The Third and Eighth Circuits have divided on the question whether some convicted felons have a constitutional right to bear arms. And the Supreme Court’s pronouncements on the issue are contradictory.
The Circuit Split
Justice Samuel Alito noted in 2019 that the federal statute barring felons from possessing firearms “probably does more to combat gun violence than any other federal law.” But the full U.S. Court of Appeals for the Third Circuit (15 judges) recently held this statute unconstitutional as applied to a person who pleaded guilty to making a false statement to obtain food stamps almost 30 years ago. Four days before this decision, the Eighth Circuit (a three-judge panel) upheld the statute as applied to all offenders.
The Eighth Circuit ruling was unanimous. In the Third Circuit:
- three members of the majority said they’d allow legislatures to disarm people who, unlike the food-stamp offender, “would, if armed, pose a threat to the orderly functioning of society”;
- dissenters accused the remaining eight judges in the majority of issuing an opinion that “is not cabined in any way and, in fact, rejects all historical support for disarming any felon,” but these judges said they’d decided only the case before them; and
- four judges dissented.
Some prisoners convicted of violating the felon-in-possession statute in the states of the Third Circuit are now being punished for exercising a constitutional right and are entitled to their freedom. The court hasn’t yet indicated which ones. But the Constitution won’t help prisoners convicted of violating the statute in the states of the Eighth Circuit. The Supreme Court is likely to address the issue during its next Term.
The Supreme Court’s Dictum
So far, the Supreme Court’s statements have made a mess of things. In 2008, the Court revived the long moribund Second Amendment, holding by a vote of 5-to-4 in District of Columbia v. Heller that people have a right to keep handguns in their homes for purposes of self-defense. The Court’s opinion by Justice Antonin Scalia declared: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” A retired Justice later reported that Justice Scalia included this declaration at the insistence of Justice Anthony Kennedy, without whose vote the case would have been decided differently.
In 2010, when the Court invalidated Chicago’s handgun ban in McDonald v. City of Chicago, the principal opinion by Justice Alito reiterated Heller’s assurance. But before Amy Coney Barrett joined the Supreme Court, as a Seventh Circuit judge, she maintained in dissent that the Second Amendment prohibited punishing a nonviolent felon for possessing a firearm. Barrett quoted an earlier decision that described Heller’s declaration as a “passing reference.” A judge who struck down a federal statute barring someone under indictment from receiving a handgun called Heller’s assurance “dicta . . . [o]r, as Francis Bacon put it, . . . ‘only the ‘vapours and fumes of the law.’” According to the Supreme Court, dicta (judicial asides) “may be followed if sufficiently persuasive . . . but are not controlling.”
The Court Apparently Scraps its Dictum
Heller’s statement about the endurance of felon-in-possession laws was consistent with the Court’s ruling in that case and McDonald, but it seems flatly inconsistent with last year’s decision in New York State Pistol & Rifle Association v. Bruen. Bruen held invalid a New York statute that allowed someone to carry a handgun in public for purposes of self-defense only if she could show a special need for self-protection. Rejecting a standard approved by eleven federal courts of appeal because this standard permitted “judge-empowering interest-balancing,” Justice Clarence Thomas’s opinion for the Court announced: “When the Second Amendment’s plain text covers an individual’s conduct, . . . [t]he government must . . . justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” The government could satisfy this burden only by showing a sufficient number of analogous historical regulations, and the Court said that legislation enacted after 1900 was too recent to count. After reviewing dozens of English and American firearms restrictions between 1285 and 1901, the Court ruled that too few of them sufficiently resembled the New York statute to save it.
Although Heller called the laws prohibiting firearm possession by felons “longstanding,” these laws were all 20th-century innovations. They were less “longstanding” than the statute held invalid in Bruen. Many thousands of Americans were flogged, branded, or imprisoned for serious crimes between 1607 and 1901, and, once they’d been punished, they were allowed to possess and use firearms. State and federal felon-in-possession laws seem to fail the Bruen test more clearly than the statute struck down in Bruen, for no historic analogs appear close enough to make the finals—that is, to be acknowledged as “distinctly similar” and then dismissed as “outliers.”
Three Justices Say the Dictum Survives
Despite the tension between Heller’s dictum and Bruen’s holding, a concurring opinion in Bruen by Justice Brett Kavanaugh joined by Chief Justice John Roberts repeated the dictum verbatim. These justices insisted that Bruen, like Heller, did not so much as “call into question” the felon-in-possession laws. Justice Alito’s concurring opinion similarly declared that Bruen had not “disturbed anything we said in Heller.” Justices Kavanaugh and Alito didn’t offer a glance toward history and didn’t explain how their statements could be reconciled with the Court’s holding. Their pronouncements were especially curious because Justice Stephen Breyer’s dissenting opinion in Bruen made a point of the “disconnect.” The concurring Justices seem not to have realized the implications of the standard they approved. More than any other decision in Supreme Court history, Bruen poses the question whether the Court will follow its holding or its dicta. And the likely answer is dicta. Whatever the Court may conclude about nonviolent offenders, it probably won’t decide that hired assassins have a constitutional right to bear arms.
