possession of weapons, so long as the offender posted surety.” This was much different from 922(g)(8) which “works an absolute deprivation of the right, not only publicly to carry, but to possess any firearm, upon entry of a sufficient protective order.”
The court found that the government’s proposed analogues were insufficient to meet the Bruen test and as such the court determined that “the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.”
The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.
Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier that our ancestors would never have accepted.” Id. Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.
Texas District Court Finds 922(n) Receiving Firearm While Under Indictment Unconstitutional: Quiroz
In March 2022, Quiroz was charged by way of a federal indictment with: making a false statement during the purchase of a firearm under 18 U.S.C. 922(a)(6) (Count 1), and illegal receipt of a firearm by a person under indictment under 18 U.S.C. 922(n). A jury convicted Quiroz of both counts, and Quiroz moved to set aside the verdict pursuant to Fed. R. Crim. P. 29 based on the Supreme Court’s decision in Bruen.
In Bruen, the Supreme Court changed the applicable framework for analyzing firearm regulations under the Second Amendment. The Court held a new standard courts must follow in making this analysis:
“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
In analyzing Quiroz’ Rule 29 claim, the district court delved into the history of the Second Amendment and Section 922(n). The court noted that previous Supreme Court cases involving the Second Amendment, including Bruen, dealt with the regulations of restricting “where” someone can keep and bear arms, whereas 922(n) restricts “who” can keep and bear arms.
After a lengthy historical and procedural analysis, the district court concluded that it “is skeptical that the Government here, or in any other court, could defend 922(n)’s constitutionality.” Ultimately, the district court found that Bruen dramatically changed the legal landscape involving the Second Amendment and who may possess firearms. “The Bruen Court made the constitutional standard ‘more explicit’ to eliminate ‘asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearm restriction.’”
In sum, the district court concluded:
The Second Amendment is not a ‘second class right.’ No longer can courts balance away a constitutional right. After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with the Nation’s historical tradition. The Government does not meet that burden.
Although not exhaustive, the Court’s historical survey finds little evidence that 922(n)-which prohibits those under felony indictment from obtaining a firearm-aligns with this Nation’s historical tradition. As a result, this Court holds that 922(n) is unconstitutional.”
Accordingly, the district court granted Quiroz’s motion and dismissed the indictment.
District Court Holds Portions of 922 Unconstitutional: United States v. Price
Randy Price was stopped by the police. During the stop police discovered a gun in the car with an obliterated serial number. Randy Price also had a prior felony conviction. Things were not looking good.
Price was indicted by a grand jury on Count One for being a felon in possession of a firearm (922(g)) and Count Two for possession of a firearm with an obliterated serial number in violation of 18 U.S.C. Section 922(k). Price filed a pretrial motion to dismiss under Federal Rule of Criminal Procedure 12 arguing that both Count One and Count Two were unconstitutional in light of the Bruen decision from SCOTUS.
The district court discussed how Bruen changed the legal landscape. Post-Bruen, courts are required to evaluate the scope of the Second Amendment in light of what it was understood to cover at the time the Second Amendment was originally adopted in 1791. Only regulations that would have been considered constitutional in 1791 can be considered constitutional today according to the U.S. Supreme Court.
The Government tried to argue that 922(k) did not prohibit conduct that is protected by the text of the Second Amendment because the requirement that guns have serial numbers is a “commercial regulation.” This was an absurd argument and honestly shows that the Government is grasping at straws here.
As the Price court pointed out, the regulation at issue (18 USC 922(k)) is not a commercial regulation. It is a law that criminalizes the mere possession of a gun after a serial number is altered in any way. The district court gave examples of how someone could die, give a serial-number-altered gun to their child by their will, and then the adult child would commit a crime in violation of 922(k) just by having the gun.
Once the district court determined 922(k) implicates the Second Amendment, it moved on to step-two of the analysis. At this step, the law is presumptively unconstitutional unless the Government can show that the law “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130. The historical analysis requires looking to what was going on at the Nation’s founding and ratification of the Second Amendment in 1791.
The district court engaged in a thorough historical analysis. As the district court pointed out, serial numbers were not required or even in common use in 1791. The first legal requirement for serial numbers did not appear until 1934. It was not until 1990 that the mere possession of a gun with an altered serial number became criminal.
The result, the district court said that 922(k) prohibiting the possession of a firearm with an altered serial number was UNCONSTITUTIONAL.
However, the district court upheld the 922(g) as constitutional. The court said that 922(g)’s prohibition on felons possessing firearms was consistent with the Nation’s historical tradition of firearm regulation.
Western District of Texas Vacates 922 Charge Based on Family Violence Protective Order: Perez-Gallan
In Perez-Gallan, 4:22-cr-00427-DC (W.D. Tex.), the same district court has ruled that 18 U.S.C. 922(g)(8) unconstitutional post-Bruen and granted the defendant’s motion to dismiss the indictment. Section 922(g)(8) makes it a crime for an individual who is subject to court order that-
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear or bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;
After applying a lengthy legal and historical analysis of Bruen’s new framework to the statute at issue, the court concluded that 922(g)(8) lacks supporting history and that Bruen mandates that a gun regulation’s constitutionality hinges solely on the historical inquiry. In conclusion, the court wrote:
“[T]his Court embraces Bruen’s charge. Thus, after sifting through the history , this Court finds that the Government did not prove that 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen. As a result, the Court holds that 922(g)(8) is unconstitutional under Bruen’s framework.
Takeaways: Expect more of this, but not for 922(g) Felon in Possession just yet.
Courts across the country are grappling with challenges based on Bruen right now. Various parts of 922 have been held unconstitutional by district courts. Expect more of these to be struck down in the coming months and years.
No court has yet struck down 922(g). It will take a very brave judge to be the first jurist to make that ruling. In the interim, smart attorneys and litigants will be raising these challenges pre-trial and in their timely 2255 motions wherever they can. The longer you can keep your challenge alive the more likely you are able to be able to benefit from a future favorable decision.