Spring 2023 Update on the Constitutionality of Gun Laws

Last fall, I wrote a post about the litigation over the constitutionality of various firearms restrictions in the wake of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). Recall that in Bruen, the Supreme Court announced a new interpretive approach for Second Amendment claims: courts must determine whether the challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Litigants have subsequently come forward with numerous challenges to gun laws, and courts have struggled with how to apply the new test. As detailed below, the Fifth Circuit recently issued a major federal appellate case decided under the Bruen framework, and we are awaiting another from the Third Circuit on an even more important issue.

Where we were a few months ago. As my prior post explains, federal district court judges have struck down multiple federal gun laws, including 18 U.S.C. § 922(g)(8) (people subject to DVPOs cannot possess guns), 18 U.S.C. § 922(k) (unlawful to possess guns with obliterated serial numbers), and 18 U.S.C. § 922(n) (no guns for people under felony indictment). Other courts have come out other ways, and there is no consensus on these points. Meanwhile, other judges have struck down certain state laws, including a recently-enacted and far-reaching New York law that sought to restrict concealed carry in a range of purportedly sensitive locations. If anything, the controversy over the scope of Second Amendment rights has intensified since then.

Fifth Circuit strikes down 18 U.S.C. § 922(g)(8), the prohibition on gun possession by individuals subject to a DVPO. One major development comes from the Fifth Circuit. In United States v. Rahimi, __ F. 4th __, 2023 WL 2317796 (5th Cir. Mar. 2, 2023), the court struck down 18 U.S.C. § 922(g)(8), which prohibits a person from possessing a gun if the person is subject to a court order that “restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person.” The opinion supersedes a previous, similar opinion from February that was published at 59 F.4th 163.

The case began when police in Arlington, Texas, suspected that Zackey Rahimi was involved in a series of non-injury shootings. They obtained a warrant to search his house and found a gun. Rahimi was subject to a DVPO as a result of an alleged assault on an ex-girlfriend, so he was charged with violating 18 U.S.C. § 922(g)(8). He pled guilty, preserving a constitutional challenge to the statute, and appealed.

The Fifth Circuit applied Bruen’s historical approach, looking for evidence of a historical tradition of similar firearms restrictions. It found none. The government directed the court to “laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves, and Native Americans,” but the court found that laws targeting people suspected of disloyalty or of insufficient social status were not analogous. The government next pointed to laws in several states that disarmed people convicted of going armed to the terror of the public, but the court founds that such a smattering of laws did not represent a “tradition of firearm regulation,” and besides, they generally required a criminal conviction before disarmament would be required. Finally, the government highlighted “surety” laws, where a person could show reason to believe that another person planned violence against him or her and then require the person to post a surety against doing so or else lose his or her right to carry weapons. The court noted that surety laws addressed individualized showings of danger made in a civil proceeding, just as DVPOs do. Still, it found that the similarity was not close enough because the surety laws did not actually deprive a person of the right to carry weapons, they merely required that he or she post a surety before doing so. Thus, although 18 U.S.C. § 922(g)(8) “embodies salutary policy goals meant to protect vulnerable people in our society,” the court concluded that it violates the Second Amendment and the court vacated Rahimi’s conviction. A concurring judge wrote separately to emphasize that the Second Amendment is not a second class constitutional right, and to argue that prosecuting domestic abusers in criminal court is a better approach than using DVPOs to address abuse.

For now, Rahimi is the law in the Fifth Circuit, which encompasses Louisiana, Mississippi, and Texas. It might be reviewed en banc or further appealed to the Supreme Court. Other circuits might follow its lead, or not. See, e.g., United States v. Kays, __ F. Supp. 3d __, 2022 WL 3718519 (W.D. Okla. Aug. 29, 2022) (post-Bruen decision upholding 18 U.S.C. s. 922(g)(8) on the basis that disqualifying DVPO subjects from gun possession is analogous to disqualifying felons, which the historical record supports). Time will tell, so stay tuned.

En banc Third Circuit considering ban on felons possessing firearms. Rahimi is a significant case but the Third Circuit is considering what could be an absolute blockbuster. In Range v. Attorney General, 53 F.4th 262 (3d Cir. 2022), a panel of that court upheld 18 U.S.C. § 922(g)(1), the federal prohibition on convicted felons possessing firearms, against a Second Amendment challenge brought by Bryan Range. Range pled guilty in 1995 to a felony-equivalent welfare fraud offense after illegally obtaining $2,458 in food stamps. (The crime was classified by Pennsylvania state law as a misdemeanor, but the potential sentence was long enough to make it a functional felony for purposes of federal law.)

Range has not been charged with a violation of the federal felon-in-possession law. Rather, he is suing proactively, seeking a declaration that the law is unconstitutional, at least as applied to him. The panel disagreed for two reasons. First, it found that people with “criminal records [that] evince disrespect for the law are outside the community of law-abiding citizens entitled to keep and bear arms,” so Range is not even entitled to raise a Second Amendment claim. Second, even if he could go forward, the court found an ample “tradition of firearm regulation” directed at those convicted of crimes. Range argued that many of the historical regulations addressed only those convicted of violent crimes, but the court disagreed, citing evidence that even nonviolent offenders were regularly disarmed under early American law.

The panel decision was unanimous, but a majority of the judges of the Third Circuit nonetheless voted to rehear the case en banc. The oral argument took place on February 15. The audio is here, and some thoughts about the case by Andrew Willinger at the Duke Center for Firearms Law are here. If the en banc court adopts Range’s argument, the floodgates will truly open to challenges to state and federal felon-in-possession laws.

Other news. More controversies are brewing. In United States v. Harrison, __ F.Supp.3d __, 2023 WL 1771138 (W.D. Okla. Feb. 2, 2023), a district court found unconstitutional as applied the federal prohibition on gun possession by a person “who is an unlawful user of or addicted to any controlled substance,” 18 U.S.C. § 922(g)(3). The court rejected the government’s reliance on founding-era laws prohibiting persons who were intoxicated from possessing firearms (because they worked only temporary disqualification) and on felon-in-possession laws (because they required a criminal conviction to have effect). But see United States v. Black, __ F.Supp.3d __, 2023 WL 122920 (W.D. La. Jan. 6, 2023) (applying Bruen and upholding 18 U.S.C. § 922(g)(3)).

Implications for North Carolina. We still don’t have any North Carolina appellate cases applying Bruen, but the above controversies have obvious implications for North Carolina. Our law prohibits gun possession by felons, G.S. 14-415.1, requires individuals subject to DVPOs to surrender their guns, G.S. 50B-3.1, and disqualifies drug users from obtaining concealed carry permits, G.S. 14-415.12(b)(5). Additional questions remain regarding whether the interpretive approach adopted in Bruen has any relevance to the scope of the right to bear arms protected by Art. I, §30 of the North Carolina Constitution. I’ll blog about theses issues as they percolate through the courts.