Felon in possession statute unconstitutional as applied to non-violent felon
Divided panel holds prior contrary precedent abrogated by Bruen
United States v. Duarte, 22-50048, decided May 9, 2024.
Panel: Bea (authored), VanDyke, and M. Smith (dissenting).
Holding: 18 U.S.C. § 922(g)(1), barring felons from possessing firearms, is unconstitutional as applied to a person convicted of non-violent prior offenses following the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
Steven Duarte has five prior non-violent state felony convictions. In March 2020, he was was witnessed tossing a handgun out the rear passenger window of a car during a traffic stop. He was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He pleaded not guilty and was convicted at trial.
In 2022, the Supreme Court decided New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), which announced a new framework for analyzing gun laws. Bruen held that that when a person’s conduct is covered by the plain text of the Second Amendment, the government must justify any regulation of that conduct by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.
The panel first holds that Bruen abrogated prior circuit precedent in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010). Vongxay had held that § 922(g)(1) “does not violate the Second Amendment as it applies to . . . convicted felons.” The panel finds the two-step methodology employed in Vongxay “clearly irreconcilable” with Bruen’s mode of analysis and holds that it no longer controls.
Having held Vongxay abrogated, the panel looks to whether Mr. Duarte’s conduct is covered by the plain text of the Second Amendment and finds that it is. The panel dismisses the government’s argument that as a felon, Mr. Duarte is not among “the people” referred to in the text of the Second Amendment and holds that Mr. Duarte is one of “the people” “because he is an American citizen.”
The panel then asks whether permanent bans on possession of firearms by non-violent felons are consistent with the Nation’s historical tradition of firearm regulation. The panel proceeds through various historical analogues the government offers—proposals at state constitutional conventions, bans on firearm possession by Indians, slaves, Catholics, and Loyalists—and finds them unpersuasive.
The panel concludes that while “[a]s a matter of policy, § 922(g)(1) may make a great deal of sense,” it violates Mr. Duarte’s Second Amendment rights and is unconstitutional as applied to him.
Dissent: Judge M. Smith would hold that Bruen did not abrogate Vongxay. He points to dicta in Heller noting that nothing in that opinion “can be read legitimately to cast doubt on the constitutionality of § 922(g)(1)” and would hold that Bruen doesn’t satisfy the high bar set by Miller v. Gammie for finding that circuit precedent has been abrogated.
Smith encourages the Ninth Circuit to take this case en banc, which seems highly likely to occur. Stay tuned.
Procedural note: Duarte raised his challenge to the constitutionality of the felon-in-possession statute as applied to him for the first time on appeal. The panel held that Duarte had “good cause” for failing to raise the challenge below—namely, that Bruen hadn’t been decided yet and prior circuit precedent foreclosed his constitutional challenge. The panel held he was therefore entitled to de novo review rather than plain error review. This should be helpful to anyone with a appeal still pending of a pre-Bruen § 922(g)(1) conviction.
The opinion is here.