The Third Circuit Court of Appeals issued an en banc decision on Tuesday in a case dealing with a convicted felon caught with a gun, and while the bottom line is that the man's conviction was upheld, there were several judges who dissented and even more who found fault with the rationale used to reach the verdict.
The case, called U.S. v. Bost, involves a man who carjacked someone back in 2002. James Bost threatened to kill the woman unless she gave him money, and he drove her to her mother's home in an attempt to get cash. Instead, the victim took off running, screaming for help.
Bost was arrested and pleaded guilty to terroristic threats and criminal conspiracy as well as two other misdemeanors. Even though terroristic threats and criminal conspiracy are misdemeanors in Pennsylvania, they also come with the potential for a five-year prison sentence, which makes anyone convicted of those crimes ineligible under federal law to possess firearms.
Bost received four years probation for his crimes, but years later (and while on bail for another arrest), Bost was busted with a stolen .38 caliber pistol. He was indicted by a federal grand jury, but moved to dismiss the indictment, arguing that Section 922(g)(1) is unconstitutional as applied to him... and that it is facially unconstitutional as well.
The DOJ had argued that Section 922(g)(1) is perfectly valid as it extends to Bost, but also maintained that if Bost wanted to legally possess a firearm he should go through the rights restoration process that the agency says will soon be open for several thousand people to apply. The Third Circuit pointed out that the new system is not yet operational, but added "we know of no other context in which a criminal defendant must first seek administrative permission before raising a constitutional defense in his criminal prosecution," and declared "we will not invent such a requirement here."
That process, once it's officially up and running, may be Bost's best chance of regaining his rights, because the majority of the en banc court concluded that he can be disarmed under 922(g)(1) without violating the Second Amendment's protections.
In a previous case called Range v. Garland, the appellate court concluded that the statute, as applied to a non-violent conviction for falsifying income on a food stamp application, violated the rights of a Pennsylvania man named Bryan Range. But Range left plenty of questions unanswered, including which criminal convictions can constitutionally justify disarmament. The majority in Bost attempted to answer at least some of those questions.
The Third Circuit struggled with how it determined Bost poses such a risk, which is where several judges split from the majority; concurring with the conclusion, but not the path the majority used to get there.
The majority concluded that the historical justification for disarmament is preventing physical violence, not simply punishing people for having broken the law.
It identified two historical approaches: individualized judicial findings that someone posed a danger of violence, and categorical disarmament laws directed at groups perceived as dangerous. The court noted that many of the latter laws were discriminatory and often allowed affected individuals to regain their arms by demonstrating that they no longer posed a threat. The majority went on to say that convictions that demonstrate a risk of physical violence can presumptively justify disarmament without requiring the government to prove the individual's dangerousness again in each subsequent prosecution. Convictions that don't demonstrate a risk of physical violence, though, don't automatically justify disarmament. In those cases, the government must offer some historically grounded justification for stripping someone of their Second Amendment rights.
Judges Patty Schwartz, Cheryl Ann Krause, and L. Felipe Restrepo agreed with upholding Bost's conviction, but did so with the belief that 922(g)(1) is constitutional in prohibiting firearm possession by all felons, not just those whose crimes demonstrate dangerousness.
Judge Judge Tamika R. Montgomery-Reeves concurred with upholding the conviction, but took issue with the "repugnant and discriminatory laws and procedures that would very likely violate the First and Fourteenth Amendments of the U.S. Constitution" cited as historical analogues to disarming a class of people.
Judge Jennifer L. Mascott concurred with most of the majority's opinion, but "would have decided the case "on a more limited basis and find the application of 18 U.S.C. Section 922(g)(1)constitutional only as applied to Mr. Bost’s individual violent record and not categorically to an entire class of offenses."
Judges Peter J. Phipps and Emil J. Bove dissented outright, arguing that there is no historical tradition of disarming felons after their sentences have been served.
The government won this particular case, but the Third Circuit made it clear that a criminal conviction, even one serious enough to trigger a lifetime federal firearms prohibition, doesn't necessarily mean the government can constitutionally disarm someone forever.
The splits in the Bost decision echo the larger splits across the appellate courts, with some circuits like the Seventh concluding that 922(g)(1) is essentially unchallengeable under the Second Amendment. The Supreme Court has turned away many 922(g)(1) cases over the past few terms, so the justices appear to okay with letting the lower courts fight amongst themselves for the time being, but I don't think they can avoid the conflict forever. Maybe Bost will be the case SCOTUS decides to address, but if not there are still plenty others in the pipeline.
Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.
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