The government can permanently disarm somebody convicted of non-violent felonies if their broader criminal history contains violent conduct, a federal appeals court has ruled.
On Monday, a three-judge panel for the Sixth Circuit Court of Appeals unanimously rejected a Kentucky defendant’s as-applied challenge to his recent conviction for possessing a firearm as a felon. The panel ruled that even if a person is convicted of non-violent felonies, the totality of their criminal record can indicate “dangerousness” that permits disarmament under the Second Amendment.
“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.”
The ruling stands out as the first time the Sixth Circuit has applied its unique standard for adjudicating challenges to the federal felony gun ban—by far the most common Second Amendment claim arising in the courts since the Supreme Court’s landmark Bruen decision. Other circuits have either issued blanket rulings upholding the federal ban as constitutional or struck it down in narrow applications without setting a generalized standard for evaluating other cases. But the Sixth Circuit crafted a standard that only convicted felons who are shown to be “dangerous” can be disarmed in an August ruling upholding the ban.
Monday’s panel was tasked with applying that new “dangerousness” test to Jaylin Morton.
Morton was arrested in 2022 on several outstanding warrants and was found to be in possession of multiple handguns. At the time of his arrest, he already had “at least six prior felony convictions.” Those included multiple convictions for possessing a firearm as a felon, evading the police, one for burglary, and one for intimidating a participant in a legal process. He also had multiple non-felony assault convictions, including one for a domestic-violence incident in which he “punched his then-girlfriend in the head.”
He was subsequently indicted for possessing a firearm as a felon, which he moved to challenge on the grounds that the Second Amendment does not permit disarming him because his prior felony convictions were for non-violent crimes.
Drawing on the Sixth Circuit’s earlier ruling from August, US v. Williams, Judge Bloomekatz said that the court’s controlling precedent recognizes constitutional applications of the lifetime felony gun ban for offenses that “strongly suggest dangerousness,” particularly “crimes against the person,” like murder and assault. Bloomekatz said Morton’s criminal conduct “undoubtedly” demonstrates he is violent.
“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,” she 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.”
And though the domestic violence incident was not a felony that currently underlies his lifetime firearms ban, she said the court “may look at Morton’s whole criminal history in assessing dangerousness.”
“Moreover, we are not confined to the fact of conviction alone, but may consider how an offense was committed,” she wrote. “Accordingly, Morton’s convictions demonstrate his dangerousness, making § 922(g)(1) constitutional as applied to him.”
The decision adds to the growing divergence in how lower courts are handling the federal lifetime gun ban for felons. Even courts that have reached similar conclusions to one another have done so under a variety of approaches, which has resulted in a variety of enforcement standards for the most commonly charged federal gun statute.
In June, Department of Justice expressed concern over the growing divide and asked the Supreme Court to resolve the matter.
“The substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation,” US Solicitor General Elizabeth Prelogar said at the time.
However, the Court opted to sidestep the matter. Instead, it remanded half a dozen requested cases back down to the appellate system to be reconsidered in light of its most recent case law.
Even as many of those cases have returned with unchanged outcomes, the Court has not yet taken up one that would resolve the question.
