Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional
As discussed in this post, a couple months ago, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), finding that the Supreme Court’s Bruen ruling renders unconstitutional federal law’s criminal prohibition on gun possession by nonviolent felons. Now, as set forth here, yesterday a “vote of a majority of nonrecused active judges … ordered that this case be reheard en banc.” Judge VanDyke issued a 12-page dissent from the grant of rehearing en banc that is worth a full read. Here is an excerpt:
Nothing in the Supreme Court’s recent Rahimi decision controls or even provides much new guidance for these [felon-in-possession] cases, which is undoubtedly why the federal government took the unusual step of asking the Court to review one or more of these pending cases immediately after Rahimi instead of following the Court’s usual practice of GVRing (granting, vacating, and remanding) related cases. It’s also why the original panel in this case, after careful consideration, saw no reason to modify our opinion after Rahimi came down. But the Supreme Court rejected the government’s request and kicked the can down the road, GVRing all the pending Section 922(g)(1) decisions and instructing the lower courts to take another look at them in light of Rahimi.
The Supreme Court’s docket this next term is no doubt full of important issues to decide, and this delay-the-inevitable approach to pressing Second Amendment questions would be just fine if the circuit courts were populated with judges committed to faithfully applying the considerable instruction already provided to us by the Court. But that is clearly not the case. In this circuit, you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court’s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court. The other 17/29ths of our bench is doing its best to avoid the Court’s guidance and subvert its approach to the Second Amendment. That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud….
Section 922(g)(1) applies to anyone “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). This applies to the many felons whose crime or conduct show they pose a “clear threat of physical violence to another.” Rahimi, 144 S. Ct. at 1901. But it equally applies to felons who have no history of or expected propensity towards violence, like Martha Stewart. When assessing the burden on the Second Amendment right imposed by the surety and affray laws, the Court in Rahimi found it key that the laws “involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon.” Id. at 1902. This tracks the view of scholars who have linked these historical laws to a principle of disarming those who pose a threat of physical violence to another. Here the government not only failed to show that Duarte “likely would threaten or had threatened another with a weapon.” Id. It conceded he has no history of violence. Duarte, 101 F.4th at 663 n.1.