By Robert Phillips  
Deputy District Attorney (ret.) 

The Second Amendment Protects Convicted Felons in Their Right to Possess Firearms 

Second Amendment Update: Constitutionality of the federal “felon in possession of a firearm” statute (18 U.S.C. § 922(g)(1))  

In the last quarter-century, the U.S. Supreme Court has made some giant steps forward in resolving hot-button issues related to the Second Amendment’s right to bear arms provision. To refresh your memory, the Second Amendment provides as follows:  

     “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not  be infringed.”  

But recognizing that none of the protections provided in the Bill of Rights is absolute, the Supreme Court has attempted to draw a line for us mere mortals, showing us when we may, and  may not, possess or carry firearms.  

On the issue of what the Second Amendment really means, the High Court has decided at least three very important cases in the past 16 years:  

District of Columbia v. Heller, 2008 

First, District of Columbia v. Heller?(2008) 554 U.S. 570, in finding unconstitutional a Washington D.C. statute, the court held that there is a constitutionally protected right to the possession of an operable handgun in one’s home, allowing for a firearm to be readily available for self-defense. The court told us that the?Second Amendment?protects everyone’s right to possess a firearm despite the perhaps confusing language in the amendment where it says that a “well-regulated militia” is “necessary to the security of a free state.”  In Heller, the court held that this right is in fact unconnected to whether you actually serve in a “militia,” or the military.  

In dissecting the Second Amendment, phrase by phrase, and interpreting the historical significance of each, the court finally explains for us (pages 595-596) that the provision for a “well-regulated militia” merely refers to the fact that at the time of the writing of the U.S. Constitution, “the militia (was) comprised all males physically capable of acting in concert for the common defense.” This is different than a “federally organized militia,” such as the Army or Navy. As a result, the Second Amendment is to be interpreted to protect the use or possession of a firearm for any traditionally lawful purpose, such as (but not limited to) self-defense within the home, and not, as argued by some, that it protects only the right to possess and carry a firearm in connection with one’s military service.  

In Heller, the court held that this right is in fact unconnected to whether you actually serve in a “militia” or the military. In dissecting the Second Amendment, phrase by phrase, and interpreting the historical significance of each, the Court finally explains for us (at pgs. 595-596) that the provision for a “well-regulated militia” merely refers to the fact that at the time of the writing of the U.S. Constitution, “the Militia (was) comprised all males physically capable of acting in concert for the common defense.” This is different than a “federally organized militia,” such as the Army or Navy. As a result, the Second Amendment is to be interpreted to protect the use or possession of a firearm for any traditionally lawful purpose, such as (but not limited to) self-defense within the home, and not, as argued by some, that it protects only the right to possess and carry a firearm in connection with one’s military service.  

McDonald v. Chicago, 2010 

Two years after?Heller, the Supreme Court decided McDonald v. Chicago?(2010) 561 U.S. 742, which held that the?due process clause of the Fourteenth Amendment incorporates the?Second Amendment?right to bear arms, thus making this amendment applicable to the states as well as the federal government. This is based upon the recognition that the Bill of Rights, the first 10 amendments, was originally intended to only restrict the actions of the federal government unless under the Fourteenth Amendment’s due processes clause, it can be said that not to also apply the constitutional right at issue to state cases would violate a defendant’s right to “life, liberty, or property, without due process of law” – the right to be treated fairly. The Second Amendment, it was held, falls within this category. 

New York State Rifle & Pistol Association v. Bruen, 2022 

And then perhaps most importantly, in New York State Rifle & Pistol Association v. Bruen (2022) 597 U.S. 1, the court established for the first time the test to be used in evaluating the constitutionality of any specific state or federal statute which, on its face, purports to make illegal the possession of a firearm. Specifically, a two-step test is used. First, the court is to consider whether “the?Second Amendment’s?plain text covers” the person challenging the law, the “arm” involved, and that person’s “proposed course of conduct.” (page 17)  

If the?Second Amendment’s “bare text” covers the person, his firearm, and his conduct, then “the government must demonstrate that the (challenged) regulation is consistent with this nation’s historical tradition of firearm regulation.” (Pg. 18. See also pg. 44, fn. 11.) “Only if the government proves that its ‘firearm regulation is consistent [in this sense] with th[e] nation’s historical tradition may a court conclude that the individual’s conduct falls outside the?Second Amendment’s?“unqualified command.’” (The ‘unqualified command’ in this case being the legal possession of whatever firearm is at issue.)   

The first step as described in Bruen is typically easy to meet. Where subsequent cases have gotten hung up is the second step, evaluating the “historical tradition of the firearm regulation.”  

