Stephen Halbrook | 5.20.2024 11:05 PM

The Ninth Circuit, in U.S. v. Duarte, has joined the Third Circuit's Range decision in holding the Gun Control Act's ban on firearm possession by felons (18 U.S.C. § 922(g)(1)) in violation of the Second Amendment as applied to convictions for non-violent offenses that have no Founding-era analogues. Prof. Volokh summarized the decision when it was released on May 9. The court's opinion is extraordinarily thorough and deserves a deeper dive.

The opinion was written by Senior Judge Carlos Bea and joined by Judge Lawrence VanDyke. Judge Milan D. Smith, Jr., dissented and expressed hope for an en banc rehearing, which is all but automatic when a Ninth Circuit panel renders a decision favorable to the Second Amendment. The decision will undoubtedly be considered by the Supreme Court Justices in deciding Rahimi, which involves the ban on gun possession by a person subject to a domestic violence restraining order, and in disposing of Range, another felon case which may be taken up by the Court or remanded for reconsideration in light of Rahimi.

At the textual level, Durate states, the right to bear arms is guaranteed to "the people," which per Bruen refers to "all Americans," not an "unspecified subset." While Heller stated that the Amendment protects "the right of law-abiding, responsible citizens to use arms" for self-defense, the universe of "the people" is larger. (I suggest thinking of the two-circle Venn diagram – law-abiding citizens are the subset and they are within the larger superset of "the people.")

While Heller referred to "longstanding prohibitions on the possession of firearms by felons" as among the "presumptively lawful regulatory measures," Bruen expressly requires courts to assess whether a restriction "is consistent with this........

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