The Ninth Circuit, in U.S. v. Duarte, has ruled that the Gun Control Act’s ban on firearm possession by felons (18 U.S.C. § 922(g)(1)) is unconstitutional when applied to non-violent offenses without historical precedent. The decision, authored by Senior Judge Carlos Bea and joined by Judge Lawrence VanDyke, was met with a dissent from Judge Milan D. Smith, Jr. who hopes for an en banc rehearing. This decision will likely impact the Supreme Court’s consideration of other cases involving gun possession restrictions.
Duarte’s analysis of historical regulations related to disarming criminals revealed that proposals at state ratifying conventions and laws disarming specific groups did not support the broad felon ban. The court also found that historical analogues such as laws disarming British Loyalists, Catholics, Indians, and slaves did not justify the blanket ban on non-violent felons possessing firearms. Additionally, the government’s argument that felons had no right to possess firearms due to historical punishments was refuted by the evolving definition of “felony” over time.
Ultimately, the Duarte decision highlights the need for a thorough examination of historical regulations and analogues when assessing Second Amendment challenges to gun possession restrictions. The Duarte court suggests that laws from the 18th and 19th centuries punishing certain felonies with severe penalties are similar to the longstanding felon firearm bans mentioned in Heller. Some modern crimes, such as drug trafficking, can be considered relevantly similar to Founding-era crimes like burglary or robbery when it comes to the potential for immediate violence. However, there is no historical basis for permanently disarming someone solely for being convicted of any crime punishable by over a year in prison. Steven Duarte’s case highlights the presumption that American citizens have the individual right to possess firearms for self-defense, which the government failed to rebut in his case. As a result, Section § 922(g)(1) is deemed unconstitutional as applied to him. Duarte’s case, influenced by Justice Amy Coney Barrett’s dissent in Kanter v. Barr and the Third Circuit’s decision in Range, sets a new standard for analyzing Second Amendment rights. The upcoming Rahimi case may provide further clarity on whether all individuals convicted of crimes punishable by over a year in prison lose their Second Amendment rights permanently.
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