Such is the case where a statute seeking to take firearms out of the hands of convicted felons is the issue. Federally, 18 U.S.C. § 922(g)(1)?makes it a crime for any person to possess a firearm if he (or she) has been previously convicted of an offense “punishable by imprisonment for a term exceeding one year.” In California, Penal Code § 29800(a)(1) does the same. (California also provides a 10-year firearms prohibition for people convicted of specified misdemeanors, pursuant to P.C. § 29805.)  

Are Nonviolent Felons Allowed to Possess Firearms? 

Remembering again that the Second Amendment is not absolute, we must look to the case law to determine where to draw the line. Fourteen years ago, the Ninth Circuit Court of Appeals, in United States v. Vongxay (9th Cir. 2010) 594 F.3rd 1111, held that Peter Vongxay, a member of a Fresno criminal street gang with three prior, non-violent felony convictions (two car burglaries and one for drug possession), illegally possessed a loaded semi-automatic pistol. Prosecuted in federal court for violating 18 U.S.C. § 922(g)(1), his argument that the Second Amendment protected his right to have that gun fell on deaf ears, the Ninth Circuit upholding his conviction.  

However, the Vongxay decision came down before Bruen was decided by the Supreme Court. After Bruen, the same issue reared its ugly head in another Ninth Circuit case, United States v. Duarte (9th Cir. May 9, 2024) F.4th (2024 U.S. App. LEXIS 11323.)  

In this case, defendant Steven Duarte tossed a firearm out of his vehicle’s window as officers were attempting a traffic stop for illegally tinted windows. Duarte had five non-violent prior felony convictions (vandalism,?P.C. § 594(a); felon in possession of a firearm,?P.C. § 29800(a)(1); possession of a controlled substance,?Health & Safety Code § 11351.5; and two convictions for evading a peace officer, Vehicle Code § 2800.1), thus making it a violation of 18 U.S.C. § 922(g)(1) for him to be carrying a gun.  

He appealed his conviction in federal court and the Ninth Circuit, in a decision authored by Justice Carlos T. Bea, concurred in by Justice Lawrence VanDyke, reversed Duarte’s conviction, taking into consideration for the first time (at least in the “felon with a firearm context”) Bruen’s mandated “two-step, text-and-history framework.” In its reversal, a 2-1 majority of Ninth Circuit ruled that the Vongxay case was wrongly decided. Because, as ruled by the majority, when you consider the historical context of the “felon in possession” issue as mandated by the second half of the legal analysis described in the Bruen decision, the possession of a firearm by someone with no worse than a non-violent felony on his record cannot constitutionally be precluded from possessing a firearm.  

In an extremely long and convoluted “historical” discussion of the Second Amendment (29 pages), discussing statutes that at least temporarily made illegal the possession of firearms by “British loyalists” or otherwise “disaffected” persons, Catholics, Indians, slaves, and “free Blacks,” the majority justices reached the conclusion that convicted felons (at least with non-violent felony convictions) should be included within this category. Duarte’s conviction was therefore reversed, the court telling us that “Duarte is an American citizen, and thus one of ‘the people’ whom the Second Amendment protects.” (pg. 73.)   

But as noted, there is a dissent to this decision, authored by Justice Milan D. Smith, Jr. In his dissent, Justice Smith submitted that Vongxay is still good law, not having been overruled by the U.S. Supreme Court. More importantly, Justice Smith points out that the Bruen decision never even hints at the idea that convicted felons should be included within the category of “law-abiding” citizens. To the contrary, Bruen specifically “limited its definition of the scope of the right to ‘law-abiding’ citizens, using that phrase no fewer than 14 times throughout the opinion.” (Pgs. 76-77, citing Bruen, at pages 9, 15, 26, 29-31, 33 fn.8, 38 & fn.9, 60, 70-71.) Justice Smith also describes U.S. Supreme Court Justice Samuel Alito’s separate concurrence in Bruen where he says “that Bruen?did not ‘disturb anything that [the court] said in Heller or McDonald about restrictions that may be imposed on the possession or carrying of guns.’...(making) clear: ‘All that we decide in this case is that the?Second Amendment?protects the right of?law-abiding?people to carry a gun outside the home for self-defense.’” (Italics in original; pgs. 77-78.) 

Justice Smith suggests that the U.S. Supreme Court needs to rule on the issue of whether felons, nonviolent or otherwise, fall within the protections of the Second Amendment. Should the High Court decide to do so in this case, it is my never-to-be-so-humble opinion that the Ninth Circuit will be reversed on this issue and Duarte’s conviction reinstated. For that, we will have to wait and see.