Convicted felons can be deprived of their right to own firearms whether or not they were convicted for a violent offense, a federal appeals court has ruled.
On Friday, a three-judge panel for the Tenth Circuit Court of Appeals ruled against a Utah woman who sought to restore her gun rights. The panel determined that the Supreme Court had tacitly acknowledged that the federal law prohibiting all convicted felons from possessing firearms was constitutional and declined to overturn its precedent reaching the same conclusion.
“Given the six Justices’ reaffirmation of the Heller language and the Court’s apparent approval of ‘shall-issue’ regimes and related background checks, we conclude that Bruen did not indisputably and pellucidly abrogate our precedential opinion in McCane,” Judge Robert E. Bacharach, a Barack Obama appointee, wrote on behalf of the panel in Vincent v. Garland.
The ruling adds to a small but growing list of decisions addressing whether it is unconstitutional to disarm felons, especially non-violent ones, under the Second Amendment. Since the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen last June, the Third Circuit found the federal ban unconstitutional, at least in some instances, while the Eighth Circuit came down on the other side last month. The growing split among the federal circuit courts on the question could place it on the fast track toward Supreme Court review.
The Tenth Circuit’s latest contribution to this body of law concerned Melynda Vincent. She was previously convicted of felony bank fraud for writing a fraudulent $498 check at a grocery store when she was homeless in 2008. She was sentenced to probation and never imprisoned for the crime, according to Courthouse News Service. Now an employed social worker and single mother, she challenged the ban because she wants a gun to defend her family. She sued the federal government over the felony gun ban in 2020.
In determining whether Vincent’s non-violent conviction means the federal government could disarm her for life, the Tenth Circuit panel declined to analyze whether her challenge was covered under the plain text of the Second Amendment or if there was a historical analogue for disarming her. Instead, the majority relied solely on the Supreme Court’s dicta in Heller and Bruen, which it said indicated that the federal ban was still good law.
“Though Bruen created a new test for determining the scope of the Second Amendment, the Court didn’t appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons,” Judge Bacharach wrote. “If anything, Bruen contains two potential signs of support for these prohibitions.”
According to Bacharach, the first sign was the Bruen majority’s reiteration of the late Justice Antonin Scalia’s remarks in Heller that the Court was not casting doubt on the constitutionality of longstanding firearms prohibitions, including the gun ban for convicted felons. The second sign was a concurrence by Justices Bret Kavanaugh and John Roberts reiterating that “shall-issue” gun-carry permitting laws, which rely on objective measures rather than the subjective judgment of officials, were acceptable under the Second Amendment.
“In preserving ‘shall-issue’ regimes and related background checks, the Court arguably implied that it was constitutional to deny firearm licenses to individuals with felony convictions,” he wrote. “Bruen’s language thus could support an inference that the Second Amendment doesn’t entitle felons to possess firearms.”
Though the majority opinion did not find a reason to examine Vincent’s challenge under the Bruen test, Judge Bacharach mused separately in his own concurrence over the different possible interpretations of the felon-in-possession ban under the test. He suggested there was still a lot of uncertainty about the ban’s legality under both prongs of the test.
“The text of the Second Amendment shows that it applies only to the right of the people with respect to possession of Arms,” he wrote. “There’s no question about the applicability of the term Arms: The federal ban addresses firearms, which are considered Arms under the Second Amendment. But does the term the people include individuals convicted of non-violent felonies?”
He likewise noted that identifying the relevant history surrounding whether non-violent felons were traditionally disarmed “is demanding and subject to differing interpretations.”
“Authorities have relied on different grounds for these prohibitions. For example, some judges trace these prohibitions to concern over a group’s threat to the political community,” he wrote, citing the Third Circuit opinion striking down the ban for a particular non-violent felon. “Other judges trace the prohibitions to threats of violence without parsing the traits of individual members.”
In light of the disagreement among other appellate courts over how to properly apply the Bruen test to non-violent felons, Bacharach reiterated that he would find the ban constitutional either way.
“Given the judicial disagreement over historical analogues for the federal ban, Bruen did not indisputably and pellucidly contradict or invalidate our precedent in McCane,” he wrote.
