Tenth Circuit Sidesteps Bruen with Nonviolent Felon Ruling

As NRA-ILA pointed out last week, the U.S. Supreme Court’s landmark ruling in New York State Rifle & Pistol Association v. Bruen (2022) has prompted a long-overdue reappraisal of the federal law as it pertains to who can be barred from possessing firearms consistent with the Second Amendment. Unfortunately, it hasn’t been all wins for liberty. Some federal courts have continued to uphold firearm prohibitions that have no relationship to America’s historical tradition.

On February 11, the U.S. Court of Appeals for the Tenth Circuit rejected a challenge to the 18 U.S.C. 922(g)(1) federal lifetime prohibition on nonviolent felons possessing firearms.

The case involved Melynda Vincent, a Utah woman who was convicted of federal “bank fraud” in 2008. Noting the particulars, Courthouse News explained, “Vincent wrote a fraudulent check for $498.12 at a grocery store in 2008 when she was homeless and fighting off a drug addiction. She … pleaded guilty and was sentenced to probation without imprisonment.”

In the almost two decades since her conviction, Vincent has turned her life around. An earlier court document noted, “Since the time of her offense Vincent graduated from a drug treatment program, earned an undergraduate degree and two graduate degrees.” Moreover, Courthouse News explained, “Today she is a social worker who runs her own practice and works with the Utah Harm Reduction Coalition.” Any proponents of criminal justice reform more concerned with reintegration than doctrinaire anti-gun politics should find the Vincent’s case compelling.

In ruling against Vincent, the Tenth Circuit cited the circuit’s own precedent from the case U.S. v. McCane (2009) which upheld the broad 18 USC 922(g)(1) prohibition. Of course, that case was decided before Bruen explicitly commanded that the courts look to the text, history, and tradition to determine if a given regulation “is consistent with the Nation’s historical tradition of firearm regulation.”

The Tenth Circuit declared that since the U.S. Supreme Court’s decisions after McCane did not “indisputably and pellucidly” abrogate their earlier ruling there was no need to rigorously re-examine circuit precedent or engage in the type of analysis Bruen commanded.

While this result was a reminder that some judges continue to ignore the Supreme Court’s repeated admonition that the Second Amendment is not a second class right, there is reason to be optimistic that there could be a coming shift on this issue.

In September, NRA filed an amicus brief in the Ninth Circuit case U.S. v. Duarte, a challenge to the federal lifetime prohibition on firearms possession by nonviolent felons. The brief explained,

America’s historical tradition of firearm regulation allows for the disarmament of dangerous persons—disaffected persons posing a threat to the government and persons with a proven proclivity for violence. But there is no historical tradition of disarming peaceable citizens. Rather,  peaceable citizens—including nonviolent felons and other unvirtuous  persons—were expressly permitted and often required to keep and bear  arms.

Section 922(g)(1) therefore violates the Second Amendment as applied to nonviolent offenders.

Moreover, there are indications that some very prominent jurists are sympathetic to this understanding.

U.S. Supreme Court Justice Neil Gorsuch has repeatedly expressed his dissatisfaction with the widening scope of conduct now classified as felonious and how this deviates from the historical tradition.

The 2021 Supreme Court case Lange v. California involved the question of whether, under the Fourth Amendment, a law enforcement officer may always pursue an individual suspected of having committed a misdemeanor into a home without obtaining a warrant. The Court held that such a categorical exemption to the warrant requirement was impermissible.

During oral arguments there was much discussion on how to treat misdemeanor versus felony conduct in such circumstances. Understanding the creeping expansion of the definition of felony, Gorsuch defended broad Fourth Amendment protections, noting,

we live in a world in which everything has been criminalized. And some professors have even opined that there’s not an American alive who hasn’t committed a felony in some – under some state law.

Gorsuch went on to explain,

what qualified as a felony at common law was -- were very few crimes and they were all punished by the death penalty usually, and today pretty much again anything or everything can be called a felony.

In 2019 U.S. Supreme Court Justice Amy Coney Barrett, then a judge on U.S. Court of Appeals for the Seventh Circuit, suggested that firearm possession prohibitions should be tied to dangerousness while dissenting in the case Kanter v. Barr. The case involved the Second Amendment rights of an individual with a felony mail fraud conviction stemming from the almost comically nonviolent crime of selling Medicare non-compliant therapeutic shoe inserts.

Taking issue with the categorical ban on felons possessing firearms, Barrett explained,

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.

Despite this latest setback in the Tenth Circuit, gun owners should be encouraged by much of the federal judiciary’s renewed interest in protecting Second Amendment rights post-Bruen.