The American Civil Liberties Union (ALCU) has a long track record of supporting various gun control laws despite its traditionally oppositional stance to government restrictions on constitutional rights. However, the group has now found at least one gun law it thinks violates the Second Amendment.
On Tuesday, the ACLU and several of its state chapters filed an amicus brief with the Ninth Circuit Court of Appeals in United States v. Duarte. The brief asks the en banc court to reaffirm a since-vacated panel ruling from May that sided with defendant Steven Duarte and overturned his conviction for possessing a firearm after prior convictions for drug possession and vandalism. The group argued that a blanket lifetime ban on felons owning guns violates the Second Amendment.
“The Supreme Court has held that, to override the Second Amendment’s protection, the government must show that its regulation is consistent with the historical principles underpinning our founding-era tradition of restricting firearms,” the ACLU’s brief reads. “Because the government has failed to point to any such support for permanently disarming every person convicted of an offense punishable by more than one year, this Court should uphold Mr. Duarte’s as-applied challenge to section 922(g)(1).”
The filing stands out as one of the few times the ACLU has gone on record arguing that an existing gun law is unconstitutional. It places the progressive group alongside the National Rifle Association, Firearms Policy Coalition, and the libertarian-leaning Cato Institute in filing briefs against the federal non-violent felon gun ban.
The ACLU’s brief took an expansive view of who counts among “the people” covered by the text of the Second Amendment. It dismissed the Government’s position that only “responsible, law-abiding citizens” count, calling it “extreme” and an argument foreclosed by the Court’s United States v. Rahimi decision.
“As the Court held there, the Second Amendment’s protections are not limited to ‘responsible’ or ‘law-abiding’ citizens,” the group wrote. “That interpretation is consistent with how the phrase ‘the people’ is used in other Bill of Rights provisions, none of which exclude people with felony convictions—much less persons deemed not ‘responsible, law-abiding citizens.'”
The ACLU then turned to the historical record. It noted that the government is unable to identify “any founding-era laws [that] specifically prohibited people with felony convictions from possessing guns—let alone those who committed any offense, including nonviolent and nondangerous offenses, punishable by more than one year in prison.”
“It instead invokes two other categories of 18th-century laws: (1) laws authorizing capital punishment for people convicted of felonies; and (2) laws categorically disarming certain groups, including Catholics, Black people, and Native Americans,” the group wrote.
The group cautioned The Court against accepting the argument that because nearly all people convicted of felonies at the Founding could be punished with death, they could also be permanently disarmed. It noted that far fewer crimes were classified as felonies during the Founding. It also said that the ability to execute convicted felons says nothing about what was permissible for those who were not executed and instead returned to society.
“The principle the government draws from these laws cannot be that, where capital punishment is authorized, all other penalties— including those that permanently deny constitutional rights—are also permissible,” the ACLU wrote. “If it did, then nothing would stop the government from stripping a person with felony convictions of, for example, their right to free speech, or any other constitutional rights. That is obviously not the law.”
The ACLU chastised the government’s citation of bigoted status-based bans on moral and legal grounds.
“As an initial matter, the obvious invalidity of denying people rights based on their race or religion should bar reliance on these examples altogether,” the group wrote. “Moreover, the principle that the government seeks to draw from these laws—that Congress can impose generalized categorical prohibitions on possessing firearms—is at far too high a level of generality to be acceptable.”
Instead, it noted that none of the bigoted laws cited by the government were permanent or premised on prior convictions and that most offered persons subject to them a way to regain their arms rights through different avenues. It contrasted the government’s reliance on such laws with the argument accepted by the Supreme Court in support of the domestic violence restraining order gun ban in its June Rahimi decision.
“Rahimi placed great weight on the fact that 18 U.S.C. § 922(g)(8) ‘s prohibition is ‘temporary’—in Mr. Rahimi’s case, it was just ‘one to two years after his release from prison’—and predicated on an individualized determination that the person poses a specific threat to others,” the ACLU wrote. “The permanent nature of section 922(g)(1) ‘s ban, unconnected to dangerousness, is thus further reason to conclude that the statute, as applied to Mr. Duarte, is inconsistent with historical principles.”
Finally, beyond the constitutional arguments surrounding the felony gun ban, the ACLU also drew attention to more practical concerns. It noted that the statute “encompasses an extraordinarily broad range of predicate offenses” that capture non-violent crimes far more often than violent ones. It cited court data showing only 18.2 percent of felony convictions in state courts and 4.2 percent of federal felony convictions were for violent offenses. Meanwhile, the lifetime ban applies to all felons regardless of violent status, and it even extends to state misdemeanors punishable by more than a year in jail.
The group also emphasized the way the prohibition has produced “racially disparate harms,” particularly for black Americans.
“Nearly 60 percent of people convicted under section 922(g) in 2023 were Black,” the group wrote. “As a result of these convictions, ‘nearly a quarter of Black adults have been permanently stripped of the right to lawfully possess firearms.'”
In turn, the group argued these statistics help fuel “disparate law enforcement practices” like stop-and-frisk policies by police departments looking to crack down on illegal gun possession.
“To be sure, these racial harms do not bear directly on the Second Amendment analysis at issue,” the ACLU concluded. “But they are an important reminder that ‘[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials.'”
Overall, the brief reads like it could have come from any number of gun-rights groups challenging the federal felony gun ban alongside public defender’s offices across the country over the last couple of years. Unsurprisingly, it has already drawn plaudits from some gun-rights advocates. Alan Gottlieb of the Second Amendment Foundation called it “a stunningly detailed amicus brief” and said it marked “a remarkable and refreshing approach” by the organization.
Whichever way it goes, the Duarte case may not be the last word on firearms rights for non-violent felons. After all, lawsuits against the felony gun ban have been the most common Second Amendment challenge since the Supreme Court set a new standard for reviewing gun laws in 2022’s Bruen. However, arguments backing Duarte could prove more persuasive coming from the ACLU in a progressive-leaning court like the Ninth Circuit. If that court sides with the ACLU, it would further deepen the existing federal circuit split over the felon-in-possession ban and give the Supreme Court even more of a reason to take the issue up.
The Court has already been under immense pressure from the Department of Justice and gun-rights activists alike to do just that. While it opted to kick the can down the road earlier this year by granting, vacating, and remanding many of those requests, several have already been returned by their respective circuits with unchanged outcomes.
Given that Duarte will soon be one more of those cases sitting on The Court’s doorstep and that the Court’s majority is already trending toward making “dangerousness” its standard for disarmament, it would not be surprising to see the ACLU’s arguments echoed in a Supreme Court majority opinion in the near future.
