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Ninth Circuit Reverses Course in Second Amendment Case
En Banc Court Says Law Criminalizing Possession of Firearms by Felons Is Constitutional as Applied to Non-Violent Criminals
By Kimber Cooley, associate editor
An en banc panel of the Ninth U.S. Circuit Court of Appeals held Friday that the application of a federal law criminalizing the possession of a firearm by a felon to a man with no violent criminal history does not run afoul of the Constitution under the analytical framework to be applied for Second Amendment cases following U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association Inc. v. Bruen, drawing dissent.
At issue is whether 18 U.S.C. §922(g)(1)—which prohibits those who have been “convicted in any court of…a crime punishable by imprisonment for a term exceeding one year” from receiving or possessing a firearm—withstands the constitutional scrutiny demanded by the Bruen decision.
The question arose after Steven Duarte—who had suffered five prior non-violent felony convictions—was sentenced to four years and three months in prison by District Court Judge André Birotte Jr. of the Central District of California for violating the section. During the pendency of Duarte’s ensuing appeal, the Bruen case was decided.
Clarifying the standard for analyzing Second Amendment claims, the high court in Bruen said:
“When 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.”
Following the decision, Duarte argued that §922(g) was unconstitutional as applied to him as a non-violent felon, asserting that the court’s prior precedent upholding the law under similar circumstances is clearly irreconcilable with Bruen.
A divided Ninth Circuit panel agreed with the defendant and vacated his conviction.
Reversed Course
In Friday’s opinion, authored by Circuit Judge Kim McLane Wardlaw, and joined in by Chief Judge Mary H. Murguia and Circuit Judges Johnnie B. Rawlinson, John B. Owens, Holly A. Thomas, Salvador Mendoza Jr., and Roopali H. Desai, the Ninth Circuit reversed course, declaring:
“Today, we align ourselves with the Fourth, Eighth, Tenth and Eleventh Circuits and hold that § 922(g)(1) is not unconstitutional as applied to non-violent felons….”
The court noted that the parties dispute what standard of review applies, with the government arguing that the plain error rule applies because the defendant did not raise his constitutional challenge below, and Duarte arguing that the issue should be considered de novo, under Ninth Circuit precedent, due to Bruen announcing new legal principles.
Saying the court would “assume without deciding that de novo review applies,” the majority opined:
“[U]nder either the good cause/de novo review standard or the plain error standard, we must address the merits of Duarte’s constitutional claim. And, because under either standard, the outcome is the same—the district court did not err and § 922(g)(1) is constitutional as applied to non-violent felons—we need not decide which standard applies here.”
Circuit Judge Ryan D. Nelson, joined by Sandra S. Ikuta, concurred in the judgment but argued that plain error review applies and, under that standard, the conviction should be upheld without reaching the merits of the Second Amendment challenge. Circuit Judge Daniel P. Collins wrote separately to argue that historical traditions relied upon by the majority to uphold the law only accomplish that purpose if considered together.
Dissenting, Circuit Judge Lawrence VanDyke accuses the majority of making a “cavalcade of errors.”
Circuit Precedent
Wardlaw noted that pre-Bruen precedent upheld §922(g)(1) as constitutional, pointing to the court’s 2010 decision in U.S. v. Vongxay. Saying that language in Bruen and its progeny suggests that the court intended to “limit[] the scope of its opinion” to law-abiding citizens, Wardlaw reasoned:
“Together, these repeated and consistent ‘assurances’ make clear that felon-in-possession laws, like § 922(g)(1), are presumptively constitutional, demonstrating that our holding in Vongxay remains consistent with the Supreme Court’s articulation of Second Amendment rights. Further, these ‘assurances’ recognize a historical tradition of firearm regulation that supports the categorical application of § 922(g)(1) to felons like Duarte….Our application of Bruen’s constitutional test to Duarte’s conduct confirms this reading.”
