The Ninth Circuit Ruled That Felons Have Gun Rights

. . .Maybe, It’s Not That Simple

The news blew up news feeds last week:

NINTH CIRCUIT PANEL RULES NON-VIOLENT FELONS CAN OWN GUNS

That headline is from a gun rights group and is much calmer than most.

First – Please Don’t Call Us

Washington Federal and Washington State Law Have Not Changed

We will discuss the ruling below. For now, please simply understand this: this is a federal appellate court decision that is sure to be appealed. It has no effect at law, not even for the convicted felon who won the case.

There is a long way to go, this is sure to reach the Supreme Court particularly considering similar decisions in other state and federal courts across the country.

For now, though, this decision has no effect on current law.

What the Duarte Decision Says

The case is an appeal of a federal criminal conviction in California. In US v Duarte, the defendant, Steven Duarte, was arrested while fleeing police after throwing a gun out a car window. He was charged with a host of misdemeanors – apparently, he collected them in droves – and a felony for felon in possession of a firearm.

Duarte claimed that the gun possession charge was unconstitutional in that he had never been convicted of a violent crime. The court sided with Duarte and vacated his conviction.

They found the federal ban on felons possessing firearms was unconstitutional as applied to Duarte because his underlying convictions didn’t involve violent crimes.

As this will be an ongoing issue across jurisdictions for the foreseeable future, it’s worth noting the Ninth Circuit’s argument.

They applied this logic: “Duarte is an American citizen, and thus one of ‘the people’ whom the Second Amendment protects . . . [therefore] the Second Amendment’s plain text and historically understood meaning . . . presumptively guarantee his individual right to possess a firearm for self-defense. The Government failed to rebut that presumption by demonstrating that permanently depriving Duarte of this fundamental right is otherwise consistent with our Nation’s history.”

The court found that because none of Duarte’s previous convictions were for violent crimes, “. . . they probably wouldn’t have resulted in a lifetime gun ban during the founding era . . . Duarte’s underlying vandalism conviction, we have explained, likely would have made him a misdemeanant at the Founding,” and, therefore, legally entitled to possess a firearm.

They noted that his sole felony was felon in possession of a firearm, a “nonexistent crime in this country until the passage of the Federal Firearms Act of 1938.”

The summation: “Based on this record, we cannot say that Duarte’s predicate offenses were, by Founding era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights.”

In other words, the drafters of the Constitution never envisioned citizens convicted of non-violent offenses being banned for life for life from possessing firearms.

Where Do We Go From Here

Again, this will be appealed. Probably initially to an en banc – full – Ninth Circuit court on its way, inevitably, to the Supreme Court. No one can predict what the Court will be but there have been hints, starting with the expansion of 2nd Amendment rights in the Heller decision, “[t]he Second Amendment guarantee[s] to ‘all Americans’ the right to bear commonly used arms in public” in 2008.

Since Heller, the Supreme Court has only ruled on a 2nd amendment claim once, New York State Rifle and Pistol Association v. Bruen in 2022 which substantially upheld Heller while opening the door for future challenges to gun laws.

Wild guess? The current construction of the Supreme Court may well accept an argument based on ‘what the founders wanted.’

Gun Rights Restoration in Washington

In the meantime, this is a good place to note that Washington State has existing gun rights restoration laws on the books.