Top Federal Lawyer Michael Leonard analyzes Seventh Circuit Felon in Possession Decision. Recently, in the case of United States v. Anthony Gay, Case No. 23 2097, the Seventh Circuit Court of Appeals addressed, in part, a Constitutional challenge to section 922g – the Federal felon in possession statute. The Opinion was written by Judge Easterbrook, and unfortunately does not provide any relief under section 922.
In Gay, the defendant was a passenger in a car that was stopped by law enforcement. The defendant fled, and police recovered a gun that defendant allegedly ditched during that flight. Law enforcement also later recovered bullets from defendant’s hotel room. Because of his prior felony convictions, the defendant was prohibited from possessing guns or ammo pursuant to 18 U.S.C. §§ 922(g)(1), 924(a), 924(e). Defendant was federally charged and convicted after jury trials on the felon-in-possession of a firearm, as well as the possession of ammunition charges.
On Appeal, the Gay court first considered, and rejected, defendant’s sufficiency of the evidence and illegal search and seizure arguments.
The court in Gay next considered defendant’s argument that his “prosecution was unconstitutional” because the “Second Amendment permits persons with felony convictions
to possess both firearms and ammunition, not with-standing statutes such as 18 U.S.C. §922(g)(1).”
The court rejected that argument, relying upon the Supreme Court’s holdings in Heller (554 U.S. 570), where the Court stated that “longstanding prohibitions on the possession of firearms by felons” are valid, and McDonald (561 U.S. 742 where the Court “reassured readers that all of the
reservations and provisos in the Heller opinion retain validity.”
Interestingly, the Gay court further cited to the Supreme Court’s most recent Second Amendment decision, New York State Rifle and Pistol Association, Inc. v. Bruen – which has been repeatedly cited by defendants as support for the proposition that Section 922 is unconstitutional. In fact, at least two District Court Judges in the Northern District of Illinois have held, based upon Bruen, that the felon-in-possession statute is either facially unconstitutional or unconstitutional as applied.
Accordingly, Gay may be foreshadowing bad (for defendants) law with respect to the application of Bruen to Section 922g cases. However, the Gay court left the door open by noting that “[T]he Justices have yet to consider the question whether non-violent offenders may wage as-applied challenges to §922(g)(1). Furthermore, the Gay court stated, “[W]e may assume for the sake of argument that there is some room for as- applied challenges.”
However, in the case before it, the Seventh Circuit held that Gay was not in a position to make an as-applied challenged. In short, the Gay court found that Gay was not a “person” within the meaning of the Second Amendment in light of his allegedly non “law-abiding, responsible citizens” citizen status. The court reached that conclusion based upon the fact that Gay had been convicted of 22 felonies, including violent ones. In addition, the Gay court further relied upon the fact that he was on parole at the time of the offenses at issue. Accordingly, the court concluded that Gay was not a “law-abiding, responsible person who has a constitutional right to possess firearms.”
Leonard Trial Lawyers
Michael Leonard
April 30, 2024