A federal law makes it a crime for lots of people to have guns. It is, Justice Samuel A. Alito Jr. wrote in 2019, “no minor provision.”
“It probably does more to combat gun violence than any other federal law,” he wrote. “It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence and illegal aliens.”
Since then, however, the Supreme Court has interpreted the Second Amendment in a way that puts major parts of the law at risk and has left lower courts in, as one challenger put it, a “state of disarray.” Given the conflicts in the federal appeals courts and the importance of the law, the justices will soon have to intervene.
All of this is a consequence of a 2022 Supreme Court decision, New York State Rifle & Pistol Association v. Bruen, which created a new test to decide whether gun control laws are constitutional.
The test requires judges to strike down gun laws unless they can locate a historical analogue. Last month, two federal appeals courts issued starkly different decisions on the part of the law that permanently bars people convicted of felonies from having guns.
About 8,000 people were convicted under the law in the year ending in September 2023, receiving average sentences of more than five years. More than 88 percent of those convictions were under the provision barring felons from possessing guns.
Even before last month’s decisions, lower courts were sharply split on the question of whether that part of the law can survive the test announced in Bruen. “Perhaps no single Second Amendment issue has divided the lower courts more,” Judge Lawrence J.C. VanDyke of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, wrote in a dissent in July.
Last year, the Supreme Court upheld a different and, in the scheme of things, relatively minor provision of the law in United States v. Rahimi. The court ruled that the government can temporarily disarm people subject to restraining orders for domestic violence.
The Biden administration promptly asked the Supreme Court to hear follow-on cases on the far more consequential Second Amendment question of whether the provision concerning people convicted of felonies is constitutional. Lower courts were split on the issue, the administration’s brief said, “undermining public safety.”
Courts struck down the provision, the brief added, “even as applied to exceptionally dangerous felons, including murderers, carjackers and drug traffickers.”
But the Supreme Court refused to hear the appeals, instead returning the cases to lower courts for reconsideration in light of the Rahimi decision.
Those courts are now completing that task. On Dec. 23, the full Third Circuit, in Philadelphia, ruled that Rahimi did not change the court’s conclusion that Bryan Range, who was convicted of food stamp fraud nearly 30 years ago, could not be permanently disarmed under the law.
“The government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms,” Judge Thomas M. Hardiman wrote for the majority, meaning that the law “cannot constitutionally strip him of his Second Amendment rights.”
Five days earlier, a unanimous three-judge panel of the Fourth Circuit, in Richmond, Va., came to a different conclusion. “The historical record contains ample support for the categorical disarmament of people ‘who have demonstrated disrespect for legal norms of society,’” Judge Toby J. Heytens wrote for the panel. He cited a decision in August from a three-judge panel of the Eighth Circuit, in St. Louis, which reached the same conclusion.
When the full Eighth Circuit declined to rehear the case in November, Judge David R. Stras dissented.
“I have no special affection for felons, either,” he wrote, “but the Second Amendment does not care. It says what it says, and so do the Supreme Court decisions interpreting it.”
It was a grave legal error, he added, to assume that “a group numbering in the tens of millions and ranging from murderers to ketchup-bottle tamperers” could all be barred from owning guns.
On Friday, the justices are scheduled to consider the case of Andre Dubois at their private conference. He was convicted under the felon-in-possession provision and urged the court to hear his case to address what he said was a “state of disarray” in the lower courts.
“Someone who attempted to evade their taxes 20 years ago and has not committed a crime since should retain their Second Amendment rights,” Mr. Dubois’s brief said. “Someone who committed felony shoplifting at 18 and is now a 40-year old mother who has never been in trouble since should retain their Second Amendment rights.”
The government urged the justices to send the case back to the lower courts for reconsideration in light of Rahimi. Mr. Dubois called such review “an exercise in futility, as the government is well aware.”
“Post-Rahimi, the split among the circuits has only hardened,” he added. “Judges within circuits vehemently disagree.”
He urged the justices to grant review “to resolve the split and restore national harmony.”
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