Fights over non-violent felon gun rights—including those featuring highly sympathetic plaintiffs—continue to pile up at the Supreme Court’s doorstep. The Department of Justice (DOJ) has asked the Court not to weigh in, but hasn’t fleshed out its rights restoration process alternative.
Last week, the en banc Ninth Circuit Court of Appeals added another potential candidate to the coming deluge when it upheld Steven Duarte’s conviction for being a felon in possession of a firearm. Duarte, whose rap sheet includes multiple previous convictions for crimes ranging from vandalism and drug possession to evading police, argued that because his criminal history included only non-violent offenses, he should retain Second Amendment protections.
The Ninth Circuit disagreed.
“To support the application of § 922(g)(1) to Duarte, the Government proffers a variety of historical sources that evince two regulatory principles that: (1) legislatures may disarm those who have committed the most serious crimes; and (2) legislatures may categorically disarm those they deem dangerous, without an individualized determination of dangerousness,” Judge Kim McLane Wardlaw wrote for the majority. “We address each in turn, and agree that either supplies a basis for the categorical application of § 922(g)(1) to felons.”
As a result, the largest appellate court in the country now joins the Fourth, Eighth, Tenth, and Eleventh Circuits in refusing to distinguish between violent and non-violent criminals for the purposes of categorical, lifetime disarmament. Assuming Duarte appeals the decision, which seems likely, it could present a compelling opportunity for the High Court to address the now deepened circuit split with the Third, Fifth, and Sixth Circuits, which have all recognized an ability for individualized challenges to the federal ban by non-violent offenders.
But even before that can happen, an even more enticing option may have already entered the Court’s queue. Earlier this month, lawyers representing Melynda Vincent filed a petition for certiorari over the Tenth Circuit’s decision in her case not to accept as-applied challenges to the felon gun ban.
Like Duarte, Vincent is also a non-violent felon, but her story paints a far more sympathetic picture. Her sole disqualifying conviction came in 2008, when she was homeless and wrote a fraudulent $498 check at a grocery store. She was convicted of felony bank fraud, sentenced to probation without ever serving time in jail, and has not reoffended. She is now a mother and an employed social worker with multiple master’s degrees, but is nevertheless permanently prohibited from owning a gun to protect her family.
Given the optics of calling into question the most commonly enforced federal gun law, the justices may find it easier to do so by accepting a case like Vincent’s, where even most hardline gun-control advocates would have a difficult time arguing she is too dangerous for consideration.
Casting a shadow over these cases and more, however, is the DOJ and its current stance on non-violent felons. In recent weeks, the DOJ has tipped its hand over its preferred strategy in dealing with the question, and it involves keeping the issue off of the Supreme Court’s docket.
In the case of Bryan Range, a Pennsylvania man with a 30-year-old state misdemeanor conviction for understating his income on a food stamp application, the Third Circuit ruled the ban violated his Second Amendment rights. However, DOJ intentionally chose not to file an appeal with the justices.
“The Department of Justice has concluded that a petition for a writ of certiorari is not warranted in this case,” Solicitor General John Sauer wrote a letter sent to the Senate Judiciary Committee last month. “The Third Circuit’s decision is narrow, leaving Section 922(g)(1) untouched except in the most unusual applications.”
Sauer filed similar remarks responding to two pending petitions in felon-in-possession challenges at the Supreme Court last month, arguing that the issue “does not warrant this Court’s review.”
Around the same time, the Attorney General’s Office also revealed the first signs of life for its renewed rights restoration process. It published a notice granting relief to ten individuals, including actor and prominent Donald Trump supporter Mel Gibson.
Presumably, someone like Vincent would be an easy candidate for rights restoration under the new process. But of course, that would first require a functional process to actually be in place. The agency has not issued any guidelines on how future candidates beyond the initial ten might apply, nor has it responded to multiple requests for comment on the details. That, however, has not stopped the Department from citing this to-be-determined process as an additional reason for the Court not to grant any felon-in-possession cases.
“Although there is some disagreement among the courts of appeals regarding whether Section 922(g)(1) is susceptible to individualized as-applied challenges, that disagreement is shallow,” Sauer wrote in Hunt v. United States. “And any disagreement among the circuits may evaporate given the Department of Justice’s recent reestablishment of the administrative process under 18 U.S.C. 925(c) for granting relief from federal firearms disabilities.”
The DOJ has not yet had a chance to respond to Vincent’s petition, but it’s a safe bet to assume that those same arguments will reappear to rebut her request for Supreme Court relief. At which point, all eyes will be on the justices to see how they weigh the promise of an amorphous rights restoration program versus the ongoing controversy roiling the lower courts over a law that impacts thousands of individuals every year.
The Court has thus far shown a willingness to weigh in and establish that the government can disarm people found by courts to be dangerous. Time will soon tell if they are willing to do the same for people like Melynda Vincent, who have never been found to be dangerous but are nevertheless permanently deprived of Second Amendment rights. Perhaps after Vincent, they’ll look at Duarte’s less-clear-cut case as well.
