Pistols on display at the 2023 NRA Annual Meeting
Pistols on display at the 2023 NRA Annual Meeting / Stephen Gutowski

Federal Judge Rules Felons Aren’t Protected by Second Amendment

Convicted felons do not have gun rights, according to a new federal ruling.

Judge Holly A. Brady, who President Donald Trump appointed to the United States District Court for the Northern District of Indiana in 2019, denied a request last week to have a felon’s gun possession charge tossed on constitutional grounds. She found the Second Amendment does not protect Detric L. Cummings’, a convicted felon, ability to own a firearm. She further ruled that barring felons from owning guns is consistent with historical gun restrictions.

“The long list of colonial laws excluding felons from possessing firearms either shows that he is excluded from the protections of the Second Amendment or that § 922(g)(1) is consistent with the Nation’s historical tradition of firearm regulation,” Judge Brady wrote in United States v. Cummings. “Either is enough to defeat Defendant’s motion.”

The ruling is another example of how little success convicted felons have had in asserting protections under the Second Amendment, even in the wake of last year’s landmark New York State Rifle and Pistol Association v. Bruen. Despite the doubt cast on many modern gun restrictions by Bruen’s new standard for deciding gun cases, felons have had little success convincing courts that the Second Amendment forstalls prohibitions on their ability to own guns. In fact, Pepperdine University Professor Jake Charles recently released a report that found there hasn’t been a single successful Second Amendment claim brought against the federal law barring possession of firearms by convicted felons.

The recent setbacks come despite a handful of rulings and prominent dissents that questioned the federal lifetime prohibition on at least some, namely non-violent, felons owning guns. Justice Amy Coney Barrett dissented in favor of restoring the gun rights of a non-violent felon in 2019’s Kanter v. Barr. A similar case brought by a Pennsylvania man barred from owning guns over a welfare fraud conviction, Range v. Garland, recently lost before a panel of the 3rd Circuit but is currently awaiting a decision from the full court after oral arguments were held in February 2023.

United States v. Cummings does not deal with the question of non-violent felon gun rights, though. Cummings was arrested by Fort Wayne, Indiana police last summer for selling methamphetamine, fentanyl, and a revolver to an informant, according to WANE. The 40-year-old was convicted of shooting a woman over an unpaid debt in 2005. He was sentenced to 20 years in prison before being released in 2020.

Judge Brady was indignant at his attempt to have the gun possession charges tossed, arguing his plea flies in the face of “a virtual mountain of case law.” She said, “ninety-plus defendants that have hoed the same row in the past” and been denied. She dismissed his legal argument as little more than “academic.”

“Defendant has chosen the first step as the hill he will die on, arguing that he is one of ‘the people’ whose right to bear arms is protected by the Second Amendment, regardless of his extensive criminal history,” Judge Brady wrote. “And, to be sure, there is a healthy debate in the case law about who ‘the people’ are. But that debate is interesting only if you view the law as a zesty academic affair rather than a way to run an ordered society.”

She argued that, even if Cummings is part of “the people” mentioned in the Second Amendment, historical tradition would allow the government to restrict his access to guns. She briefly pointed to colonial bans on carrying firearms in a way that terrifies people and an 1866 South Carolina ban on “disorderly” people bearing arms. And she cited the Supreme Court’s notice in 2008’s Heller that its ruling did not cast doubt on felon gun bans.

Ultimately, in her two-page opinion, Judge Brady found the debate is settled and unworthy of a lengthy discussion.

“To spend judicial resources agonizing over which the Court should hang its hat on is little more than spilled ink,” she wrote. “More than ninety judicial opinions bear this out.”

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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