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May 15, 2024
By Mark Chesnut
The U.S. Court of Appeals for the 9th Circuit—historically known as anything but gun friendly—has ruled that the federal ban on gun possession by some criminals who have served more than a year in prison is unconstitutional. In a 2-to-3 ruling, the 9th Circuit on May 9 overturned the unlawful gun possession conviction of Steven Duarte, a nonviolent offender who had served prison time, citing the landmark 2022 Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen. In the case U.S. v. Duarte , Judge Carlos Bea wrote for the majority: “Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment's plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government's burden to prove that the challenged law is consistent with this Nation's historical tradition of firearm regulation.”
In the end, the court decided the government failed to provide a historical precedent that applied to this case.
“A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are ‘distinctly similar’ to Duarte's underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender's estate,” Judge Bea wrote.
The case revolves around Duarte’s arrest in March 2020 in Inglewood, California. Police saw a car run a stop sign, and when they attempted to stop the car Duarte, a passenger in the back seat, tossed a handgun out of the window. Duarte had previously been convicted of vandalism, possession of a controlled substance, evading a peace officer and being a felon in possession of a firearm. He was sentenced to 51 months in prison after jurors found him guilty of breaking the law banning gun possession by felons and by others convicted of crimes carrying penalties of more than a year in prison.
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Explaining the court’s reasoning, Judge Bea wrote: “At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an ‘arm’ within the meaning of the Second Amendment’s text and that Duarte’s ‘proposed course of conduct—carrying [a] handgun publicly for self-defense’— falls within the Second Amendment’s plain language, two points the Government never disputes.” He also wrote: “Because Duarte is an American citizen, he is part of ‘the people’ whom the Second Amendment protects.” Concerning the court’s findings regarding the second Bruen standard, the reasoning was equally forthright.
“At Bruen’s second step, we conclude that the Government has failed to prove that [the law’s] categorical prohibition, as applied to Duarte, ‘is part of the historical tradition that delimits the outer bounds of the’ Second Amendment right,” the judge wrote. Judge Bea, a George W. Bush appointee to the court, was joined on the majority by Judge Lawrence VanDyke, who was appointed by Donald Trump. The dissenting vote was cast by Judge Milan Smith, also a George W. Bush appointee.
In his dissent, Judge Smith wrote: “The majority reads Bruen, a Supreme Court decision reviewing New York’s gun licensing regime, as an invitation to uproot a longstanding prohibition on the possession of firearms by felons…. One day—likely sooner, rather than later—the Supreme Court will address the constitutionality of § 922(g)(1) or otherwise provide clearer guidance on whether felons are protected by the Second Amendment. But it is not our role as circuit judges to anticipate how the Supreme Court will decide future cases.”
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As with most court decisions, this one still has a long way to go before anything changes concerning the law. It’s likely that prosecutors will ask the court to grant an en banc review of the case so the full 9th Circuit can consider the matter.
About the Author Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for nearly 25 years.
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