B.L.U.F.Is this the next case to head to the Supreme Court? The 10th Circuit found that a convicted felon does not have a constitutionally protected right to possess firearms.

(1000 words)

In 2020, Melynda Vincent filed to have §922(g)(1) overturned as applied to her. In 2007, she was a drug addict and tried to pass a bad check for less than $500. She was arrested and put in to drug rehabilitation. She came out of drug rehab before her court case and has been clean since then.

In court, she pleaded “guilty”. This has a sentencing guideline charge for multiple years with no option of probation. The court sentenced her to 0 years in prison and probation. She completed her probation early. She has had no other negative interactions with the law/courts.

At the district court level, the court used the Tenth Circuit Court’s opinion in United States v. McCane. McCain was a felon in possession case, which the Circuit court ruled in 2009 was constitutional.

The important part of their decision was that they did not do means-end to make that determination. Instead, they relied on Heller.

The [Supreme] Court observed that it wasn’t “cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626. We applied this observation in United States v. McCane to uphold the constitutionality of the federal ban on felons’ possession of firearms.
Vincent v. Garland, No. 21-4121, slip op. at 3 (10th Cir.)

We’ve seen this before, where the state or the court uses this language to justify current infringements. The other bit of language from Heller is felon dispossession statutes are “presumptively lawful.”id. at 7 quoting from Heller.

Since the Tenth Circuit used this language to dismiss felon possession challenges in McCane and Bruen did not change that language, the Tenth Circuit affirmed the dismissal (good guys lost).

This is bad in the short term, but might bode well for us in the long run.

Roughly 50 years ago, Congress banned the possession of firearms by convicted felons. Gun Control Act of 1968, § 922(h)(1), Pub. L. No. 90 618, 82 Stat. 1213, 1220 (codified as amended at 18 U.S.C. § 922(g)(1)). After Congress enacted this ban, the Supreme Court held that the Second Amendment guarantees a personal right to possess firearms. District of Columbia v. Heller, 554 U.S. 570, 595 (2008). Based on the Court’s language, we upheld the constitutionality of the ban on convicted felons’ possession of firearms. United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009).
id. at 2

Selling to a felon was made illegal in the 1930s, but possession wasn’t banned until 1968. 1968 is way past 1791 and well past 1868. This is another arrow in our quiver.

The court states that the Supreme Court created a new test for the scope of the right to possess firearms. This is wrong. The Supreme Court said that the method put forth in Heller is the test. Bruen was slapping down the inferior courts with “DO IT RIGHT”.

In oral arguments back in May, the state’s lawyer did a good job. The plaintiff’s lawyer was much less put together. Cases shouldn’t be decided by word stumbles and a lawyer’s look, but often they are. It also meant that the plaintiff’s lawyer frequently sounded like he was struggling to pull up his points and supporting citations.

The Judges in the oral arguments were much better than the judges in the Third Circuit (which I’ve been listening to). They asked good questions, were careful to make sure the plaintiff’s lawyer had the time he needed to answer. One of the Judges actually brought up that Bruen didn’t override Heller but gave instructions on how to apply Heller

This was an opportunity for the plaintiff’s lawyer to jump in and say “YES”. He didn’t. (IANAL).

Under Barnes, we can’t jettison McCane just because it might have been undermined in Bruen. Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1142 (10th Cir. 2023). We must instead determine whether Bruen indisputably and pellucidly abrogated McCane. Barnes, 776 F.3d at 1147.

In Bruen itself, the Supreme Court didn’t address the ban on felons’ possession of firearms. The Court instead addressed the constitutionality of a New York licensing scheme for carrying a handgun in public. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2122–24 (2022). In addressing that licensing scheme, the Court articulated a historical test for the scope of the Second Amendment’s right to bear arms. Id. at 2129–30. For that test, the Court drew upon District of Columbia v. Heller, which had recognized a personal right to bear arms. 554 U.S. 570, 595 (2008). In recognizing that right, the Supreme Court considered the text and historical origins of the Second Amendment. Id. at 605–20.
id. at 6–7

Emphasis added.

What we are dealing with is “stare decisis” Which is fancy Latin for “following precedent”. When the left has a law that they like, and they have won court arguments, they will yell “stare decisis!” See Dobbs. The left wanted to impeach some justices because they “lied” to the Senate because they said they would follow stare decisis in Roe v. Wade.

The Supreme Court is not bound by stare decisis. Inferior courts are strongly bound by stare decisis. This leads to a more stable legal landscape.

The only time that inferior courts revisit applicable case law is when there has been an opinion published by a superior court.

Here, the Tenth Circuit court looked to see if the method they used in McCane had been abrogated in Bruen. Since they didn’t use history and tradition nor did they use means-end, they found that nothing had changed.

This is not an unreasonable opinion. I don’t like it. That doesn’t mean they were mistaken. The challenge that comes out of this case is what does “presumptively lawful” mean in Heller.

The Supreme Court did not make a mistake in using “presumptively protected conduct” in the Bruen opinion. If the plain text of the Second Amendment covers the conduct in question that conduct is presumptively protected. It is then the state’s burden to prove a history and tradition of that infringement.

We win because there is little history and less tradition of infringing regulations from the founding era.


Vincent v. Garland, No. 21-4121 (10th Cir.)
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4 thoughts on “Vincent v. Garland (10th Cir., 21-4121) §922(g)(1)”
  1. Conviction on a felony is generally a sign of poor judgement. Significantly poor judgement that punishment by the State is warranted. What that tells me is the person convicted of a felony is… well… not exactly going to be a responsible and law abiding gun owner.
    But… there are so many exceptions to that rule that it cannot really be called a rule. Non-violent felonies, drug addicts that have been clean for year, etc… etc… etc… is it appropriate to institute a lifetime ban on gun ownership because of stupid actions taken years ago? Is there a human alive that did not do stupid crap as a teen?
    If you have a rap sheet as “long as your arm.” I kind of think you should be barred from legally purchasing a gun. On the other hand, if you have a single conviction, I am going to say.. it depends.
    While I would very much like to see all restrictive gun control laws stricken from the books, I would be quite happy to see some of them loosened up a bit, and if it starts by re-defining what constitutes a prohibited person, I say good!

    1. I appreciate the nod towards nuance here. As the years go by it is easier and easier to get slapped with a felony charge or accept a no jail time plea deal in exchange for a felony.

  2. I’ve always been bothered by “stare decisis”. Judges’ duty is to the Constitution — the Constitution says so, and their oath does as well. So, if there is a conflict between the Constitution and precedent, it is clear to me that the Constitution must win. Whether the judge sits on the district court or the Supreme Court makes no difference in which of the two is supreme.
    In other words, if and only if a precedent comports with the Constitution should stare decisis be applied.

  3. Unfortunately, Criminal Recidivism is a real thing. Like the majority re-offend.

    I have no problem with granting civil rights back to felons and criminals after they have served their time, including any parole or probation, and several years have elapsed. Start with voting rights after say two years? Gun rights after five?

    One exception should be repeat offenders. Maybe the answer is they can only apply for restoration of rights once? Or maybe the second time is only after 10 or 20 years of crime free life.

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