The Lower Courts Struggle
Until the Third Circuit decision, no federal court had held the felon-in-possession statute unconstitutional even in part, and, after Bruen, more than two dozen federal district courts rejected challenges to this statute. They did so even as other firearms restrictions fell like mobsters on St. Valentine’s Day. Some courts did no more than rely on Heller’s dictum as reiterated by Justices Kavanaugh and Alito. They said things like: “We cannot simply override a legal pronouncement endorsed by a majority of the Supreme Court, particularly when the supposed dicta is recent.” These courts effectively gave the Court a power the Constitution hadn’t given it and the Court itself hadn’t claimed—the power to make law by issuing unexplained pronouncements on issues not presented.
Other courts attempted to reconcile the Court’s dictum with its holding. Some maintained that felons are not among “the people” included in the Second Amendment’s guarantee of “the right of the people to keep and bear Arms.” According to these courts, Bruen described the holders of Second Amendment rights as ordinary law-abiding citizens “no fewer than fourteen times.”
But that isn’t what happened. In seeking Supreme Court review, the party challenging the New York statute described the “question presented” as “whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home.” The Court then held that everyone within the class it considered—ordinary law-abiding citizens—had a right to carry weapons in public. By referring to these people, the Court didn’t make a sly, unexplained ruling that Second Amendment protects no one else. Lower courts treated a phrase chosen for the purpose of setting aside an issue as though it resolved the issue. And Heller had said that the term “the people” warrants “a strong presumption that the Second Amendment right belongs to all Americans.”
Many of the courts that upheld the felon-in-possession statute claimed that all government-ordered disarmaments throughout English and American history were analogous to this statute. Although 17th, 18th, and 19th-century governments didn’t forbid firearm possession by felons, they did disarm other people, including Catholics (not only in England but also in Maryland, Virginia, and Pennsylvania), people who refused to swear loyalty to their states during the American Revolution, Native Americans, and Black people, both enslaved and free. Courts now apologize for their reliance on this disgraceful history, but they rely on it anyway. They say it demonstrates a “tradition of categorical, status-based disarmaments.”
Judges who propose to strike down the felon-in-possession statute as applied to food-stamp cheaters but not as applied to violent offenders say that our tradition is one of disarming only people who “would, if armed, pose a threat to the orderly functioning of society.” Judges who’d uphold the statute across the board say that our tradition is one of disarming groups legislatures saw as “unwilling to obey the law” or as lacking “civic virtue.” The Anglo-American tradition in fact may have been one of disarming whomever the authorities pleased.
But Bruen itself didn’t look to the past to find general rules, principles, or understandings. It declared, “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them,” and it probed the past to discover whether a challenged modern regulation was one “our ancestors would have accepted.” (Scholars call this mode of analysis “expected-application originalism.”) Overlooking the distinction between declining to act and lacking the power to do so, the Court imagined (strangely) that early legislatures revealed the scope of the Second Amendment whenever they left firearm possession or use unregulated. The Court’s principle was: If legislatures didn’t do it (or something that looks like it) back then, they can’t do it now. The Court observed that early legislatures could have addressed the problem of “handgun violence, primarily in urban areas” by prohibiting the public carry of handguns, but they chose not to. The Bruen standard therefore rendered all prohibitions of public carry unconstitutional.
Analyzing the felon-in-possession statute in the same way the Court analyzed the statute it struck down in Bruen would render this statute invalid in its entirety. We can be confident that this statute is “one our ancestors never would have accepted” because, even in their day, there were felons, and no one disarmed them. Declaring that Catholics and Black people are more nearly analogous to today’s felons than the felons our ancestors didn’t disarm shows how determined many lower courts have been to adhere to Heller’s dictum and sustain the statute.
Some courts have advanced even more dubious arguments in their efforts to preserve legislation that, despite its incompatibility with Bruen, almost everyone wants to preserve (including not only Justices Kavanaugh, Roberts, and Alito but also the three justices who dissented in Bruen). Some found a historic analogy in the fact that poachers sometimes were required to forfeit the firearms they used to commit their crimes. After surrendering these weapons, however, the poachers could go home to pick up others. They weren’t disarmed. And other courts noted that some felons were executed. A Third Circuit dissenter declared: “A fortiori, . . . the Founding generation would have had no objection to imposing on felons the comparatively lenient penalty of disarmament.” Perhaps the comparatively lenient penalties of sterilization and compulsory church attendance are now permissible as well.
Fast Forward to June 2024
A year from now, as the October 2023 Term of the Supreme Court draws to an end, the Court may have concluded that convicted bank robbers have a constitutional right to bear arms. But it’s much more likely the Court will have embraced one or more of the dubious historical claims lower courts have used to uphold the felon-in-possession statute in whole or in part. The Court will continue to insist that it’s renounced all power to judge the reasonableness of results and considers only text, history, and tradition, but no one will be fooled. As a result of Bruen, the Court’s interest balancing will have moved from above the table to below it.
Although six Justices joined the majority opinion in Bruen, one commentator who noticed the Kavanaugh-Roberts-Alito dicta has written: “I do not think five justices agree with Bruen.” On some occasions in Supreme Court history, conscientious Justices have come to regret their decisions and acted to correct them. A forthright retreat would be preferable to the disingenuous use of history that Bruen has generated in felon-in-possession cases so far.