The Reload Analysis Newsletter

Members’ Newsletter: Another Question SCOTUS Needs to Settle

The Supreme Court has heard arguments in two gun cases over the last few months. But in the wake of its landmark Bruen ruling, lower courts have created a slew of disagreements that the court will probably have to address sooner rather than later.

Contributing Writer Jake Folgeman takes a look at one that seems to be inching closer to the top of the list: the federal felon-in-possession ban.

I also explain why President Joe Biden’s State of the Union speech shows he has no plan to moderate on guns ahead of the election. And why that’s probably a bad idea going into what’s shaping up to be a very tight race.

Plus, we answer your gun questions on the podcast! And I give a rundown of how well my talk at Columbia University went.


Police stand guard outside the Supreme Court
Police stand guard outside the Supreme Court / Stephen Gutowski

Analysis: The Felon-in-Possession SCOTUS Collision Course [Member Exclusive]
By Jake Fogleman

A new federal appeals court ruling has widened the circuit split among courts grappling with whether felons can be permanently disarmed. That may force the Supreme Court to weigh in soon.

On Tuesday, a three-judge panel for the Eleventh Circuit Court of Appeals unanimously rejected a previously convicted drug trafficker’s challenge to 18 U.S.C. § 922(g)(1), the federal ban on felons possessing firearms. The panel determined that the Supreme Court’s New York State Rifle & Pistol Association v. Bruen decision did not upset its precedent upholding the federal felony gun ban’s validity.

“Because the Supreme Court ‘made it clear in Heller that [its] holding did not cast doubt’ on felon-in-possession prohibitions, and because the Court made it clear in Bruen that its holding was ‘[i]n keeping with Heller,’ Bruen could not have clearly abrogated our precedent upholding section 922(g)(1),” Judge William Pryor, a George W. Bush appointee, wrote in US v. Dubois. “Indeed, the Bruen majority did not mention felons or section 922(g)(1).”

The ruling makes the Eleventh Circuit the latest court to weigh in on the question, but it is far from the first to issue a decision on the constitutionality of § 922(g)(1) in light of Bruen.

In the less than two years since that opinion was handed down—reorienting the way courts analyze Second Amendment cases in the process—the FifthEighth, and Tenth Circuits have all issued opinions upholding the federal ban. On the other hand, the Third Circuit last June ruled the ban unconstitutional as applied to a particular non-violent felon. Meanwhile, though it has not yet had the opportunity to opine on the legal merits of the ban, the Seventh Circuit also vacated and remanded a lower court decision upholding it with instructions to perform a more thorough Bruen analysis.

The bulk of the court decisions to date have upheld the ban, but the existence of a circuit split and the growing minority of lower court rulings striking it down highlights the uncertainty at play. Even among the courts that have agreed to uphold it, each case’s rationale has looked different.

The Fifth Circuit, for instance, has only weighed in on the legality of the ban in a series of unsigned opinions rejecting criminal defendants’ attempts to challenge their 922(g)(1) convictions under plain error review—an unlikely gambit. The Tenth Circuit, like the Eleventh Circuit’s recent ruling, relied heavily on the Supreme Court’s dicta in Heller to argue that its precedents for upholding the felony gun ban have not been disrupted by the Court’s new Second Amendment test. Each court did so instead of thoroughly analyzing the relevant text and historical tradition surrounding gun prohibitions.

By contrast, the Eighth Circuit issued the most expansive decision upholding the federal felony gun ban of any circuit court to date. In its US v. Jackson decision, a three-judge panel for the circuit not only held that the nation’s historical tradition of firearms regulation supports the ban but that it also precludes individual as-applied challenges to the ban by non-violent felons.

“In sum, we conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” Judge Steven Colloton, a George W. Bush appointee, wrote. “Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.”

“We conclude that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1),” he added.

As a result, the constitutional rights of convicted felons remain difficult to parse throughout much of the country. Those residing in states covered by the Eighth Circuit have zero claim to Second Amendment protection, no matter how severe their prior offenses were or how long ago they occurred. Those residing under the Third Circuit’s jurisdiction may have an avenue for legal protection depending on the nature of their criminal record. Meanwhile, those in the rest of the country remain in a holding pattern until the Supreme Court weighs in.

The practical implications of the federal ban’s uncertain legal status for the criminal justice system are also enormous. According to data from the United States Sentencing Commission, firearms crimes are the third most common offenses prosecuted by the federal government, and nearly 88 percent of gun crime convictions are for § 922(g)(1) alone.

That helps explain why individual defendants and the US Government have eagerly requested the High Court’s guidance on the matter. Of the 13 Second Amendment cert petitions currently pending at the Court, eight are from cases related to disarming prohibited categories of people—six of those explicitly concern § 922(g)(1).

The Justices could help resolve or otherwise forestall the legal questions surrounding the federal felony gun ban with its highly anticipated opinion in US v. Rahimi. That opinion, which could come down at any time over the next few months, will adjudicate the legality of the federal gun ban for people subject to domestic violence restraining orders. How the Court reaches its decision on that question could shed light on the proper analysis for convicted felons who are disarmed under the umbrella of the same federal statute.

If it does not, expect discord in the lower courts to continue until the High Court settles the question.


Podcast: Answering Your Firearms Questions [Member Early Access]
By Stephen Gutowski

This week, we’re answering your questions on the show!

