A Ninth Circuit panel Thursday ruled that a blanket prohibition on convicted felons possessing firearms violates their Second Amendment rights, at least when it comes to nonviolent offenders who served out their sentence.
In a split decision, the three-judge panel threw out firearm possession conviction of a Los Angeles member of a street gang who had five prior felony convictions and was later sentenced to 51 months in federal prison for being a “felon-in-possession.”
Writing for the majority, U.S. Circuit Judge Carlos Bea, a George W. Bush appointee, said the landmark 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen requires that the government shows that there is a historical tradition that supports the categorical prohibition on defendants such as Steve Duarte possessing a firearm.
This, according to the judge, the government failed to do because there was no analogous law at the time of the Founding Fathers that someone like Duarte would have been deprived of their right to bear arms. In fact, the judge said, his offenses would have been considered misdemeanors rather than felonies or not even have existed at all in the 18th and 19th centuries.
“We do not base our decision on the notion that felons should not be prohibited from possessing firearms,” Bea wrote, noting that as a matter of policy the blanket prohibition may make a great deal of sense. But, citing preceding decisions, the judge said “the very enumeration of the Second Amendment right in our Constitution takes out of our hands the power to decide for which Americans that right is really worth insisting upon.”
U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, joined Bea in the majority opinion.
— Edvard Pettersson in Ninth Circuit finds that convicted felons also have Second Amendment rights
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“Writing for the majority, U.S. Circuit Judge Carlos Bea, a George W. Bush appointee, said the landmark 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen requires that the government shows that there is a historical tradition that supports the categorical prohibition on defendants such as Steve Duarte possessing a firearm.”
This is my genuinely-shocked face.
I eagerly await LKB’s analysis on how it impacts things going forward.
Mark Smith at his ‘4 Boxes Diner’ said he would not be surprised if this decision gets a mention in the very-soon upcoming ‘Rahimi’ SCotUS decision., since Hell has truly frozen over (at least as far as the 9th circuit is concerned…
https://www.youtube.com/watch?v=LeCoSDxFrvM
Yeah very interested in his take as well, best guess is an en banc is being weighed as an option and may be left alone as it could become a bridge too far for some law and order over civil rights types.
“…en banc is being weighed as an option and may be left alone as it could become a bridge too far for some law and order over civil rights types.”
Yeah, that’s a real risk, if the SCotUS grants cert. and makes that ruling *national* in scope.
A *serious* upside now is, the export ban makes zero difference to the manufacturers, as literally many 10s of millions of newly-eligible gun owners will strip the shelves of every last gun available.
It may even be enough to motivate new construction of ammo factories…
Primer and powder production would probably be the bigger bottlenecks but having more domestic manufacturing and production is always a good idea. Still want to see the export ban kicked to the curb as several countries are leaning more pro 2a and now are choked off from our supply.
Unless SCOTUS affirms pretty unconditionally in Rahimi (more on that in a minute), reversal of this decision by CTA9 en banc is all but assured.
On Rahimi, here’s my current “inside baseball” SCOTUS tea leaves:
In October, there were six cases argued. In November, there were eight (of which two were resolved by per curiam or GVR summary adjucation (no authored opinion)). The Court very typically tries to spread out the writing of opinions such that the distribution is more or less equal among the judges. So for Oct-Nov, there are 12 cases (including Rahimi) that will have authored opinions, meaning it is very likely that six Justices will write one opinion and three will write two.
There have been eight opinions released for cases argued Oct/Nov. Writing Justices so far: Kavanaugh (two), Barrett (two), Kagan, Sotomajor, Jackson, Gorsuch. Kagan and Jackson have also written opinions for cases that were argued in December, thus making it extremely unlikely they will have any other opinions from Oct-Nov panel cases.
Thus, Roberts, Alito, and Thomas have not written any majority opinions from those two months, making the odds very high that each of those judges will have at least one of the four remaining cases (which includes Rahimi).
One of the remaining cases is a redistricting case. For a lot of reasons, I suspect Roberts has that one. If so, the odds of Thomas or Alito having the pencil in Rahimi go up substantially.
Because Kavanaugh and Barrett have already written two opinions from this period, the odds of them also having Rahimi and thus doing three for this period are VERY long, so I think it is safe to exclude them from consideration. The anti-2A wing of the court can similarly be excluded from consideration. It’s possible that Roberts / Alito / Thomas each have one of the remaining cases and Gorsuch doubles up with Rahimi, but I don’t see that as being likely.
So, my current prediction for who is writing Rahimi is:
Thomas or Alito: 65%
Roberts: 25%
Gorsuch: 8%
Anyone else: 2%
As more opinions of the remaining cases get released, we’ll have a better picture. And, of course, Rahimi could be released any time now.
If it’s by Thomas or Alito, I think we are OK. Roberts . . . possibility of squishiness. Gorsuch: probably OK.
“As more opinions of the remaining cases get released, we’ll have a better picture. And, of course, Rahimi could be released any time now.”
Doesn’t the Court usually leave the bombshell decisions for the very end, as they are walking out?
The court potentially ruling that many 10s of millions of newly-eligible gun owners stripping the shelves bare will leave them with a conniption-fit of *epic* proportions… 😉
Sometimes they do, sometimes they don’t.
My WAG is that they are not going to unconditionally affirm the Fifth Circuit — even Thomas seemed troubled by this “hard case” involving a genuinely bad person. We may see them find that historically, INDIVIDUALS determined to be dangerous could be disarmed, and come up with some sort of test that requires a case by case assessment / finding of whether the involved individual is in fact “dangerous,” rather than a categorical prohibition. That would require a remand.
But it is also possible that they will just apply Bruen as the Fifth Circuit did and affirm.
“We may see them find that historically, INDIVIDUALS determined to be dangerous could be disarmed, and come up with some sort of test that requires a case by case assessment / finding of whether the involved individual is in fact “dangerous,” rather than a categorical prohibition.”
Such as a willingness to use physical violence against another as a potential test? That there would blow the doors open on restoring gun rights to people jammed-up on innocuous crap like felony process crimes, and tax cheats, as just two examples…
That’s good timing. Thomas and Alito seem to be the most reliable.
Thoughtful discussion, gents. Well done!
For Clinton, everyone from Private Martin to General Washington was a dangerous felon to be disarmed.
Yes, some anti types think that a good citizen who is armed is just a time bomb waiting to go off and because of that in the anti’s mind a good citizen is no longer a good citizen when they choose to arm themselves. I have witnessed this attitude first hand.