LOS ANGELES (CN) — A Ninth Circuit panel Thursday ruled that a blanket prohibition on convicted felons possessing firearms violates their Second Amendment rights, at least when it comes to nonviolent offenders who served out their sentence.
In a split decision, the three-judge panel threw out firearm possession conviction of a Los Angeles member of a street gang who had five prior felony convictions and was later sentenced to 51 months in federal prison for being a "felon-in-possession."
Writing for the majority, U.S. Circuit Judge Carlos Bea, a George W. Bush appointee, said the landmark 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen requires that the government shows that there is a historical tradition that supports the categorical prohibition on defendants such as Steve Duarte possessing a firearm.
This, according to the judge, the government failed to do because there was no analogous law at the time of the Founding Fathers that someone like Duarte would have been deprived of their right to bear arms. In fact, the judge said, his offenses would have been considered misdemeanors rather than felonies or not even have existed at all in the 18th and 19th centuries.
"We do not base our decision on the notion that felons should not be prohibited from possessing firearms," Bea wrote, noting that as a matter of policy the blanket prohibition may make a great deal of sense. But, citing preceding decisions, the judge said "the very enumeration of the Second Amendment right in our Constitution takes out of our hands the power to decide for which Americans that right is really worth insisting upon."
U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, joined Bea in the majority opinion.
U.S. District Judge Milan Smith Jr., another George W. Bush appointee, dissented and said that Supreme Court's Bruen decision didn't invalidate existing Ninth Circuit law on the issue but in fact reiterated "that the Second Amendment right belongs only to law-abiding citizens."
Thursday's ruling is a shift in Ninth Circuit law, and it differs from the view adopted by many circuits, said Eugene Volokh, a law professor at the University of California in Los Angeles. However, it’s similar to what the Philadelphia-based Third Circuit decided last year in Range v. Attorney General, according to Volokh.
The majority opinion left open the possibility that felons convicted of violent crimes could still be prohibited from owning firearms after they served their sentence.
In the case of felonies that in the 18th and 19th centuries were traditionally punished with with death, forfeiture of the offender's estate or a life sentence, Bea said, we might "venture to assume it settled that these offenses were of a kind the Founding generation thought serious enough to warrant the permanent loss of the offender’s Second Amendment right."
The U.S. attorney's office in Los Angeles, which defended Duarte's conviction before the Ninth Circuit panel, declined to comment on the ruling.
However, according to Volokh. federal prosecutors are likely to ask the Ninth Circuit for an en banc review of the decision, where all the judges of the Ninth Circuit will hear the case.
"That review will probably be influenced by the Supreme Court's Rahimi case, which deals with whether people subject to domestic violence restraining orders lose their Second Amendment rights, and which is due to come down from the court by June 30," Volokh said. "The question in Rahimi and the question in this case aren't identical, but they share considerable similarities."
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