History and tradition strike again

USA v. Duarte
United States Court of Appeals for the Ninth Circuit
No. 22-50048 (May 9, 2024)

FACTS:

• Steven Duarte, who has five prior non-violent state criminal convictions, all punishable for more than a year, was charged and convicted under 18 U.S.C. § 922(g)(1) after police saw him toss a handgun out of a moving car window.
• § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense punishable by imprisonment for a term exceeding one year.

PROCEDURAL HISTORY:

• Duarte was convicted by a jury in the U.S. District Court for the Central District of California.
• He timely appealed his conviction to the Ninth Circuit, challenging the constitutionality of § 922(g)(1) under the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.

ISSUE: Whether 18 U.S.C. § 922(g)(1) violates the Second Amendment as applied to a non-violent offender who has served his time in prison and reentered society.

MAJORITY HOLDING (Bea, J.):

• Yes. Under the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, § 922(g)(1) violates the Second Amendment as applied to Duarte.
• Reasoning:

1. At step one of the Bruen analysis, Duarte, as an American citizen, is part of "the people" whom the Second Amendment protects. The Government failed to show felons are excluded from "the people."
2. At step two, the Government failed to demonstrate that § 922(g)(1)'s lifetime ban on non-violent felons possessing firearms is consistent with the Nation's historical tradition of firearm regulation. The Government's proffered historical analogues were not distinctly similar to § 922(g)(1) in how and why they burdened the right.
3. The Ninth Circuit's pre-Bruen decision in United States v. Vongxay, which upheld § 922(g)(1) without applying Bruen's analytical framework, is clearly irreconcilable with Bruen and no longer controls.

DISSENT (M. Smith, J.):

• The panel is bound by the Ninth Circuit's decision in Vongxay until an intervening higher authority that is clearly irreconcilable with Vongxay is handed down.
• Bruen did not overrule Vongxay because it reiterated that the Second Amendment right belongs only to "law-abiding" citizens.
• Therefore, Duarte's as-applied challenge to § 922(g)(1) is foreclosed by Vongxay.

DISPOSITION: Duarte's conviction vacated and the district court's judgment reversed.