by Dick Hall-Sizemore
Virginia law
prohibits a convicted felon from possessing or transporting a firearm. Is that unconstitutional under the provisions of last year’s Supreme Court decision in New York State Rifle and Pistol Association v Bruen (597 U.S. ___; 142 S. Ct. 2111)?
Background
Before trying to answer that question, it is helpful to review the Supreme Court’s opinion in Bruen. New York law required anyone wanting to carry a concealed handgun outside the home to show “proper cause” for the license. New York courts had interpreted that phrase to require applicants to show more than a general desire to protect themselves or their property. The Supreme Court struck down that law as a violation of a person’s right under the Second Amendment to carry a firearm for self-defense.
Writing for the majority, Justice Clarence Thomas set a new standard for laws regulating the possession of firearms. He stated that, to pass muster, such a law must be “consistent with the Second Amendment’s text and historical understanding.” Was there a law or ordinance like the modern one in place at the time of the adoption of the Second Amendment? Thomas conceded that “regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868.” For such situations, courts could use prior laws or restrictions analogous to the current situation. He went into some detail to explain what could constitute an appropriate analogy. He concluded:
On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
A detailed summary and analysis of the opinion can be found here.
As noted in a recent Wall Street Journal article, the Bruen decision and opinion has resulted in “chaos” in the lower courts. Judges are not sure what is acceptable under Thomas’s standard and what is not. One district judge floated the idea of appointing an historian as a consulting expert to assist him. Suddenly, historians are in demand by states, such as California, and are being paid up to $500 per hour to scavenge databases and newspaper archives for historic gun laws and render their opinion on them. In addition to attorneys on both sides presenting dueling precedents, there are now historians on both sides “clash[ing] in court papers, accusing each other of mischaracterizing past arms regulations.”
Applications
Back to the original question: Is it unconstitutional to prohibit a felon from possessing a firearm? The answer is: maybe. It depends. In June of this year, the Eighth Circuit Court of Appeals held that the federal statute prohibiting a felon from possessing a firearm did not violate the Second Amendment. In response to the defendant’s assertion that his prior conviction had been for a non-violent felony, which did not make him a “dangerous person” and thus entitled to possess a firearm, the Court, after citing numerous historical statutes and ordinances, as well as the language in the concurring opinions of Bruen, stated, “There is no need for felony-by-felony litigation regarding the constitutionality of [the statute].” All felons can be barred from possessing a firearm.
In contrast, at about the same time, on a 11-4 vote, the Third Circuit Court of Appeals ruled that a person convicted of a non-violent felony twenty years in the past could not be prohibited from possessing a firearm. Citing frequently the Bruen opinion, Judge Thomas Hardiman, the author of the majority opinion, asserted, “In sum, we reject the government’s contention that only ‘law-abiding, responsible citizens’ are counted among ‘the people’ protected by the Second Amendment.”
Virginia also has a statute that prohibits anyone convicted twice in a 36-month period of marijuana misdemeanors from possessing a firearm. Although it is no longer a misdemeanor in Virginia to possess a small amount of marijuana, it may be illegal for individuals convicted twice in a 36-month period under the former statute to possess a handgun. Furthermore, federal law makes it illegal for anyone convicted of possession of a controlled substance to possess a firearm. However, a federal district judge in Oklahoma has ruled that the federal law is unconstitutional under the provisions of the Bruen decision.
In another area, federal law has forbidden anyone subject to a restraining order from possessing a firearm (Virginia has a similar law.) This federal law has been overruled in accordance with Bruen. As related by Amy Howe on SCOTUSblog, a Texas man assaulted his girlfriend and threatened to kill her if she told anyone about the assault. A few months later, a Texas court entered a restraining order against him. The order prohibited him “from possessing a gun and warned him that doing so while the order was in effect could be a federal felony.” Sometime later, the guy was a suspect in a series of shootings and his house was searched pursuant to a warrant. In the course of the search officers found “a pistol, a rifle, and ammunition – along with a copy of the restraining order.” He was convicted in federal court of violating the restraining order and sentenced to just over six years in prison.
He appealed and the Fifth Circuit Court of Appeals upheld the conviction. However, when the Bruen decision was announced, the circuit court issued a new opinion throwing out the conviction. The court concluded that the ban on individuals subject to restraining orders from possessing firearms was not “consistent with the country’s historical tradition of regulating firearms.”
This case (United States v Rahimi) is headed to the Supreme Court in its next term.
There are other restrictions on possession of firearms that are in jeopardy due to the Bruen decision. A district court in Delaware recently declared that, under the terms of Bruen, the Second Amendment protects the possession of untraceable firearms (no serial numbers) as well as “implies a corresponding right to manufacture firearms.” The Delaware law being challenged included a prohibition of using a 3D printer to “manufacture” a firearm. Comparable Virginia laws are one making it a misdemeanor to “remove, deface, alter, change, destroy or obliterate in any manner or way” the serial number of a firearm and one which makes it a Class 5 felony to “manufacture, import, sell, transfer or possess any plastic firearm.”
In the coming years, many of the Commonwealth’s statutes regulating the possession of firearms, some supported by both conservatives and liberals, may fail the Bruen constitutional tests.
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