Ninth Circuit: 18 U.S.C. § 922(g)(1) Violates 2nd Amendment

The following summary is of a recent Ninth Circuit ruling, United States v. Steven Duarte,  that we believe will either have a dramatic effect on many Second Amendment convictions and cases, or the ruling will be reversed and become moot.

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he or she has been convicted of an offense “punishable by imprisonment for a term exceeding one year.”

On the night of March 20, 2020, two Inglewood Police Officers spotted a red Infiniti drive past them with tinted front windows.  The officers turned around and trailed the car before seeing it run a stop sign.  When the officers activated the police car’s patrol lights, one of the officers saw the rear passenger (later identified as Mr. Duarte) roll down the window and toss out a handgun.  The Infiniti drove about a block more and stopped.

An officer found the discarded handgun, a .380 caliber Smith & Wesson, with its magazine missing.  Officers then found a loaded magazine in the Infiniti which fitted into the gun.

A federal grand jury indicted Mr. Duarte for possessing a firearm while knowing he had been previously convicted of a crime punishable by a term exceeding one year (18 U.S.C. § 922(g)(1)).  The indictment referenced Mr. Duarte’s five prior, non-violent convictions in California: vandalism, felon in possession of a firearm, possession of a controlled substance and two convictions for evading a police officer.

Mr. Duarte took the case to trial and a jury found him guilty.  He then received a below-guidelines sentence of 51 months in federal prison.

Mr. Duarte then appealed his conviction under the Second Amendment, arguing that under the U.S. Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen (2022) 597 U.S. 1, 18 U.S.C. § 922(g)(1) violates the Second Amendment as applied to him.

The Ninth Circuit in Pasadena agreed.  The court explained that Bruen instructs all courts to assess all Second Amendment challenges through text and history.  The Ninth Circuit wrote: “If the Second Amendment’s plain text protects the person, his arm, and his proposed course of conduct, then it becomes the Government’s burden to prove that the challenged law is consistent with this Nation’s historical tradition of firearm regulation.”

Applying this to Mr. Duarte’s case, the Ninth Circuit stated, “we easily conclude that Duarte’s weapon, a handgun, is an ‘arm’ within the meaning of the Second Amendment’s text and that Duarte’s ‘proposed course of conduct’ – carrying [a] handgun publicly for self-defense – falls  within the Second Amendment’s plain language, two points the Government never disputes.” Bruen, supra, 597 U.S. at 32.

The Government then argued that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous citizenry.”  The Ninth Circuit responded, “We do not share that view.  Bruen and Heller [District of Columbia v. Heller (2008) 554 U.S. 570, 581] foreclose that argument because both recognized that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to ‘all Americans,” not an “unspecified subset.”  Bruen, supra, 597 U.S. at 70 (quoting Heller, supra, 554 U.S. at 581).  The Ninth Circuit then noted that Mr. Duarte was an American citizen, whom the Second Amendment protects.

Then the Ninth Circuit moved onto “Bruen’s second step” and concluded that the Government “failed to prove that 922(g)(1)’s categorical prohibition, as applied to Duarte, ‘is part of the historical tradition that delimits the outer boundaries of the Second Amendment right.’”  Bruen, 597 U.S. at 19.  The Ninth Circuit explained, “The Government put forward no ‘well-established and representative historical analogue’ that imposed a comparable burden on the ‘right of armed self-defense’ that was ‘comparably justified’ as compared to 922(g)(1)’s sweeping no-exception lifelong ban.”  Id., at 29, 30.

The Ninth Circuit then explained, stating that, when the Second Amendment was passed in 1791, there were conditions barring some people from possessing a firearm (those who were insane, for example), but there was nothing then barring someone from possessing a firearm based on a conviction for vandalism, or evading arrest, or possessing a controlled substance.  The Ninth Circuit then stated, “[b]ased on his record, we cannot say that Duarte’s predicate offenses were, by Founding-era standards, of a nature serious enough to justify permanently depriving him or his fundamental Second Amendment rights.”  Therefore, the Ninth Circuit concluded, 922(g)(1) must be unconstitutional and invalid. 

The Ninth Circuit also rejected the Government’s position that the pre-Bruen decision in United States v. Vongxay (9th Cir. 2010) 594 F. 3d 111 foreclosed Mr. Duarte’s Second Amendment challenge.  Vongxay found that 922(g)(1) comported with the Second Amendment, but Bruen clearly overruled this.  The Ninth Circuit commented that Vongxay would not control because its holding and reasoning was “clearly irreconcilable” with Bruen.  Moreover, we would note, the U.S. Supreme Court is a “higher” court than the Ninth Circuit, so a ruling from a higher court would be controlling over a lower court.

This ruling, the reader should note, could invalidate thousands of firearm-related convictions in the Ninth Circuit, which includes California, Arizona, Nevada, Idaho, Montana, Alaska, Washington, Oregon, Hawaii, Guam and the Northern Mariana Islands.

We regard the reasoning in Duarte as excellent for defendants and believe the broad lifetime ban on firearms, even for some violent criminals, is unreasonable, particularly once the individual is discharged from probation or parole.  We think an individualized finding of dangerousness would be far more accurate and fair.  Lastly, we caution the reader that this ruling is likely to be challenged and may be overruled soon.

A newspaper article described this opinion as likely to cause the U.S. Attorney’s office to seek an en banc review, which could reverse the ruling.