At last Friday’s conference the Supreme Court was slated to discuss three separate cases dealing the federal ban on gun possession for those convicted of a crime punishable by more than a year in prison. All three cases involve non-violent offenders who maintain that Section 922(g)(1) is unconstitutionally broad and violate their Second Amendment rights, and we could learn as early as tomorrow whether the Court will accept any of these cases for review.
That decision could have direct implications for a Henry County, Virginia man who’s now facing charges for possessing a gun as a prohibited person after he used a firearm to defend himself and a woman from a violent home invader earlier this month.
The Henry County Sheriff’s Office reported receiving a call Friday night about a man entering a home with a gun and subsequently being shot. The complaint states that Jessie Rumley arrived uninvited and was hitting a woman on the head with a gun outside on the porch.
Homeowner Travis Martin witnessed the assault, retrieved a gun, and when Rumley entered the house with his gun raised, Martin shot and killed him. Martin is now facing a charge for possessing a gun as a convicted felon.
Martin was convicted of grand larceny and breaking and entering 25 years ago, and local media haven’t reported on any more recent convictions or legal trouble, at least until now.
Martin’s bond was set at just $4,000, which indicates that the judge doesn’t see Martin as a big threat to public safety.
While the crimes Martin was convicted of in 2000 are pretty serious, they’re also not violent in nature. In some appellate courts, that would be enough for Martin to raise a Second Amendment claim as part of his defense. The Fourth Circuit Court of Appeals, though, which has jurisdiction in Virginia, has declared that Section 922(g)(1) is Second Amendment compliant, and only those who’ve been pardoned or were convicted of a crime that itself was later found to be unconstitutional can successfully make an as-applied argument. ln U.S. v. Hunt, decided last December, a three-judge panel concluded that Fourth Circuit precedent foreclosed facial and the vast majority of as-applied challenges, but added that “Section 922(g)(1) would survive Second Amendment scrutiny even if we had the authority to decide the issue anew.”
Heller repeatedly described the core of the Second Amendment right as protecting “law-abiding” citizens.” In contrast, Heller made clear that restrictions on firearms possession by those who are not law-abiding—i.e., felons—are “presumptively lawful.” These limitations arise from the historical tradition.
… Heller instructs that the “pre-existing right” “codified” in the Second Amendment protects firearms possession by the law-abiding, not by felons.
Nothing in Bruen or Rahimi alters this reading of Heller. As for Bruen, our en banc Court has already held that “[n]othing in Bruen abrogated Heller’s extensive discussion of the contours of the scope of the right enshrined in the Second Amendment.” The same is true of Rahimi, which pointedly repeated Heller’s statement that “prohibitions . . . on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’” We thus conclude that Section 922(g)(1) “regulates activity”—that is, the possession of firearms by felons—that “fall[s] outside the scope of the [Second Amendment] right as originally understood.”
Other appellate courts haven’t just presumed that this statute is constitutional, but have actually required the government to prove that it comports with the nation’s history and tradition of gun ownership. Three circuit courts have held that 922(g)(1) require a case-specific analysis of the individual’s history and dangerousness, while four others have ruled that the statute isn’t subject to facial or as-applied challenges.
SCOTUS could resolve that conflict by granting cert to any or all of the 922(g)(1) cases it heard in conference last Friday, though the justices may decide instead to hang on to them until the Hemani decision is handed down next year, at which point the cases would be granted cert, the lower court decisions vacated, and remanded back to lower courts for further review in light of what the Court says in Hemani.
Either way, Martin can’t depend on SCOTUS to save him in the short term. If the justices do take up one of these three cases, though, Martin’s attorneys could always ask the judge to pause the criminal proceedings until the Court has issued its opinion on the constitutionality of 922(g)(1). Second Amendment advocates have already asked the Court to grant cert to these cases, and if I were Martin I’d be saying a prayer tonight that the justices grant that request when the Supreme Court’s orders are released tomorrow morning.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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