Armed Felons Potentially Next Question for SCOTUS

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The Second Amendment doesn't exclude certain categories of people from the right to keep and bear arms. It simply says "the people's right," meaning all the people.

Of course, not everyone was considered people back then, which is a fair criticism, but the Second Amendment didn't provide for exclusions. There was no clause that said, "the right to keep and bear arms shall not be infringed...except for those people over there. Screw those guys."

But on the same token, we've excluded some people from owning guns for a very long time. In particular, convicted felons.

And, to be clear, a lot of people are really fine with the status quo.

Yet it looks like there's a very good chance the next question the Supreme Court might wrestle with is whether felons should be prohibited from owning guns.

A federal appeals court ruled Tuesday that the Supreme Court’s dramatic expansion of gun rights in the 2022 case New York Rifle Assn. v. Bruen does not mean that a federal ban on felons possessing firearms is now unconstitutional.

Andre Dubois tried to ship firearms wrapped in aluminum foil and hidden inside two deep fryers from an Express Copy Print & Ship store in Georgia to the Commonwealth of Dominica in 2018. The package was X-rayed while in transit, and federal officials seized the shipment and charged Dubois with attempting to smuggle firearms, delivering firearms to a common carrier for shipment without written notice, and possessing a firearm as a felon under 18 U.S.C. § 922(g)(1), known as the federal “felon in possession” statute.

Dubois appealed his convictions on a number of grounds, and while those appeals were pending, the Supreme Court handed down the Bruen decision. In June 2022, the six-member Bruen majority, led by Justice Clarence Thomas, said New York’s gun licensing regulations were unconstitutional because they restricted gun rights in a way that was not sufficiently grounded in “historical tradition” to satisfy the mandates of the Second Amendment.

Dubois did not dispute that he violated the federal statute, but he argued that his conviction should be vacated because the law — as now clarified under Bruen — violated his Second Amendment rights. Dubois’s claim rested on the argument that the Court’s ruling in Bruen “abrogated” — or demolished — an earlier precedent that upheld the felon in possession statute.

Although the Bruen ruling has become the basis for striking down gun regulations in a number of contexts, the U.S. Court of Appeals for the 11th Circuit ruled that the felon in possession statute still stands.

Now, the question is whether the Supreme Court will even hear this case and, if they do, what will they decide.

Assuming, of course, there's an attempt to appeal this, which seems likely.

In the 7th Circuit, however, the court there just ruled that Bruen did abrogate the earlier precedent, which means you have to circuit courts reach very different opinions. That's the sort of thing that tends to get picked up by the highest court in the land.

So it seems probable that they will hear the case, but what are we looking at here?

I think a lot of that will depend on the Rahimi ruling.

There are plenty of indicators that the Court will hold that at least some parties subject to a restraining order should be disarmed. I think that if that holds true, it's unlikely the court is going to lift the prohibition on felons, at least as a whole.

We might see the prohibition against non-violent felons lifted, at most, but I'm skeptical that we'll even see that.

I don't necessarily agree with that, mind you. My take is that if you're still a danger, why are you walking around among us? If you're not a danger, then you should get all of your rights back. It's just that simple.

But that's not the rules in place and I'm pretty sure that's a very minority opinion, so it's not likely to happen.

I'm also pretty sure almost no one on the Supreme Court shares it, so don't hold your breath on that happening.