Top Federal Criminal Lawyer Michael Leonard discusses Bruen 922g felon in possession decision from Judge Gettleman. As discussed in prior posts, the United States Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen (“Bruen”) suddenly called into question the Constitutionality of both Federal and State gun laws. In short, in Bruen, the Court held that “history and tradition” should determine whether laws regulating firearms pass Constitutional muster under the Second Amendment.
Recently, on November 2, 2023, Judge Robert Gettleman, a Federal District Court Judge in the United States District Court for the Northern District of Illinois (Chicago), issued an Opinion holding that the “felon in possession” of a firearm law, 18 U.S.C., section 922(g) is unconstitutional. Judge Gettleman issued that decision in United States v. Glen Prince, Case No. 22 CR 240.
The allegations in the Prince case were that the defendant allegedly approached persons on a train line; brandished a firearm; and robbed them. The defendant had a criminal record that included prior felony convictions.
In analyzing the constitutionality of the federal felon in possession law, Judge Gettleman began with the Second Amendment to the U.S. Constitution by first noting that the U.S. Supreme Court has made it clear that the “the right secured by the Second Amendment is not unlimited.” The court then turned to Bruen, in which the Court “considered the meaning of the Second Amendment and articulated an analytical framework to determine whether a firearm regulation is constitutional.” Judge Gettleman emphasized that, pursuant to the Supreme Court’s holding in Bruen, “the Second Amendment’s plain text protects certain conduct, the government can regulate such conduct only if it can ‘affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.'” .
Judge Gettleman n Prince further noted that the “Bruen Court provides two avenues of historical inquiry. The first avenue of inquiry is a straightforward historical inquiry, which applies when a challenged regulation addresses a general societal problem that has persisted since the 18th century.” Applying that inquiry, per Bruen, “courts must identify a ‘distinctly similar historical regulation addressing that problem.'” Judge Gettleman found that, per Bruen, the basis for his “second avenue of inquiry is by analogy.” He quoted Bruen, which found that, because “[t]he regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868, there is not always straightforward correspondence, and unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.”
In applying the Bruen Court’s framework, Judge Gettleman agreed with tthat Bruen and other decisions “did not hold that the Second Amendment categorically protects only law-abiding citizens, despite their repeated use of such qualified language as ‘law abiding citizens.” Judge Gettleman held that “the government has not met its burden to prove that felons are excluded from ‘the people’ whose firearm possession is presumptively protected by the plain text of the Second Amendment.”
As a result, Judge Gettleman moved on “to evaluate the second inquiry required by Bruen. Judge Gettleman acknowledged that, under Bruen, the government has the authority to regulate presumptively protected conduct under the Second Amendment when it can demonstrate that the statute is part of this nation’s historical tradition of firearm regulation.” Thus, he found that the government can “succeed under Bruen’s ‘straightforward historical inquiry if it can identify a distinctly similar historical regulation addressing a general societal problem that has persisted since the 18th century.” However, he noted that, conversely, where “a distinctly modern regulation is at issue, the government must offer a historical regulation that is relevantly similar.”
Judge Gettleman concluded that there was “no evidence of any law categorically restricting individuals with felony convictions from possessing firearms at the time of the Founding or ratification of the Second or Fourteenth Amendments.” Judge Gettleman was “persuaded that the text, history, and tradition of firearm-dispossession statutes demonstrates that the legislature has the authority to categorically regulate firearm possession by individuals who have demonstrated that they cannot be trusted to obey the law, or pose some other danger to the political community if armed.” He found that the “record shows that the legislature has a longstanding tradition of justifying exclusion from the right to keep and bear arms based on its assessment of that group’s risk to the rule of law, whether based on mental health, criminal record, loyalty, or character.” In addition, Judge Gettleman indicated that he was rejecting “the notion that history calls for an individualized assessment of risk, or a distinction between violent and nonviolent felonies.” He further found that the “record clearly demonstrates that across-the-board disqualifications from gun ownership are a part of this nation’s traditional approach to gun regulation.
All that said, however, Judge Gettleman found that the “inquiry required by Bruen . . . is not merely whether a dispossession statute’s burden is ‘comparably justified,’ but also whether the statute imposes a ‘comparable burden’ on the right itself.” He then found that, although the “historical record” demonstrated our country’s “tradition of ‘comparably justified’ categorical dispossession statutes,” the government in Prince had failed to meet its burden of providing evidence of a
“dispossession statute with a ‘comparable burden”’ to the felon in possession statute. More specifically, in holding that statute unconstitutional, he noted that he was not persuaded that the government had met its burden of showing a “distinctly similar,” or even a “relevantly similar,” historical analogue to the felon in possession statute’s “permanent prohibition on firearm possession by felons.”
In striking down the felon in possession law, Judge Gettleman concluded it imposed “a far greater burden on the right to keep and bear arms than the historical categorical exclusions from the people’s Second Amendment right.”
At Leonard Trial Lawyers we have decades of experiencing in defending clients against Federal and State gun charges. Our attorneys have also recently filed several motions to dismiss, which are premised upon Bruen.
Michael Leonard
Leonard Trial Lawyers
November 29, 2023