WASHINGTON – The Supreme Court has said a lot recently about what the Second Amendment means. The next question for the justices may be: Who does it not apply to?
A series of criminal cases percolating in lower federal courts are striking at a question about when the government may deny someone – such as a person convicted of a nonviolent felony – access to a gun. Experts on both sides of the gun debate say the question is likely to make its way to the Supreme Court soon.
A Philadelphia appeals court is hearing one such case Wednesday as the nation grapples with the latest mass shooting that killed three Michigan State University students.
What’s at stake for the gun debate?
- A landmark Supreme Court ruling last year set a higher standard for gun regulations. To pass constitutional muster, the court said, a prohibition must be consistent with the nation’s “historical tradition of firearm regulation.” Some criminal defendants are relying on the decision to challenge the prosecution of gun crimes.
- Some lower courts are now tossing gun laws that don’t have historical roots. Some of the cases will likely wind up at the Supreme Court.
Protective orders and gun ownership
Zackey Rahimi was involved in five shootings around Arlington, Texas, from late 2020 to early 2021. Police identified him as a suspect in those shootings, obtained a warrant to search his home and found a rifle and a pistol.
Authorities also learned Rahimi was the subject of a protective order following an alleged assault of his ex-girlfriend – an order that explicitly prohibited him from possessing a firearm. A grand jury indicted Rahimi for possessing a firearm while under a domestic violence restraining order in violation of federal law.
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A federal appeals court in Louisiana this month ruled that law unconstitutional – and it tossed Rahimi’s conviction. The decision from the three-judge panel – all of whom were nominated by Republican presidents – said the law was a historical “outlier that our ancestors would never have accepted.”
The Biden administration said it would “seek further review” of the decision.
What do advocates say?
“It’s not straightforward, based on the text of the Second Amendment, who is and isn’t part of the people who are covered,” said Esther Sanchez-Gomez, litigation director at Giffords Law Center, which advocates for stronger gun laws. But, she said, courts have found “for a long time” that people “who are considered dangerous may not hold Second Amendment rights categorically.”
What that means, Sanchez-Gomez said, is that the historical approach the high court adopted in its gun case last year jibes with laws that bar some from owning guns.
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Alan Gottlieb, founder of the Second Amendment Foundation, agreed that the Supreme Court hasn’t directly addressed the question and described the case law surrounding the question as fluid. From Gottlieb’s perspective, the government shouldn’t be able to deny an American access to a gun just because they might smoke marijuana – now legal in many states – or once committed a nonviolent crime.
“Eventually,” he said, “a case like this is probably going to work its way up to the Supreme Court.”
Associate Justice Brett Kavanaugh in a concurring opinion joined by Chief Justice John Roberts in the gun case last year, stressed the court’s decision should not be read to cast doubt on prohibitions on the “possession of firearms by felons and the mentally ill.” But others have countered it may be hard to square the court’s history-based standard with some of those laws. The court’s 6-3 majority opinion in the case doesn’t directly deal with the issues raised in Kavanaugh’s concurrence.
Nonviolent gun-owning felons
Nearly three decades ago, Bryan Range pleaded guilty to making false statements about his income to obtain $2,458 of food stamp assistance, court records show. Range was sentenced to probation and ordered to pay back the money along with a $100 fine.
Because the crime was a “felony-equivalent” – a state misdemeanor punishable by more than two years imprisonment – Range is barred by federal law from possessing a gun. That law has already been the subject of several appeals to the Supreme Court, which has so far declined to take the issue up.
A three-judge panel of a federal appeals court in Philadelphia – including two judges named by Democrats and one nominated by a Republican – ruled unanimously last year that Range’s “conviction places him outside the class of people traditionally entitled to Second Amendment rights.” The full appeals court will hear the case Wednesday.
Guns for marijuana users?
Jared Michael Harrison was pulled over in Oklahoma last year for running a red light. When he rolled down his window the police smelled marijuana, according to court records. A search of Harrison’s car turned up both pot and a loaded revolver. Harrison was charged under a federal law that makes it a crime to possess a gun while also being an “unlawful user” of a “controlled substance,” which includes marijuana.
But a federal court in Oklahoma tossed Harrison’s indictment this month, ruling that the law violates the Second Amendment in light of the Supreme Court’s decision last year. There is “little existing historical evidence” to back up the idea that people can be deprived of guns absent evidence that they are violent, wrote U.S. District Judge Patrick Wyrick, who was nominated to the bench by former President Donald Trump.
“Harrison may well have such a proclivity,” Wyrick wrote, “but the mere fact that he uses marijuana does not tell us that.”
If the case is appealed, it’s not clear how much appetite the Supreme Court has for the issue: It passed on a similar question raised by a Missouri man last year.