Guns

Ever wonder if two decades-old DUIs can permanently cost someone the right to own a gun? Well, a Pennsylvania man who was convicted of two DUIs over 20 years ago and still can't own a firearm. Third Circuit (en banc): Wonder no more. Disarming him is unconstitutional. Concurrence: For this guy, sure, but in the future the gov't has set up an administrative process that'll let us get out of ruling on these. Dissent: Cars, like guns, are dangerous.

Sitting en banc, the Ninth Circuit rejected an as applied Second Amendment challenge to an often-charged federal law that prohibits convicted felons from possessing firearms under 18 U.S.C. § 922(g)(1). SeeUnited States v. Duarte, No. 22-50048 (9th Cir. May 9, 2025). The majority opinion and three additional opinions runs 127 pages, so get caffeinated.

Judge Wardlaw’s opinion for the en banc majority summarizes the lower-court law on this issue:

The Supreme Court will take up yet another dispute involving the oft-litigated Armed Career Criminal Act, this time in relation to frequently changing federal drug laws.

The law at issue in the pair of cases granted Monday imposes a mandatory 15-year minimum for certain firearms offenses in which a defendant previously has been convicted of “serious drug offenses.”

It's generally a crime to possess a machinegun. If you affix a "bump stock" to a semiautomatic rifle, it functions essentially like a machinegun. So, do you now have a "machinegun"? ATF: yes. District court: yes. Sixth Circuit (en banc) (2021): We are evenly split and cannot decide. What do you want us to do? Sixth Circuit (three-judge panel, 2023): Um, since our full court can't decide this, and a bunch of other judges are all over the place, and the same question is before us yet again, let's just go with the rule of lenity. Not a machinegun.

If you're charged with being a felon in possession of a firearm but you don't know you're a felon, are you really a felon in possession of a firearm? Fourth Circuit: Nope, not according to the Supreme Court. That means our friend the accused should get his day in court—oh, but he still has to show prejudice (or actual innocence) to win if he procedurally defaulted (even if the gov't forgot to bring up that little detail). Concurrence: Eh, mostly agree.

Civil rights lawyer Nancy Abudu has been confirmed to the US Court of Appeals for the Eleventh Circuit, where she will be the first Black woman to sit on the Atlanta-based court (view Senate press release).

Yesterday, in United States v. Duarte, No. 22-50048 (9th Cir. May 9, 2024), a split panel of the United States Court of Appeals for the Ninth Circuit held that  under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to Duarte, a non-violent offender who has served his time in prison and reentered society. The opinion, written by Judge Bea and joined by Judge VanDyke, begins:

Federal law bars individuals from possessing guns if they are “subject to a court order that restrains [them] from harassing, stalking, or threatening an intimate partner.” Fifth Circuit: This violates the Second Amendment as there is no deeply rooted tradition of disarming individuals under a restraining order for domestic abuse. “Through that lens, we conclude that (the law’s) ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted.”