<![CDATA[Tenth Circuit]]>

Tenth Circuit: Bruen test doesn’t apply to felon-in-possession laws

September 15, 2023 by Cam Edwards Leave a Comment

Over the past year we’ve seen plenty of federal judges distort the Supreme Court’s “history, text, and tradition” test determining the constitutionality of gun control laws to uphold anti-2A restrictions, but the Tenth Circuit Court of Appeals has taken a slightly different approach in a case known as Vincent v. Garland, in essence ruling that existing federal prohibitions on felons possessing firearms don’t need to pass that test because felon-in-possession laws are untouched by the Supreme Court’s Second Amendment jurisprudence.

Melynda Vincent was convicted of the non-violent felony offense of bank fraud after writing a bad check for almost $500 at a grocery store back in 2008. Though she was eligible for a prison sentence, a judge instead ordered Vincent to a term on probation, and over the past fifteen years she’s gone from being homeless and battling a drug addiction to serving as a social worker helping others to turn their own lives around. Vincent first sued to have rights restored in 2020, but the lawsuit was thrown out by the courts, so she refiled after the Bruen decision was handed down.

Her attorneys have argued that under the history, text, and tradition test laid out by the Supreme Court in Bruen, the modern law that imposes a lifetime ban on possessing firearms and ammunition is unconstitutional, but the Tenth Circuit panel ruled against Vincent on Friday, opining that the Supreme Court’s decisions (including Heller and McDonald as well as Bruen) don’t invalidate the Tenth Circuit’s precedent upholding the federal statute in question.

In Bruen itself, the Supreme Court didn’t address the ban on felons’ possession of firearms. The Court instead addressed the constitutionality of a New York licensing scheme for carrying a handgun in public. In addressing that licensing scheme, the Court articulated a historical test for the scope of the Second Amendment’s right to bear arms. For that test, the Court drew upon District of Columbia v. Heller, which had recognized a personal right to bear arms. In recognizing that right, the Supreme Court considered the text and historical origins of the Second Amendment. After this historical discussion, the Court noted that
• “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” and
• felon dispossession statutes are “presumptively lawful.”
… 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. If anything, Bruen contains two potential signs of support for these prohibitions.
First, six of the nine Justices pointed out that Bruen was not casting any doubt on this language in Heller.
Second, Bruen apparently approved the constitutionality of regulations requiring criminal background checks before applicants could get gun permits. In Bruen, the Court struck down state regulations that had required the showing of a special need before someone could get a license to carry a gun. But the Court added that it wasn’t questioning the constitutionality of “shall-issue” licensing regimes. These regimes don’t require a showing of special need, but they do “often require applicants to undergo a background check” to ensure that the applicant is a “law-abiding, responsible citizen[].”
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. Bruen’s language thus could support an inference that the Second Amendment doesn’t entitle felons to possess firearms.

The problem with this rationale is that while the Bruen language could support that inference, it would require exempting felon-in-possession statutes from the test that the Court explicitly stated should be used to determine the constitutionality of gun control laws; something the Supreme Court most certainly didn’t do. Yes, the justices were careful to decide Bruen fairly narrowly, but just because the case didn’t delve into the intricacies of felon-in-possession statutes doesn’t mean that SCOTUS was instructing lower courts to ignore their test when it came to who can be barred from owning a gun.

Certainly other appellate courts have come to very different conclusions than the one reached by the Tenth Circuit panel. The Third Circuit Court of Appeals, for instance, has ruled that the lifetime prohibition on gun ownership for those convicted of a non-violent offense punishable by more than a year in prison does violate the protections afforded by the Second Amendment. In Garland v. Range, an en banc panel of Third Circuit judges ruled in favor of Bryan Range, a Pennsylvania man who, like Vincent, was convicted of a non-violent offense; in this case falsifying income in order to receive food stamp benefits back in 1995.

The DOJ is likely to appeal the Range case to the Supreme Court, though its petitionisn’t due for another three weeks or so. In the meantime, Vincent can either request an en banc panel on the Tenth Circuit hear her appeal, or take her case directly to SCOTUS with a cert petition of her own. While I’m not a fan of Tenth Circuit’s decision here, the split in the appellate courts at least makes it more likely that the Supreme Court will agree to hear one of these cases when the time is ripe, and I don’t think Vincent should give up hope of having her Second Amendment rights rest just yet.

