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Ninth Circuit Makes Unexpected Ruling Over Non-Violent Criminals Possessing Firearms

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Scales of Justice and lawbooks in the backgroun

In layman’s terms: A Ninth Circuit panel ruled that under Bruen, there’s no tradition of banning non-violent criminals from possessing firearms.

The Ninth Circuit Court of appeals overturned a district judge’s ruling allowing a lifetime ban on firearms for non-violent, convicted felons.

The US vs. Duarte case is especially interesting because it isn’t a civil case, but rather a criminal case.

In their decision, the Ninth Circuit panel, presided over by Judge Andre Birotte Jr., vacated Steven Duarte’s conviction for violating 18 U.S.C. § 922(g)(1). Mr. Duarte is a convicted non-violent felon. Under federal law, if you are convicted of an offense punishable by imprisonment for a term exceeding one year, it is a crime to possess a firearm.

Notably, the panel applied the Bruen precedent and found that the previous ruling failed to apply the tests therein:

…and that Vongxay, which did not apply the mode of analysis that Bruen later established and now requires courts to perform, is clearly irreconcilable with Bruen.

Vongxay was a case decided before Bruen used by the district judge to uphold Mr. Duarte’s convictions. The the Ninth Circuit panel dug more deeply into why Bruen needed to be applied and why Vongxay was incorrect:

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge. Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. 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. Vongxay did not apply these two analytical steps because Bruen had not yet established them. We must therefore reconsider § 922(g)(1)’s constitutionality, this time applying Bruen’s two-step, text-and-history framework.

“The panel is correct in my opinion that Vongxay is completely irreconcilable with Bruen,” said Second Amendment lawyer, Kostas Moros, in an interview, adding, “if this ruling stands in the Ninth Circuit, people who have all sorts of non-violent crimes will be able to challenge their firearms prohibitions.”

Only Judge M. Smith Jr. dissented, and Judge Bea’s decision summed up his dissent as such:

He wrote that until an intervening higher authority that is clearly irreconcilable with Vongxay is handed down, a three-judge panel is bound by that decision. He wrote that Bruen, which did not overrule Vongxay, reiterates that the Second Amendment right belongs only to law-abiding citizens; and that Duarte’s Second Amendment challenge to § 922(g)(1), as applied to nonviolent offenders, is therefore foreclosed.

Moros observed that the dissent didn’t challenge Bruen directly, saying, “…the dissenting judge knows he loses the historical debate, so he just sticks with this technical argument of Vongxay being good law. It clearly isn’t.”

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