Analysis: ACLU Goes to Bat for Non-Violent Felon Gun Rights [Member Exclusive]

The American Civil Liberties Union (ALCU) has an extended monitor document of supporting varied gun management legal guidelines regardless of its historically oppositional stance to authorities restrictions on constitutional rights. Nevertheless, the group has now discovered at the least one gun legislation it thinks violates the Second Modification.

On Tuesday, the ACLU and several other of its state chapters filed an amicus temporary with the Ninth Circuit Court docket of Appeals in United States v. Duarte. The temporary asks the en banc court docket to reaffirm a since-vacated panel ruling from Might that sided with defendant Steven Duarte and overturned his conviction for possessing a firearm after prior convictions for drug possession and vandalism. The group argued {that a} blanket lifetime ban on felons proudly owning weapons violates the Second Modification.

“The Supreme Court docket has held that, to override the Second Modification’s safety, the federal government should present that its regulation is per the historic ideas underpinning our founding-era custom of proscribing firearms,” the ACLU’s temporary reads. “As a result of the federal government has did not level to any such assist for completely disarming each particular person convicted of an offense punishable by a couple of yr, this Court docket ought to uphold Mr. Duarte’s as-applied problem to part 922(g)(1).”

The submitting stands out as one of many few occasions the ACLU has gone on document arguing that an present gun legislation is unconstitutional. It locations the progressive group alongside the Nationwide Rifle Affiliation, Firearms Coverage Coalition, and the libertarian-leaning Cato Institute in submitting briefs towards the federal non-violent felon gun ban.

The ACLU’s temporary took an expansive view of who counts amongst “the individuals” lined by the textual content of the Second Modification. It dismissed the Authorities’s place that solely “accountable, law-abiding residents” depend, calling it “excessive” and an argument foreclosed by the Court docket’s United States v. Rahimi choice.

“Because the Court docket held there, the Second Modification’s protections usually are not restricted to ‘accountable’ or ‘law-abiding’ residents,” the group wrote. “That interpretation is per how the phrase ‘the individuals’ is utilized in different Invoice of Rights provisions, none of which exclude individuals with felony convictions—a lot much less individuals deemed not ‘accountable, law-abiding residents.’”

The ACLU then turned to the historic document. It famous that the federal government is unable to determine “any founding-era legal guidelines [that] particularly prohibited individuals with felony convictions from possessing weapons—not to mention those that dedicated any offense, together with nonviolent and nondangerous offenses, punishable by a couple of yr in jail.”

“It as an alternative invokes two different classes of 18th-century legal guidelines: (1) legal guidelines authorizing capital punishment for individuals convicted of felonies; and (2) legal guidelines categorically disarming sure teams, together with Catholics, Black individuals, and Native People,” the group wrote.

The group cautioned The Court docket towards accepting the argument that as a result of practically all individuals convicted of felonies on the Founding might be punished with loss of life, they is also completely disarmed. It famous that far fewer crimes had been categorised as felonies in the course of the Founding. It additionally stated that the flexibility to execute convicted felons says nothing about what was permissible for many who weren’t executed and as an alternative returned to society.

“The precept the federal government attracts from these legal guidelines can’t be that, the place capital punishment is permitted, all different penalties— together with people who completely deny constitutional rights—are additionally permissible,” the ACLU wrote. “If it did, then nothing would cease the federal government from stripping an individual with felony convictions of, for instance, their proper to free speech, or some other constitutional rights. That’s clearly not the legislation.”

The ACLU chastised the federal government’s quotation of bigoted status-based bans on ethical and authorized grounds.

“As an preliminary matter, the plain invalidity of denying individuals rights based mostly on their race or faith ought to bar reliance on these examples altogether,” the group wrote. “Furthermore, the precept that the federal government seeks to attract from these legal guidelines—that Congress can impose generalized categorical prohibitions on possessing firearms—is at far too excessive a degree of generality to be acceptable.”

As a substitute, it famous that not one of the bigoted legal guidelines cited by the federal government had been everlasting or premised on prior convictions and that almost all supplied individuals topic to them a technique to regain their arms rights by completely different avenues. It contrasted the federal government’s reliance on such legal guidelines with the argument accepted by the Supreme Court docket in assist of the home violence restraining order gun ban in its June Rahimi choice.

“Rahimi positioned nice weight on the truth that 18 U.S.C. § 922(g)(8) ‘s prohibition is ‘non permanent’—in Mr. Rahimi’s case, it was simply ‘one to 2 years after his launch from jail’—and predicated on an individualized dedication that the particular person poses a selected risk to others,” the ACLU wrote. “The everlasting nature of part 922(g)(1) ‘s ban, unconnected to dangerousness, is thus additional motive to conclude that the statute, as utilized to Mr. Duarte, is inconsistent with historic ideas.”

Lastly, past the constitutional arguments surrounding the felony gun ban, the ACLU additionally drew consideration to extra sensible considerations. It famous that the statute “encompasses a very broad vary of predicate offenses” that seize non-violent crimes way more usually than violent ones. It cited court docket knowledge displaying solely 18.2 p.c of felony convictions in state courts and 4.2 p.c of federal felony convictions had been for violent offenses. In the meantime, the lifetime ban applies to all felons no matter violent standing, and it even extends to state misdemeanors punishable by greater than a yr in jail.

The group additionally emphasised the best way the prohibition has produced “racially disparate harms,” notably for black People.

“Practically 60 p.c of individuals convicted below part 922(g) in 2023 had been Black,” the group wrote. “Because of these convictions, ‘practically 1 / 4 of Black adults have been completely stripped of the appropriate to lawfully possess firearms.’”

In flip, the group argued these statistics assist gas “disparate legislation enforcement practices” like stop-and-frisk insurance policies by police departments seeking to crack down on unlawful gun possession.

“To make certain, these racial harms don’t bear immediately on the Second Modification evaluation at situation,” the ACLU concluded. “However they’re an vital reminder that ‘[t]he very objective of a Invoice of Rights was to withdraw sure topics from the vicissitudes of political controversy, to put them past the attain of majorities and officers.’”

General, the temporary reads prefer it may have come from any variety of gun-rights teams difficult the federal felony gun ban alongside public defender’s workplaces throughout the nation during the last couple of years. Unsurprisingly, it has already drawn plaudits from some gun-rights advocates. Alan Gottlieb of the Second Modification Basis referred to as it “a stunningly detailed amicus temporary” and stated it marked “a outstanding and refreshing method” by the group.

Whichever manner it goes, the Duarte case might not be the final phrase on firearms rights for non-violent felons. In any case, lawsuits towards the felony gun ban have been the most typical Second Modification problem for the reason that Supreme Court docket set a brand new commonplace for reviewing gun legal guidelines in 2022’s Bruen. Nevertheless, arguments backing Duarte may show extra persuasive coming from the ACLU in a progressive-leaning court docket just like the Ninth Circuit. If that court docket sides with the ACLU, it might additional deepen the prevailing federal circuit cut up over the felon-in-possession ban and provides the Supreme Court docket much more of a motive to take the problem up.

The Court docket has already been below immense stress from the Division of Justice and gun-rights activists alike to do exactly that. Whereas it opted to kick the can down the highway earlier this yr by granting, vacating, and remanding a lot of these requests, a number of have already been returned by their respective circuits with unchanged outcomes.

Provided that Duarte will quickly be yet another of these instances sitting on The Court docket’s doorstep and that the Court docket’s majority is already trending towards making “dangerousness” its commonplace for disarmament, it might not be shocking to see the ACLU’s arguments echoed in a Supreme Court docket majority opinion within the close to future.