Determining whether a person has a constitutional right to carry a firearm is a two-step test. First, are they protected under the plain reading of the second amendment, which gives U.S. citizens the right to bear arms (including firearms). If the Defendant is protected under the second amendment, then possessing a firearm is presumed to be constitutionally protected. We then move to the second step to determine if there is a historic tradition prohibiting the person from possessing a firearm.
PROTECTED PEOPLE & HISTORIC TRADITIONS
In N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. CT. 2111 (2022), the Supreme Court adopted a two-step test for assessing the constitutionality of a firearm restriction. 142 S. Ct. at 2126. The first step requires a determination of whether the Second Amendment’s plain text covers an individual’s conduct. Id. If the plain text covers and protects such conduct, the Constitution presumptively covers such conduct. Id. When the plain text protects the conduct, the firearm restriction can only stand if the Government demonstrates “that the regulation is consistent with the Nation’s historical tradition of firearm regulation.” Id.
As part of “the people,” the Defendant has the right to keep and bear arms. Bruen reaffirmed that self-defense is “the central component of the [Second Amendment] right itself.” Bruen, 142 S. Ct. at 2135 (citing Heller, 554 U.S. at 2783 and McDonald, 561 U.S. at 767). The core purpose of the Second Amendment is to allow defendants to defend themselves in their homes, as affirmed by Heller, McDonald, and Bruen. Therefore, charging the Defendant with possession of a firearm by a convicted felony is unconstitutional as it conflicts with the Second Amendment's unequivocal mandate. Because the Defendant’s conduct is presumptively protected by the Second Amendment, the burden now shifts to the Government to demonstrate that the firearm restriction is “consistent with the Nation’s historical tradition of firearm regulation.” See Bruen, 142 S. Ct. at 2126.
In Bruen the Supreme Court established a framework for assessing the constitutionality of firearm regulations. It mandates that any firearm regulation is “presumptively” unconstitutional unless the Government can “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2129-30. The Court further held that a firearm regulation is consistent with American tradition only if analogous regulations were widespread and commonly accepted in the founding era, when the Second Amendment was adopted. Id. at 2137.
The absence of historical regulations renders the charge, possession of a firearm by a convicted felon, unconstitutional as applied to United States citizens.
PHYSICAL VIOLENCE EXCEPTION DOES NOT APPLY
United States v. Duarte, 108 F.4th 786 (9th Cir. 2024)
The Supreme Court analyzed these laws and extracted the principle that "[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed." Rahimi, 144 S. Ct. at 1901. Because "Section 922(g)(8) restricts gun use to mitigate demonstrated threats of physical violence, just as the surety and going armed laws do," the Court found it to fit within that regulatory tradition. Id. (emphasis added). But unlike Section 922(g)(8), the burden on Duarte's Second Amendment right imposed by Section 922(g)(1) is not relevantly similar to the historical surety or affray laws, as 922(g)(1) applies universally to anyone with the status of "felon" instead of those who have more specifically posed a "demonstrated threat[] of physical violence." Id. (emphasis added).
Section 922(g)(1) applies to anyone "who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). This applies to the many felons whose crime or conduct show they pose a "clear threat of physical violence to another." Rahimi, 144 S. Ct. at 1901. But it equally applies to felons who have no history of or expected propensity towards violence, like Martha Stewart. When assessing the burden on the Second Amendment right imposed by the surety and affray laws, the Court in Rahimi found it key that the laws "involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon." Id. at 1902. This tracks the view of scholars who have linked these historical laws to a principle of disarming those who pose a threat of physical violence to another. Here the government not only failed to show that Duarte "likely would threaten or had threatened another with a weapon." Id. It conceded he has no history of violence. Duarte, 101 F.4th at 663 n.1.
