Should Felons Have the Right to Challenge Their Loss of Gun Rights, on a Case-by-Case Basis?
No, said an Eighth Circuit panel in U.S. v. Jackson earlier this year; yesterday, the court refused to rehear the case en banc, so the answer is still no in the Eighth Circuit. Judge David Stras, joined by Judges Ralph Erickson, Steven Grasz, and Jonathan Kobes (a total of four of the eleven judges on the court), dissented from the denial of rehearing:
I have no special affection for felons either, but the Second Amendment does not care. It says what it says, and so do the Supreme Court decisions interpreting it. See generally U.S. v. Rahimi (2024); N.Y. State Rifle & Pistol Ass’n v. Bruen (2022). And what Jackson [II] [the panel decision] says about as-applied challenges conflicts with both.
Start with Rahimi. It was a facial challenge, but the Supreme Court dealt with it by examining whether the statute was “constitutional in some of its applications,” including in “Rahimi’s own case.” It reviewed the historical analogues, surety and going-armed laws, and held that an individual like Rahimi—someone who has been “found by a court to pose a credible threat to the physical safety of another[—]may be temporarily disarmed consistent with the Second Amendment.”
If the Court meant to cut off all as-applied challenges to disarmament laws, as Jackson II concludes, it would have been odd to send that message by deciding Rahimi based on how his as-applied challenge would have gone. See id. (stating that “[s]ection 922(g)(8)’s restriction was temporary as applied to Rahimi“); id. (noting that § 922(g)(8) applies “only once a court has found that the defendant represents a credible threat to the physical safety of another”). It would have just announced the law’s across-the-board constitutionality and moved on, like Jackson II does.
In fact, Justice Gorsuch wrote separately to make that point clear. As he put it, “Rahimi’s facial challenge to § 922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in ‘particular circumstances.'” Not a single Justice has suggested otherwise. Not in Heller. Not in Bruen. And certainly not in Rahimi.
Jackson II packs a double whammy. It deprives tens of millions of Americans of their right “to keep and bear Arms” for the rest of their lives, at least while they are in this circuit. And it does so without a finding of “a credible threat to the physical safety” of others, Rahimi, or a way to prove that a dispossessed felon no longer poses a danger. There is no Founding-era analogue for such a sweeping and undiscriminating rule…. “[O]f the states that protected the right to keep and bear arms, none disarmed non-dangerous felons ….” …
It gets worse. Jackson II turns constitutional law upside down, insulating felon-dispossession laws from Second Amendment scrutiny of any kind. “Facial challenges are disfavored.” But after Jackson II, they are the only kind a felon may bring. See Jackson II (holding that § 922(g)(1)’s constitutionality does not vary “felony-by-felony” or felon by felon). And now, it is impossible to prevail in one.
Clinging to a recycled line from D.C. v. Heller (2008), is no excuse. Heller said only that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” characterizing them as “presumptively lawful regulatory measures.” For one thing, this line is dictum because it tells us what Heller did not do rather than what it did. For another, it is just a presumption. As I have explained before, “a measure can be presumptively constitutional and still have constitutionally problematic applications. As-applied challenges exist for exactly this reason.” Making the leap from presumptively constitutional to always constitutional, like Jackson II does, is too much for that overused line to bear, no matter how you read it.
Other courts have not made the same mistake. Some have already entertained as-applied challenges. See, e.g., U.S. v. Diaz (5th Cir. 2024) (concluding that Diaz’s as-applied challenge to § 922(g)(1) failed but “not foreclos[ing]” others “by defendants with different predicate convictions”); U.S. v. Moore (3d Cir. 2024) (analyzing § 922(g)(1) as applied to a defendant charged with possessing a firearm while on supervised release). Another has recognized their availability. See U.S. v. Williams (6th Cir. 2024) (holding that Bruen and Rahimi require courts to consider as-applied challenges to the felon-in-possession statute); see also U.S. v. Gay (7th Cir. 2024) (“assum[ing] for the sake of argument that there is some room for as-applied challenges”); U.S. v. Duarte (9th Cir. 2024) (VanDyke, J., dissenting from grant of reh’g en banc) (explaining that the government must show that the defendant “likely would threaten or ha[s] threatened another with a weapon” (qu
Article from Latest
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
