The Second Amendment and The Ability of Non-Violent Felons to Possess Firearms

A large majority of people would agree that violent felons should not be allowed to have firearms.  What many people may not know is that there are many non-violent crimes that can also result in an individual having a lifetime ban on owning a firearm.  The rationale for preventing violent felons from having firearms is that the violent felon is more likely to commit a violent crime with a firearm than someone who was never convicted of a violent crime.  This is not necessarily the case with someone convicted of a non-violent crime.  For non-violent offenders, a lifetime ban looks more like punishment than an effort to prevent violent crime. Martha Stewart, for example, was convicted of insider trading, which is a felony under federal law.  This means Martha Stewart is subject to a lifetime ban on owning a firearm.  Should the law presume that Martha Stewart is too dangerous to possess a firearm?  More importantly, under the Second Amendment, can the federal government or a state government impose such a ban?  A federal appellate court recently issued a strong decision stating that the federal government may not ban non-violent felons from possessing a firearm.

In 1938, a new federal law was enacted that made it a crime for anyone convicted of certain violent crimes from possessing a firearm.  In 1961, Congress passed a law (“Felon in Possession Law”) that greatly expanded the crimes that would strip an individual, for life, from being able to possess a firearm legally under federal law.  The Felon in Possession Law made it unlawful for anyone convicted of any felony, whether violent or non-violent, to possess a firearm.  This ban was for life.

When the Felon in Possession law was enacted, the Supreme Court had not addressed the Second Amendment’s scope in any meaningful way.  In 2008, the Supreme Court decided District of Columbia v. Heller, which was the first major decision interpreting the Second Amendment.  In Heller, the Supreme Court held that the Second Amendment codified a preexisting fundamental right of individuals to possess firearms in order to defend themselves.  The Supreme Court then concluded that the District of Columbia’s ban on the ownership of handguns by private individuals was unconstitutional.  The Heller decision, however, left many issues concerning the scope of the right codified by the Second Amendment unresolved. For example, the Supreme Court did not identify the test courts should use when examining a law impacting the right protected by the Second Amendment. The Supreme Court did not need to craft such a test in Heller, because it determined that D.C.’s total ban on owning a handgun was unconstitutional under any relevant level of judicial scrutiny.

In Heller, the Supreme Court did not have to address the circumstances under which a person could lose the right to possess a firearm.  The rationale underlying the Supreme Court’s decision in Heller would cast serious doubt on the Felon in Possession Law’s lifetime ban on non-violent felons’ possessing a firearm.  The Supreme Court recognized this reality, and addressed this issue by stating that nothing in the decision “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . .”  The majority in Heller, however, did not provide a rationale for this statement Dick Heller, the plaintiff, was not a felon and the Court’s statement was not necessary to the resolution of the case.  Technically, the Court’s statement was dicta that was not binding on lower courts.  The Court’s statement was also odd, because the federal government’s broad ban on felons possessing firearms was not a “longstanding” law. When Heller was decided, the Felon in Possession Law was less than fifty years old. The Supreme Court’s failure to explain its reasoning, or what we might call a judicial punt, forced lower courts and legal commentators to develop their own justifications for the lifetime ban on felons possessing firearms.

In Second Amendment cases decided after Heller, the Supreme Court reiterated its view that the laws prohibiting felons from possessing firearms are presumptively lawful.  In none of those cases, however, did the Supreme Court provide an explanation for its statements on the presumptive constitutionality of laws prohibiting felons from possessing firearms.  Given these repeated statements by the Court supporting the constitutionality of bans on felons possessing firearms, lower courts have consistently affirmed the constitutionality of such bans.

In 2022, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen.  In Bruen, the Court held that the Second Amendment protected the right of individuals to carry a firearm for self-defense outside of their homes, and the Court struck down a New York law that left it to the discretion of government officials whether an individual could carry a firearm.  Bruen was the first Second Amendment case heard by the Supreme Court in more than a decade, and resolved an important issue left open by Heller.

While the decision in Bruen did not address the Felon in Possession law, the rationale underlying the decision significantly undermined the “presumptive” constitutionality of the Felon in Possession Law.  In the time period between Heller and Bruen, lower courts had developed a number of tests to analyze claims brought under the Second Amendment.  These tests gave courts considerable discretion to affirm or strike down laws under the Second Amendment, which oftentimes meant the courts would uphold restrictive gun control laws.  This led many commentators to ask whether the Second Amendment was a second-class right.  The Supreme Court’s decision in Bruen put those questions to rest.