That’s right, it’s time for another Q&A episode of the podcast. The questions are submitted by Reload Members, then Contributing Writer Jake Fogleman, and I do our best to answer them.

As expected, this episode features a lot of great questions that really stretch our knowledge. We tackled a wide variety of topics.

Members asked about everything from permits in permitless carry states to the number of lifetime NRA members to the Supreme Court’s view of machine guns. The questions take us all over the place.

Plus, I describe how speaking to a group of Columbia University students earlier this week went.

You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is available on our YouTube channel. Here’s an auto-generated transcript as well. Reload Members get access on Sunday, as always. The show goes public on Monday.


Speaking at Columbia University

On Wednesday, I was up in New York City speaking to a class at Columbia University. This was the second year in a row that Professor Ted Alcorn invited me up to talk with one of his public health policy classes. I hope he invites me back again next year!

I had a great time discussing gun politics and culture with the students. I’m always impressed with the stuff the students bring up. Much like Reload Members, they often give me questions that aren’t what I was expecting.

And they’re open-minded as well. That makes the whole experience very rewarding. I’ve yet to regret doing a talk with a college class.


An attendee examines a pistol optic at SHOT Show 2024
An attendee examines a pistol optic at SHOT Show 2024 / Stephen Gutowski

Analysis: Biden Won’t Tack to Middle on Guns as Election Rematch Confirmed [Member Exclusive]
By Stephen Gutowski

Despite trailing in the polls against former President Donald Trump, President Joe Biden remains committed to his approach on gun policy.

With their respective primaries effectively wrapped up after they each won nearly all of the Super Tuesday contests, the 2024 election will be a 2020 rematch. It’s one most Americans didn’t want, and one each party’s most committed voters seem to believe they can’t lose. Of course, the polling suggests otherwise.

Trump is currently leading by about two points in the Real Clear Politics average of polls. He’s led there for the entire year. But never by more than a few points. And there’s reason to think he should be up by significantly more, given how poor Biden’s approval rating has become. There’s also reason to believe Biden’s numbers could improve since a not-insignificant share of his disapproval is driven by voters in his party or people who previously picked him over Trump in 2020.

Either way, the most likely scenario for this race between two deeply unpopular candidates is one in which the margin of victory is razor-thin. That was the case in the last two elections, after all. In that scenario, persuadable voters become very important, which makes sticking to political positions primarily favored by partisans potentially perilous. That’s why moderating on gun policy could prove to help Biden—or Trump.

But President Biden’s State of the Union address certainly suggests he doesn’t plan to take that approach, though.

“I’m demanding a ban on assault weapons and high-capacity magazines,” he said.

The big problem with Biden continuing to center his gun agenda around an AR-15 ban headed into the election is that it’s just not very popular. Last February, an ABC News/Washington Post poll found a majority of Americans oppose such a ban. It was just one of a series of polls that have found declining support for the President’s marquee gun policy.

Beyond that, it’s clear Biden’s overall approach to gun policy hasn’t helped boost his odds to this point. In addition to passing the 2022 Bipartisan Safer Communities Act, he has instituted several ATF rules that seek to ban pistol braces or unfinished gun part sales.

Biden’s approval rating on guns has tracked below his overall approval rating for his entire presidency. In the last poll from the Associated Press and NORC Center for Public Affairs Research to ask about his handling of gun policy, Biden hit an all-time low at 31 percent approval.

This is probably due in large part to a dicadomy in attention given to what Biden has done on guns. Those accomplishments have either not satisfied gun-control advocates or affected devices they don’t pay close attention to. On the other hand, the potentially millions of gun owners who own the pistol braces or home-built guns Biden has targeted are likely noticing them and not very happy.

So, Biden’s executive actions put him in a bit of a pickle. He can’t pass the sort of high-profile bans he and his allies want, and he’s limited to taking executive action in the narrow gray areas of current law. That results in policies that go relatively unnoticed by supporters and despised by opponents while the lack of an AR ban or universal background checks is noticed by supporters but does little to placate opponents.

That makes it difficult to foresee a major improvement in Biden’s approval on guns, especially among swing voters. It’s possible he benefits from a general bump in approval among Democrats as the election nears and they begin to come home. But it will be harder to capture independents on the issue.

Doubling down on new bans will only make the task even more difficult.

Perhaps things won’t swing this way. Maybe Biden’s numbers continue to sink through election day and the gap between him and Trump widens. Perhaps Trump is convicted of one of the multiple felonies he’s been charged with and his support nosedives. Maybe turning out committed partisans is all that ends up mattering in our increasingly polarized era. and the side with the most motivated voters, or the best turnout machine, wins without trying to really persuade anyone not already on their team.

It’s impossible to predict where things will actually end up.

But it would be unsurprising if the 2024 election came down to close contests in a few key states that are each decided by a few thousand votes, a substantial portion of whom being cast by people who aren’t party-line voters. If that’s the case, tacking to the center on all kinds of issues could help one of the candidates pull off a win. The numbers we’ve seen over the past three years suggest President Biden’s aggressive approach to enacting new gun restrictions hasn’t helped Americans’ view on his handling of the issue. Sticking to it probably won’t help him bring skeptical independents on board.


That’s it for now.

I’ll talk to you all again soon.

Thanks,
Stephen Gutowski
Founder
The Reload

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