Federal appeals court keeps Colorado’s under-21 gun ban on ice

August 29, 2023 by Cam Edwards Leave a Comment

Second Amendment advocates won a big victory on Monday as the Tenth Circuit Court of Appeals ruled that Colorado’s law forbidding gun sales to adults under the age of 21 cannot be enforced while the measure is being challenged in court, rejecting an appeal by Gov. Jared Polis, who was seeking to enforce the prohibition.

Back on August 7th, just a day before the new law was set to take effect, a federal judge issued a preliminary injunction requested by Rocky Mountain Gun Owners, but Polis quickly appealed that decision.

In their brief two-page order, appellate judges Carolyn McHugh and Nancy Moritz (both Obama appointees, incidentally) concluded that the governor had “failed to show his entitlement to a stay” under the factors necessary. Those factors include Polis establishing that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

It’s unclear from today’s order if Polis was able to satisfy any of those requirements in the eyes of the Tenth Circuit, but in issuing the preliminary injunction U.S. District Court Judge Phillip Brimmer concluded that the plaintiffs were likely to succeed in their lawsuit, that the deprivation of their Second Amendment rights did indeed cause them to suffer irreparable harm, the balance of equities was tipped in their favor, and that the injunction served the public interest by keeping the Second Amendment rights of young adults intact. Specifically, Brimmer found the state’s evidence for a historical basis for the prohibition to be severely lacking. Colorado attorneys had pointed to several ordinances that Brimmer concluded were not analogous to the state’s complete prohibition on gun sales for under-21s, while the few statutes that did bar adults younger than 21 from keeping or bearing arms were passed long after the Second Amendment took effect.

Without any confirmation in the form of founding era regulations, the Court does not consider three pre-Civil War regulations as strong evidence of the “public understanding of the right to keep and bear arms” at the time the Second Amendment was ratified.
Finally, the Governor identifies post-Civil War regulations that some states adopted by the early 20th century. The Governor represents that, by 1900, 18 states and the District of Columbia adopted laws regulating firearm sales to those under the age of 21 and that shortly thereafter 45 states had laws restricting the sale of firearms to minors. The Individual Plaintiffs argue that, of the 17 post-Civil War laws the Governor identifies, one did not prohibit the purchase of firearms, one is from a state that “operated under a fundamental misunderstanding of the right to bear arms,” one was from a Western state that should be disregarded as overly restrictive under Bruen, and that seven other laws were adopted by States with no Second Amendment analogue. The Individual Plaintiffs argue that the remaining seven laws are not appropriate analogues to SB23-169 because they rely on a status, namely, legal minority, that does not apply to 18-to-20 year olds today.
The Governor argues that the regulations he identifies burden the right to selfdefense in a similar way to SB23-169 in that they burden persons under a certain age from accessing weapons, mostly by limiting their ability to purchase weapons. Additionally, the Governor argues that the regulations were in place for the same reason that SB23-169 was passed, to protect public safety, despite the fact that such laws would burden the right to self-defense.
Bruen stated that the Court has “made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.” While it remains an open question as to how a court should weigh historical understandings of the Second Amendment at the time that the Fourteenth Amendment was adopted, because the Governor fails to point to any evidence during the founding era that a total prohibition on the sale of firearms to minors was consistent with the right to bear arms, the Court gives little weight to evidence from the time of the Fourteenth Amendment’s ratification to limit the scope of the right to keep and bear arms. The Court finds that the Governor has failed to meet his burden to demonstrate that SB23-169 is consistent with the Nation’s historical tradition of firearms regulation. For the purpose of obtaining a preliminary injunction, the Individual Plaintiffs have demonstrated a likelihood of success on the merits.

And now the Tenth Circuit agrees. The next step for Polis would be to take his emergency appeal to the Supreme Court and ask them to reinstate the ban, but I’d say there’s next to no chance of that happening. SCOTUS declined to intervene in granting an emergency injunction against New York’s post-Bruen carry restrictions and Illinois’ ban on so-called assault weapons and large capacity magazines, and even if I have my concerns about Chief Justice Roberts getting squishy on the Second Amendment, the Court is most likely going to do the same now that it’s anti-gunners asking for relief.

Today’s decision doesn’t guarantee that Colorado’s ban on gun sales to young adults will remain unenforced forevermore, but it’s a significant step in that direction, and congratulations are in order to RMGO and the individual plaintiffs in the case who are suing to regain the rights stripped from them by Colorado lawmakers and Polis himself.