BOSTON (CN) — The First Circuit during oral arguments Monday seemed inclined to uphold a federal law prohibiting nonviolent felons from possessing guns, despite the Supreme Court’s landmark Bruen case two years ago that greatly expanded gun rights under the Second Amendment.
But the issue is likely to come up again. Since the defendant in this case didn’t challenge the law at his trial, the court can strike it down on appeal only if there was “plain error,” meaning that the law is not only unconstitutional but “obviously” so. And while the judges seemed to think that the law might violate the Second Amendment, they didn’t seem to think that this was obvious.
The judges repeatedly noted that when the Supreme Court last week upheld a law banning gun possession by people subject to a domestic violence restraining order, the 8-1 majority commented that felon-in-possession laws are “presumptively lawful.”
The defendant’s lawyer on appeal, Robert Herrick, argued that the Supreme Court was talking only about felons who had committed violent crimes.
“There’s a vast universe of felonies that have no element of violence, no element of physical danger or threatening physical danger,” he said. “The conviction of former President Trump would not satisfy” the test in last week’s Supreme Court decision, he added. “No way.”
Herrick’s client, Carl Langston, had prior felony convictions for drug dealing and theft when he was arrested during a scuffle outside a bar in Portland, Maine. Police found a .45 pistol and a magazine in his pockets. He was indicted for being a felon in possession in October 2021 and sentenced to 57 months in prison.
In 2022, the Supreme Court’s Bruen decision changed the rules for interpreting the Second Amendment, holding that weapons restrictions are constitutional only if they’re “consistent with this Nation’s historical tradition of firearm regulation” going back to the time of the Founding Fathers.
Herrick argued that there’s no such tradition for federal felon-in-possession laws, since they only go back to the 1930s and then only for violent offenses — not for nonviolent crimes such as theft and drug dealing.
There’s “no adequate historical analogue,” Herrick said. “Bruen created a hoop that the government has to jump through, and that hoop is relatively narrow.”
But U.S. Circuit Judge Julie Rikelman questioned whether it could ever be obvious that a gun law lacked a historical analogue, “given the extremely detailed historical analysis that’s required” under Bruen and “given the historical experts that have to be introduced to figure this out.”
The government’s lawyer, Benjamin Block, jumped at the suggestion.
“It’s an impossible task to determine this on plain-error review,” he said. “The historical analysis is so detailed and so arcane. It could only be plain error if there’s a uniformity of opinion in other circuits, which is certainly not the case here.”
Other circuits are split. The Eighth Circuit said Bruen doesn’t apply to felon-in-possession laws, but the Ninth Circuit said it does. The Third Circuit cited Bruen in holding that a man convicted of food-stamp fraud can still buy a gun, but a different Third Circuit panel suggested that it might reach a different result in a case involving receiving a stolen weapon.
U.S. Circuit Judge Sandra Lynch, a Clinton appointee, seemed to critique Block for not making an even stronger point.
“I thought your argument would be that, given the Supreme Court’s comments about presumption, we can rely on that and it doesn’t much matter what other circuits have held,” she said, as though correcting a student.
Rikelman, a Biden appointee who argued for the abortion clinic in the Supreme Court’s Dobbs case, asked if any court had ever struck down a felon-in-possession law on plain-error review.
“No,” Block answered.
Herrick said the Supreme Court’s comment that felon-in-possession laws are presumptively lawful was a stray comment, not a holding, and shouldn’t be taken at “face value.” He said the court should view the law at issue here through the larger lens of “a 20-year project underway to re-center the Second Amendment in terms of our constitutional universe.”
But the all-female, all-Democratic-appointed panel appeared to have little interest in re-centering the constitutional universe. Rikelman asked Herrick a number of questions about unrelated evidentiary and sentencing issues that would be irrelevant if the court were planning to strike down the statute.
Lynch repeatedly noted that Langston actually did have violent felonies on his record but the government didn’t bother to include them in its indictment. “Why didn’t you do that in the first place?” she asked Block.
“It wasn’t required,” he answered.
“The government is aware of the Second Amendment controversy and it didn’t list the violent offenses in the indictment?” she asked incredulously, suggesting that the case had gotten this far only because the prosecution fumbled the ball.
“I don’t know why,” Block said. “That was back in 2008, so we’d have had to go back and get the old records.”
“That’s why I have an argument,” Herrick commented.
U.S. Circuit Judge Lara Montecalvo, another Biden appointee, rounded out the panel.
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