Adjudicating whether non-violent felons retain their gun rights has become one of the most hotly contested fields of Second Amendment law. The Sixth Circuit Court of Appeals added a new wrinkle to the dispute.
On Monday, a three-judge panel rejected a Kentucky defendant’s claim the federal prohibition on felons owning guns violates his Second Amendment rights. The panel determined that even though the defendant’s earlier felonies were technically non-violent offenses, his broader criminal record contained violent misdemeanors that indicate he is too dangerous to have firearms.
“Morton’s criminal record demonstrates dangerousness, specifically that he has committed ‘violent’ crimes ‘against the person,’” Judge Rachel Bloomekatz wrote in US v. Morton. “So, his conviction is consistent with the Second Amendment as interpreted in Williams. Accordingly, § 922(g)(1) is constitutional as applied to him.”
It’s an outcome that, on its face, seems to extend beyond the bounds of the statute. After all, Section 922(g)(1)–with the exception of domestic violence offenses and rare misdemeanor statutes punishable by more than a year in jail–is primarily triggered by felony convictions. Yet in Morton, it was the defendant’s misdemeanors and other non-charged conduct that proved key to denying him his gun rights.
To understand how this particular panel reached that conclusion, it’s worth revisiting an earlier decision from the same court in August.
The Williams Test
In US v. Williams, another Sixth Circuit panel upheld 922(g)(1) against a facial and as-applied challenge brought by a defendant previously convicted of armed robbery. That panel went further than any other appellate court to date in attempting to establish a general framework for evaluating future challenges to the federal felony gun ban. The framework, which now binds the Morton panel, emphasized “dangerousness” as the delineating principle.
“[W]e hold today that § 922(g)(1) is constitutional on its face and as applied to dangerous people,” Judge Amul Thapar wrote in Williams. “Our nation’s historical tradition confirms Heller’s assumption that felon-in-possession laws are ‘presumptively lawful.’ The history reveals that legislatures may disarm groups of people, like felons, whom the legislature believes to be dangerous—so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.”
To help future courts determine who is dangerous, Thapar listed three general categories of potential criminal offenses ranked by how indicative they are of potential dangerousness.
“A person convicted of a crime is ‘dangerous,’ and can thus be disarmed, if he has committed (1) a crime ‘against the body of another human being,’ including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous,” he wrote. “A more difficult category involves crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements.”
He instructed future courts that they did not need to find a specific match to his categorical examples to determine dangerousness but instead should engage in their own individual fact-finding based on the “unique circumstances of the individual” and “details of his specific conviction.” Importantly, he also encouraged courts to evaluate a defendant’s entire criminal record beyond “just the specific felony underlying his section 922(g)(1) prosecution.”
It was under this guidance that the Morton panel both allowed the defendant’s as-applied challenge to be brought forth and, ultimately, what led them to deny it. Reviewing the totality of his criminal record, the panel determined that Morton “undoubtedly” demonstrated the level of dangerousness that warrants permanent disarmament.
“Among other offenses, Morton was previously convicted for wanton endangerment and possessing a firearm as a felon after he shot at his ex-girlfriend and her family, and then showed up at her house a few weeks later and verbally harassed her with a gun on his person,” Judge Bloomekatz wrote. “On another occasion, Morton was convicted of assault resulting from a domestic-violence incident after he punched his then-girlfriend in the head during an argument. Although the latter offense is not one of the felonies underlying the indictment, we may look at Morton’s whole criminal history in assessing dangerousness.”
In other words, though the federal ban itself only contemplates crimes punishable by more than one year in prison (i.e., felonies), the historical principle that underpins it is one of disarming those deemed dangerous. Therefore, the Sixth Circuit believes it is appropriate to incorporate a much broader scope of conduct in determining the felon ban’s constitutionality.
Circuit Split Deepens
While the Morton panel’s analysis was not necessarily unexpected, it is an outlier among the appellate courts that have addressed the felon-in-possession ban.
For example, the Fifth Circuit has similarly recognized the viability of as-applied challenges to the federal ban, but it has explicitly rejected incorporating non-felony offenses in its analysis.
“For the purposes of assessing Diaz’s predicate offenses under § 922(g)(1), we may consider prior convictions that are ‘punishable by imprisonment for a term exceeding one year,’” Judge Jacques Wiener wrote in US v. Diaz, which upheld the law. “Diaz’s pertinent criminal history consists of vehicle theft, evading arrest, and possessing a firearm as a felon. Both he and the government discuss various drug offenses in their briefing on his as-applied challenge, but those are not relevant for our purposes.”
Additionally, an en banc Third Circuit panel and a three-judge Ninth Circuit panel both struck down 922(g)(1) as applied to particular defendants with non-violent convictions. They each did so narrowly without expounding on broader principles for deciding future as-applied challenges. Notably, each of those decisions has also since been vacated—the Third Circuit’s by the Supreme Court and the Ninth’s by an en banc appeal—and each will soon be redecided.
Finally, the bulk of the courts to issue rulings on the felon-in-possession ban since Bruen has rejected the very concept of individualized analyses for specific felons. A series of rulings out of the Fourth, Eighth, Tenth, and Eleventh Circuits have all flatly upheld § 922(g)(1) as constitutional and foreclosed the possibility for as-applied challenges brought by non-violent felons until the Supreme Court explicitly says otherwise.
Outlier? Or Preview?
Despite its unique national position, there’s at least some reason to think that the Sixth Circuit’s approach is more in line with where Second Amendment jurisprudence is ultimately headed on the question of felon gun rights.
The Williams opinion that created the Sixth Circuit’s framework was delivered by Judge Amul Thapar, a well-known conservative jurist who appeared on Donald Trump’s Supreme Court shortlist multiple times during his first administration. Thapar’s profile, combined with his opinion’s emphasis on “dangerousness” as the central criterion for disarmament, could prove particularly persuasive to a Supreme Court already trending in that direction.
Of course, that would require the Court to grant and decide a felon-in-possession case, something it has thus far been hesitant to do. But the justices’ continued silence on the matter is not likely to remain tenable for much longer as the enforceability and constitutionality of the nation’s most frequently charged gun law grows in its inconsistency.
