No one wants to see a person who is a danger to society with a weapon; that is something that all agree on. But should the same prohibition be applied to those found guilty of non-violent offenses?
Felonies are not all created equal, and many Americans no longer enjoy their Second Amendment freedoms due to a past indiscretion that had nothing to do with violence.
According to the Ninth Circuit Court of Appeals, these citizens will remain permanently disarmed under federal law.
Panel decided that all convicted felons must cede their gun rights
On Friday, the en banc panel overturned a previous decision to restore the plaintiff’s Second Amendment rights. The case centered on Steven Duarte’s 2021 conviction of being a felon and having a firearm in his possession.
Police caught Duarte throwing a pistol out of his car window while pulling him over for a traffic violation. He was previously convicted four times on charges ranging from evading police to possessing drugs and vandalism.
None of these constituted violent felonies, but Duarte lost his gun rights anyway due to federal law. This latest conviction spawned the push to restore his freedom by arguing that the gun ban should not apply to those not convicted of violent offenses.
Remember, the Supreme Court’s 2022 Bruen decision established a clear test to determine whether gun laws are constitutional.
The high court wrote in Bruen: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
The Court of Appeals determined that the nation’s history and tradition of gun control supported “permanent and categorical disarmament” of every convicted felon, including Duarte.
Ninth Circuit agreed with Duarte in 2024
In May 2024, a three-judge panel of the Ninth Circuit took a markedly different view of Duarte’s situation. Judge Carlos Bea wrote that the plaintiff is a U.S. citizen, which means he is one of “the people” for whom constitutional protections apply.
“The Second Amendment’s plain text and historically understood meaning therefore presumptively guarantee his individual right to possess a firearm for self-defense,” Bea declared. “The Government failed to rebut that presumption by demonstrating that permanently depriving Duarte of this fundamental right is otherwise consistent with our Nation’s history.”
That was then.
The Court of Appeals’ Friday rebuttal only widened the already significant gap in rulings on non-violent felons and gun rights. It is also a matter of civil liberties that brings widely disparate groups together.
For example, the American Civil Liberties Union (ACLU) and several of its state organizations filed an amicus brief with the court supporting Duarte’s position.
No one will ever confuse the ACLU with being a staunch defender of gun rights. Still, it recognized that there are many among the over 20 million Americans stripped of their Second Amendment freedoms who committed only non-violent offenses.
ACLU Deputy Legal Director Cecilia Wang argued that Duarte’s conviction and subsequent losing of his right to keep and bear arms does not pass constitutional muster.
“As a matter of law, Mr. Duarte’s conviction fails the Supreme Court’s constitutional test because there is no history or tradition to support the permanent stripping of Second Amendment rights based solely on a past criminal conviction,” Wang declared. “The government’s extreme argument–that only ‘responsible, law-abiding citizens,’ as defined by a federal prosecutor, enjoy the rights of ‘the people’ under the Second Amendment–is contrary to the constitutional text and was firmly rejected by the Supreme Court just last term.”
Whether it’s Duarte’s case or another, the issue begs for a final resolution from the Supreme Court.
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