Applying the Bruen framework, she concluded that Duarte’s conduct is covered by the plain text of the Second Amendment and turned to the question of whether §922(g)(1) is consistent with the country’s history of firearm regulation.
Wardlaw pointed to two historical factors as supporting the view that the section is constitutional—a founding era tradition of punishing serious crimes with death and estate forfeiture, and an understanding, dating back to the 1600s, that disarmament was appropriate for certain classes of people.
Either Factor
Finding that either factor supports the constitutionality of §922(g)(1), the jurist remarked:
“Certainly, if the greater punishment of death and estate forfeiture was permissible to punish felons, then the lesser restriction of permanent disarmament is also permissible.”
Duarte points out that not all felonies at the founding were actually punished by death or forfeiture. Wardlaw responded:
“[T]his argument misperceives our standard. To find Duarte’s punishment consistent with the founding generation’s understanding of the Second Amendment, history need not show that every felony was punished with death and estate forfeiture….But this does not mean that, as a matter of constitutional authority, legislatures lacked the ability to impose such punishments.”
Turning to historical disarmament laws, she noted rules dating back through the late 1800s in which “tramps”—or those who went “about from place to place begging”—were prohibited from having guns and wrote:
“Certainly not all ‘tramps’ were ‘vicious’ or ‘dangerous.’ Yet, thirteen states passed laws categorically disarming them on the belief that tramps, as a class, presented a danger to the community if armed.”
She declared that “Section 922(g)(1) fits within this tradition.”
VanDyke’s View
In a dissenting opinion nearly twice as long as the majority one, VanDyke argued:
“The majority needed to go no further than the standard of review to decide this case. Rather than ‘assum[ing] without deciding that de novo review applies,’ the majority should have applied plain error review and affirmed Duarte’s conviction on that ground.”
Applying the plain error standard, he opined:
“There was no plain error by the district court. Given the split among the circuit courts over the constitutionality of §922(g)(1) as applied to felons convicted of non-violent offenses, and our pre-Bruen precedent upholding the constitutionality of the statute, I cannot say that the district court’s error was ‘clear’ and ‘obvious.’ ”
He pointed out, under Federal Rule of Criminal Procedure 52, “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”
Noting that “the Ninth Circuit has already muddied this otherwise clear rule” to allow de novo review for good cause when there is a change of law, he agreed with the prosecution that the court should have taken “advantage of the en banc posture of this case to jettison” this exception.
Second Amendment Merits
VanDyke also took issue with the majority’s application of Bruen, commenting that the idea that all or most felonies were punished during the founding era by death “was in fact a historical fiction.” He said:
“[W]hat can the founders’ greater willingness to apply capital punishment tell us about whether they would disarm those not sentenced to death? Nothing. But those aren’t the only flaws with the majority’s historical analysis. The majority is also wrong to uncritically equate modern-day felonies with those at the founding…”
He concluded that the majority failed to provide “felony analogues” from the founding era that are “distinctly similar” to §922(g)(1) and that would have been punishable by “execution, life in prison, or permanent disarmament.” Under those circumstances, he argued that Bruen’s test for constitutionality was not met.
As to the laws allowing the disarming of certain classes of people, he explained
“[T]he majority’s proffered laws simply effectuated temporary disarmaments. And a temporary disarmament is not a relevant analogue to the lifetime bar on possession that § 922(g)(1) imposes.”
Characterizing the Second Amendment as the “red-headed stepchild of the Constitution,” he declared:
“[I]n its zeal to reach and broadly deny Duarte’s Second Amendment claim on the merits, the majority is happy to simply assume de novo review. That allows it to announce the broadest of holdings, giving legislatures effectively unconstrained authority to disarm entire swaths of our citizenry. Once again we demonstrate our court’s deep-seated prejudice against a fundamental constitutional right, and I must respectfully dissent.”
The case is U.S. v. Duarte, 22-50048.
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