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LOS ANGELES (CN) — An en banc Ninth Circuit panel heard a review Wednesday of a ruling that granted Second Amendment protections to nonviolent felons by striking down a federal ban on felons possessing firearms after their release.
The 11 judges on the panel appeared to struggle with how to apply two recent U.S. Supreme Court decisions — New York State Rifle & Pistol Association, Inc. v. Bruen, in 2020, in which the court struck down a requirement to show “proper cause” when applying for a permit to carry a concealed gun in public; and United States v. Rahimi, a ruling published in June in which the high court upheld the federal government’s ability to temporarily restrict people with domestic violence restraining orders against them from possessing firearms.
The Rahimi decision came down less than two months after a three-judge Ninth Circuit panel found that a blanket prohibition on felons owning guns was unconstitutional. That case arose from a challenge by Steven Duarte, a felon who has been convicted of various nonviolent crimes including vandalism, being a felon in possession of a firearm, drug possession and evading a police officer. The Ninth Circuit’s ruling in favor of Duarte was based largely on Bruen , which requires the government to show that a historic tradition exists for any gun regulation it wishes to implement.
On Wednesday, Sonam Henderson, the U.S. public defender representing Duarte, argued Bruen means “there’s one test and one test only for firearm regulations. It needs to meet the historic test.” Any ban on a category of people possessing arms, Henderson said, “would have to fit within the tradition the founders would’ve recognized.” Duarte’s lawyer had argued, and the three-judge panel had agreed, that Duarte’s crimes would have been considered misdemeanors in the 18th century.
But the judges on the en banc review panel peppered Henderson with questions about just which kind of criminals would be allowed to keep their guns.
“Could Al Capone have a gun?” asked U.S. Circuit Judge John Owens, a Barack Obama appointee. The question was met with silence as Henderson struggled to come up with an answer. Owens didn’t give him much time, adding, “That should be a quick yes or no, right?”
“He was only convicted of tax evasion,” Henderson finally said, “Then yes. But presumably they’d try to get him for something more.”
Owens pressed on. “What about a neo-Nazi gang member who’s been convicted of trafficking methamphetamine and young women?”
“I think with that, it would depend on the volume,” said Henderson, adding the government would have to show some level of violence in the offender’s conduct.
“Is that the distinction?” asked U.S. Circuit Judge Kim Wardlaw, a Bill Clinton appointee. “Violence or nonviolence? I don’t think anyone could walk away from Duarte’s history and say he’s nonviolent. How are you defining this?”
Henderson acknowledged it was an imperfect definition, but argued that it was “more historically tethered” than the “serious crime” definition the government was pushing. He added that Rahimi said that it was OK to disarm people who were “a threat to the physical safety of others.”
William Glaser, a trial attorney with the U.S. Department of Justice argued there are two through lines the it comes to criminals in the history of the U.S.: that “those who have been convicted of serious crimes can be disarmed,” and that “legislators may make judgments that certain categories of people are too dangerous to be armed.” He argued that felonies that were punishable by more than one year in prison met the standard of “serious crime,” and have been treated as a serious crime throughout history.
“The Supreme Court has recognized, legislatures for the last century have recognized that felons as a category present a heightened danger to society when armed,” Glaser said.
“Why couldn’t the Legislature say, young men, age 18 to 25, they do dumb things — so why couldn’t they just say those people are dangerous and can’t be armed?” asked U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee.
“We don’t think this court should give complete deference to legislatures,” Glaser replied. “The question is whether the Legislature has acted within its discretion to look at category and define as dangerous.”
The panel took the arguments under submission.
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