In Bruen, the Supreme Court announced a test that reinvigorated the Second Amendment and made it considerably more difficult for governments to justify sweeping gun control laws. Under Bruen, the first question is whether the challenged law interferes with the ability of an individual to possess a firearm.  If the law has such an effect, the government must show that the current gun control law had some type of historical analogue at the time the Second Amendment was adopted or when the 14th Amendment was adopted.  The government does not have to show a precise match between a law existing when the Second Amendment was adopted and the law under review.  For example, a law in the late 1700s that banned an “unusual weapon” could support a modern law banning “unusual” weapons today, even though the weapons are quite different.

After Heller was decided, lower federal courts generally rejected claims that the Felon in Possession Law was unconstitutional under the Second Amendment.  Some courts focused on the statement in Heller that the ban on felons possessing firearms was presumptively lawful.  Other courts focused on language in Heller suggesting that the Second Amendment was limited to “law abiding citizens,” and concluded that having a felony conviction presumptively meant you were not a law-abiding citizen.  Other courts applied a balancing test and that brought them to the same conclusion.

After Bruen was decided, it was only a matter of time before the Felon in Possession Law was revisited. The historical analogy test adopted in Bruen was inconsistent with the rationales previously used by courts to uphold the Felon in Possession Law.  The Third Circuit federal appellate court addressed this issue in Range v. Attorney General United States of America and issued a strong decision holding that the lifetime ban on non-violent felons under the Felon in Possession law was not constitutional.

The plaintiff in Range had been convicted of making a false statement on an application for food stamps in the early 1990s. Under Pennsylvania law, Mr. Range’s crime was classified as a misdemeanor, but had a sentence of up to five years. Misdemeanors are typically less serious crimes than felonies, and in most cases, carry a possible sentence of up to one year. While Mr. Range’s crime was technically a misdemeanor under Pennsylvania law, it had a penalty that made it look like a traditional felony.  Under the Felon in Possession Law, Congress chose to treat all misdemeanors that were punished like felonies, as felonies, for the purpose of federal law.  As a result, Mr. Range’s conviction resulted in a lifetime ban on owning a firearm under federal law.

The Third Circuit held that, as applied to Mr. Range, the Felon in Possession Law was unconstitutional under the Second Amendment.  The Third Circuit rejected the argument that the Second Amendment only protected “law abiding citizens.”  The Third Circuit held that this was too nebulous of a standard to have practical application and would give governments too much latitude to infringe upon the right protected by the Second Amendment.  More importantly, the court pointed to the text of the Second Amendment that expressly states that the right of the “people” to “keep and bear arms shall not be infringed.”  The constitution uses the word “people” in a number of places, and in every other place the word “people” is used, it means all the people. The court rejected the law-abiding person standard and concluded that Mr. Range did not lose his Second Amendment rights when he was convicted.

This, however, did not end the analysis.  Under Bruen, the government now had the opportunity to show that states had limited the right of individuals convicted of felonies from possessing firearms when the Second Amendment was enacted and when the 14^th Amendment was enacted after the Civil War. The court found that the federal government did not present any such evidence.

While Mr. Range was convicted of a non- violent crime, it is not clear whether that was an influential fact in the court’s decision.  The court stated that the “Government has not cited a single statue or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit a crime.  Nor has the Government cited forfeiture cases in which the convict was prevented from regaining his possessions, including firearms.”

Mr. Range did not ask the court to strike down the Felon in Possession Law in its entirety (a “facial challenge”).  Instead, he claimed that, as applied to him, the Felon in Possession Law was unconstitutional.  The Third Circuit, therefore, did not strike down the Felon in Possession Law as being unconstitutional.  The Third Circuit held that the law, as applied to Mr. Range, was unconstitutional.

The decision, however, is far from “narrow” as suggested by the Third Circuit.  Any non-violent felon can now challenge the Felon in Possession Law as unconstitutional as applied to them (at least within the Third Circuit).  Unless the federal government can find some historical evidence that it missed, it is hard to see how a court within the Third District could do anything but find the Felon in Possession Law unconstitutional as applied to such individuals.  The decision is, therefore, quite sweeping and could cause a flood of lawsuits by non-violent felons seeking to have their Second Amendment rights restored.

If you have questions about your Second Amendment rights, firearms laws I am here to help. As a dedicated Chicago civil rights attorney, I am committed to providing guidance, advocating for your rights, and navigating the complexities of the legal system with you. Contact the Law Offices of George M. Sanders today.