Section 922(g)(1) of Title 18 bars anyone ever convicted of any felony from ever possessing a gun.
Judge Carlton Reeves of the Southern District of Mississippi just dismissed an indictment charging a violation of § 922(g)(1). He ruled that, in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), section 922(g)(1) is unconstitutional as applied to Jessie Bullock, a man with felony convictions for “aggravated assault and manslaughter.” United States v. Bullock, ___ F. Supp. 3d ___, 2023 WL 4232309, at *2 (S.D. Miss. June 28, 2023).
As the judge noted, “Bruen articulated a new legal standard applicable to all Second Amendment challenges.” Id. at *29. Namely: “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, . . . the government must demonstrate that the regulation is consistent with this Nation’s historical tradition.” Bruen, 142 S. Ct. at 2126. Specifically, ‘the government must affirmatively prove that [a] firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” id. at 2127, by pointing to a “long, unbroken line of common-law precedent,” id. at 2136, or practice “when the Bill of Rights was adopted in 1791,” id. at 2137, endorsing the regulation.
As to Step 1, Judge Reeves ruled “the plain text of the Second Amendment covers Mr. Bullock’s possession of firearms” despite his felony convictions. Bullock at *21. Citing among other things the recent en banc ruling in Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023), the judge found felons to be among “the people” protected by the Second Amendment.
And fun fact: the government had essentially conceded this years ago. “In 2011, for example, the Department [of Justice] told Judges on the U.S. Court of Appeals for the Fourth Circuit that ‘[a]s for convicted criminals, Colonial societies do not appear to have categorically prohibited their ownership of firearms.’ Brief of Appellee, United States v. Staten, No. 10-5318, 2011 WL 1542053, at *25 (4th Cir. Apr. 25, 2011). Similarly, in a case pending before the U.S. Court of Appeals for the First Circuit, the government told the court that ’18 U.S.C. § 922(g)(1) is firmly rooted in the twentieth century and likely bears little resemblance to laws in effect at the time the Second Amendment was ratified.’ Brief of Appellee, United States v. Pettengill, No. 10-2024, 2011 WL 1977759, at **27-28 (1st Cir. May 13, 2011).” Bullock at *28.
Having found felons like Mr. Bullock to be covered by the Second Amendment, Judge Reeves moved to Step 2 of the Bruen analysis, where the government must “affirmatively prove” the law at issue (or one like it) existed in 1791. The government didn’t even try to do this, filing a “three-and-a-half-page response” to Mr. Bullock’s motion to dismiss the indictment. Bullock at *29. “Missing from this brief,” the judge said, “is any example of how American history supports § 922(g)(1), much less the number of examples Bruen requires to constitute a well-established tradition. The government has, therefore, not met its burden.” Id. at *30. “Mr. Bullock has a criminal history, yes. Armed with that knowledge, though, the government put forth no effort to ground in history the present charges it brought again him. That is what Bruen requires.” Id. at *31.
“Of course,” the judge noted, “the government may seek appellate review of this ruling,” Id. at *31 n.33.
Speaking of that, today the Supreme Court granted certiorari in United States v. Rahimi, No. 22-915, 2023 WL 4278450 (U.S. June 30, 2023), the case in which the Fifth Circuit cited Bruen as reason to strike down § 922(g)(8), which bars gun possession by anyone subject to a domestic-violence restraining order.
So stay tuned, and let fly those motions to dismiss § 922(g)(1) charges!