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.
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.
—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.
—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).
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
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.