New York State Rifle & Pistol Ass’n, Inc. v. Bruen

In the landmark Supreme Court decision New York State Rifle & Pistol Ass’n, Inc. v. Bruen, The Court held that in order to find a gun regulation constitutionally permissible, courts must employ a two-step test. First, the court must inquire as to whether the plain text of the Second Amendment covers the conduct in question. If so, the Constitution presumptively protects that conduct. The Government must then rebut that presumption by showing the gun regulation is consistent with the Nation’s historical tradition of firearm regulation. This summer, the Third Circuit employed that analysis in deciding Range v. Att’y Gen. of the United States, where the court dismissed as unconstitutional an indictment charging the defendant with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

District courts within the Third Circuit and around the country are following the Third Circuit’s lead. This summer, the Middle District of Pennsylvania dismissed two 18 U.S.C. § 922(g)(1) indictments against two individuals as unconstitutional as applied to them. See, United States v. Harper, 21-CR-0236 (M.D. Pa. Sept. 1, 2023); United States v. Quailes, 21-CR-0176 (M.D. Pa. Aug. 22, 2023). In Quailes, the district court employed the legal analysis announced in Range to dismiss a 922(g)(1) indictment against an individual with previous convictions for drug offenses, as the plain text of the Second Amendment protects Quailes right to own a firearm, and the Government could not point to an analogous regulation that existed at the time of our Nation’s founding that stripped those previously convicted of drug offenses of their right to bear arms.  The Harper court went even farther, dismissing a 922(g)(1) indictment against an individual with a prior violent robbery conviction.

Courts outside of the Third Circuit are following this trend. The Northern District of Illinois has dismissed at least four 922(g)(1) indictments over the past few months. See United States v. Freeman, 23-cr-158 (N.D. Ill. Nov. 7, 2023) (suggesting that 922(g)(1) is unconstitutional not only as applied to certain defendants, but on its face); United States v. Daneil, 20-cr-002 (N.D. Ill. Nov. 7, 2023) (dismissing a 922(g)(1) indictment against an individual with previous convictions for possession and delivery of controlled substances); United States v. Salme-Negrete, 22-cr-637 (N.D. Ill. Nov. 7, 2023) (dismissing a 922(g)(1) indictment against an individual with previous convictions for robbery, aggravated battery/use of a deadly weapon, and aggravated unlawful use of a weapon); United States v. Prince, 22-cr-240 (N.D. Ill. Nov. 2, 2023) (dismissing a 922(g)(1) indictment and rejecting that historical analysis required a distinction between violent and nonviolent felonies). Indeed, In United States v. Bullock, the district court in the Southern District of Mississippi employed the Bruen analysis and dismissed a 922(g)(1) indictment against an individual with a previous manslaughter conviction. United States v. Bullock, 18-cr-165-CWR-FKB, (S.D. Miss. Jun. 28, 2023).

This new trend represents a marked shift in doctrine governing the intersection of Second Amendment rights and rights of convicted felons.  However, this trend is not without criticism.  The Eighth Circuit has specifically rejected the legal principles expounded in Range, declining to extend the Bruen ruling that far. See United States v. Jackson, 69 F.4th 495 (8th Cir. 2023). The United States Government has petitioned the Supreme Court for Certiorari in Range, so we may get a more definitive ruling to resolve this evolving circuit split in the near future.

While we may not have a cohesive rule of law on the felon in possession question until next term, there may be more limiting rules emerging from recent litigation. Last week, the United States Supreme Court heard oral argument in United States v. Rahimi, a case that could serve to cabin the historical analysis approach. The defendant in Rahimi was charged under 18 U.S.C. § 922(g)(8), a federal law prohibiting gun ownership by individuals who have been the subject of domestic violence restraining orders. Rahimi, who was the subject of a domestic protection order for stalking an ex-girlfriend, went on a shooting rampage. The question on appeal to the Supreme Court is whether Rahimi and others like him should be subject to gun possession prohibitions. During oral argument, the Court’s line of questioning indicated that the court would be willing to affirm this prohibition against gun ownership as constitutionally permissible, even though Mr. Rahimi has no formal criminal record. If the court rules against Rahimi, a dangerousness element will be effectively added back into the Bruen historical analysis standard.

When under investigation it is important to follow the advice of your attorney and not speak about the alleged crimes over social media. LGR Law, LLC’s federal criminal defense attorneys have the essential skills to protect your legal rights. Should you or a loved one receive any indication that you are a target of a federal investigation, contact Lorraine Gauli-Rufo, and the attorneys at LGR Law immediately. (973) 239-4300,, [email protected]

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