Major 2A Groups Join Team Up to Urge SCOTUS Action on Lifetime Gun Bans for Non-Violent Offenders

The Supreme Court already has almost a half-dozen cases dealing with gun bans for “unlawful” users of drugs that it was scheduled to consider in conference today, but there are several other cases that directly implicate other “prohibited persons” that will soon get the court’s attention. One of them is Zherka v. Bondi, and today the National Rifle Association, Second Amendment Foundation, Firearms Policy Coalition, and FPC Action Foundation teamed up on an amicus brief urging the Court to accept the case and address the question of “whether the Second Amendment permits the government to disarm an American citizen because he has been convicted of a non-violent fraud offense.”

In their brief, the groups contend that 18 U.S.C. §922(g)(1) fails the “text, history, and tradition” test laid out by the Supreme Court. There is no national tradition of prohibiting individuals convicted of non-violent offenses like making a false statement to a bank and or filing a false federal income tax return to automatically forfeit their right to keep and bear arms. 

The Court has… made clear that all firearm regulations must be justified by historical tradition, including the regulations that Heller deemed “presumptively lawful.” Yet some courts—including the Second Circuit below—forbid any as-applied challenges to prohibitions for felons, “regardless of whether the crime of conviction is nonviolent.” But an analysis of our nation’s historical tradition of firearm regulation shows that there is no tradition that supports disarming peaceable citizens, and the historical justification this Court relied on to declare felon bans “presumptively lawful” must have been the tradition of disarming dangerous persons.

As the amici note, several appellate courts have already reached that conclusion, but others have simply pointed to the Court’s statement about “presumptively lawful” statutes and upheld the laws in question without conducting any sort of historical analysis whatsoever. A law may be “presumed” to be constitutional, but that doesn’t mean it actually is, and it’s up to the judiciary to make that decision based on the facts… not a mere phrase in a much longer SCOTUS opinion. 

On Wednesday, the Supreme Court granted the DOJ’s request for a 30-day extension to reply, so we won’t hear the administration’s rationale for defending the statute for another few weeks. However, I wouldn’t be surprised if the DOJ and Solicitor General adopt a position similar or identical to the one it took in another prohibited case that should soon be considered in conference: Vincent v. Bondi.

We’ve covered Melynda Vincent’s case here at Bearing Arms before. Vincent was convicted of passing a bad check seventeen years ago and was sentenced to federal probation. Since then she’s conquered her drug addiction, graduated college, and has become a therapist and counselor helping others to do the same. Vincent, a single mom, would like to own a firearm for self-defense and other lawful activities, but because of that sole conviction she is unable to lawfully purchase or possess a gun. 

In its response to Vincent’s cert petition, the DOJ didn’t spend much time directly addressing the statute that prohibits everyone convicted of a crime punishable by more than a year in prison from exercising their Second Amendment rights (though it did argue the statute is facially constitutional). Instead, Solicitor General John D. Sauer argued that since Vincent may be able to get her gun rights restored through the DOJ, there’s no need for the justices to consider her case… at least at the moment. 

 At least as a general matter, Section 922(g)(1)’s disarmament of convicted felons complies with the Second Amendment. Although some courts have suggested that Section 922(g)(1) could raise constitutional concerns in some unusual applications, the government recently addressed those concerns by re-establishing an administrative process through which convicted felon scan regain the right to possess firearms. Given the availability of that process, petitioner cannot prevail on her Second Amendment challenge. 

Sauer noted that Attorney General Pam Bondi has already used that administrative process to restore gun rights to ten individuals, and “other individuals have applied to the Attorney Generalfor relief, and the Department is processing their applications.”

By providing a mechanism through which convicted felons can regain their ability to possess firearms, Section 925(c) addresses any constitutional concerns about the breadth and duration of the restriction imposed by Section 922(g)(1). Section 925(c) also provides a more workable process for restoring firearms rights than would a court-administered regime of as-applied challenges.

The main problem with that argument, though, is that the plaintiffs are asking the Supreme Court to decide if individuals like Melynda Vincent and Selim “Sam” Zherka should have lost their Second Amendment rights simply because of their convictions for non-violent offenses, not whether or not they should have the opportunity to regain their rights; something that Vincent’s attorneys brought up in their reply to the government’s response to Vincent’s cert petition. 

The government’s only real argument against review is that the Department of Justice “recently revitalized an administrative process under 18 U.S.C. [§] 925(c)through which convicted felons can regain their ability to possess firearms.” But even assuming the government can successfully revive an agency program that Congress has deliberately killed every year since 1992, it makes no effort to show a historical analogue for its new scheme, as Bruen requires. It also ignores that Bruen struck down a regime giving government officials broad discretion to decide whether individual applicants are suitable gun owners—exactly what § 925(c) contemplates. And more broadly, the possibility of discretionary relief from a government functionary does not save an otherwise unconstitutional law. In short, nothing about § 925(c) either changes the merits analysis or obviates the circuit split. Review is warranted. 

The DOJ’s response in Vincent is a perfect example of what FPC’s Brandon Combs described as a two-sided Department of Justice on Wednesday’s Bearing Arms’ Cam & Company podcast; where the department is opposing state-level gun control laws while defending virtually every federal gun control law that’s subject to litigation. 

In this case, the DOJ is not only defending Vincent’s status as a prohibited person. It’s essentially taking the position that the current president of the United States correctly lost his Second Amendment rights when he was convicted of multiple felonies by a kangaroo court in New York, and that the only mechanism for relief is to ask his Attorney General to restore those rights. 

For Trump, that might not be a big deal, but the stakes are very different for folks like Sam Zherka and Melynda Vincent. And again, the fundamental question isn’t whether or not they should regain their 2A rights through the Attorney General’s office. It’s whether they should have lost their right to keep and bear arms at all. The DOJ’s position in Vincent is, frankly, embarrassing in its attempt to keep the prohibited persons statute in place. I’d like to think the Solicitor General and DOJ will have had a change of heart before we see their reply in Zherka v. Bondi next month, but I don’t really expect much of a difference from what they’ve previously argued.