Gun Crime Defense Constitutional Rights
Some of the most common federal criminal prosecutions involve guns. The federal government has written broad rules criminalizing the possession, transfer, ownership, and handling of guns that impact citizens across the United States. The same thing is true of Colorado gun crimes.
What does the Second Amendment say about these federal gun prosecutions? Are there constitutional rights which protect the people of the United States from overreaching criminal prosecutions?
The short answer is, yes, but not always.
At Newland Legal, our attorneys are on the cutting edge of this newly developing area of constitutional defense. Principal attorney Zachary Newland and his colleague Catherine Turner of Minneapolis have already written an exhaustive analysis of Second Amendment defense which is forthcoming in the monthly National Association of Criminal Defense Lawyer’s magazine.
Recently, the U.S. Court of Appeals for the Fifth Circuit weighed in on the issue of Second Amendment defense and ushered in a sea change for criminal gun defense attorneys. This short blog post will give an overview of the recent Bruen Supreme Court case, the Rahimi decision, and what your Colorado gun lawyer needs to know to fight for your rights.
Bruen: History, Tradition, and Text Oh My!
In 2022, the United States Supreme Court issued a blockbuster opinion in New York State Rifle & Pistol Association, Inc. v. Bruen. 142 S. Ct. 2111, 2127, 213 L. Ed. 2d 387 (2022).
Bruen involved a constitutional challenge to a state law requiring people to show a specified need prior to obtaining a handgun license. The U.S. Supreme Court ultimately ruled that the particular state law violated the Second Amendment right to keep and bear arms. Bruen was important in the criminal defense context for how the Supreme Court told lower courts to evaluate laws which implicate Second Amendment rights.
According to the U.S. Supreme Court, courts can no longer use a balancing test to measure the amount of burden that a restriction places on a Second Amendment right. Instead, the relevant questions are (1) is the conduct protected by the plain meaning of the Second Amendment, and (2) is the Government’s regulation consistent with the nation’s historical tradition of firearm regulation?
Rules For Evaluating Criminal Gun Laws Under Second Amendment
After Bruen, lower courts are left to employ what this author colloquially calls a two-step with fancy footwork.
Step One: First, lower courts are required to ask a strictly textual question. Does the Second Amendment’s plain text cover the defendant’s conduct which a particular law is making illegal?
If the answer is yes, you can move on to step-two. If the answer is no, then the conduct is not protected by the Second Amendment and the regulation is lawful.
Step Two: Second, the Government bears the burden of justifying the regulation (or criminal law) as consistent with the history and traditions of firearm regulation in the country based on evidence from at or near the time the Second Amendment was ratified in 1791.
Step two starts with this question: does the regulation address a longstanding “perceived societal problem” that the founders could have addressed but either (a) did not address or (b) addressed through materially different means? If yes, then the modern regulation violates the constitution and is unconstitutional unless it is “distinctly similar” to the historical regulations.
If the regulation (criminal gun law) addresses a societal problem that is “unprecedented” and would have been unimaginable at the time of the founding, then the historical analysis gets more complicated. In these instances, the Government may point to analogous regulations that are “relevantly similar” to try and uphold the law.
Rahimi: Bad Facts Don’t Change Constitutional Rights
Lower courts are struggling to apply Bruen in the context of federal criminal gun cases. People facing federal gun charges have been told for decades that the constitution does not protect their rights. Broad sweeping criminal laws were used to prosecute tens of thousands of citizens without looking at the Second Amendment for even a New York minute.
Zackey Rahimi was, by all accounts, a deeply troubled man who committed a string of serious firearm crimes. Before Rahimi embarked on his criminal spree, he agreed to a civil protection order (restraining order) entered by a state court after he allegedly assaulted his girlfriend. The restraining order prohibited Rahimi from possessing a firearm even though he did not have any criminal convictions.
Rahimi was indicted by a federal grand jury for possessing a firearm while under a domestic violence restraining order. This is a specific federal crime found at 18 U.S.C. § 922(g)(8) and carries stiff penalties of years in federal prison.
Rahimi filed a motion to dismiss the indictment arguing that the law (922(g)(8)) was unconstitutional because it violated his Second Amendment right to possess a firearm. That motion was denied and Rahimi pleaded guilty while reserving his right to appeal this issue.
On direct appeal Rahimi lost the first time. The Fifth Circuit Court of Appeals upheld the law. However, after Rahimi lost his appeal the Bruen decision was issued by the U.S. Supreme Court. Rahimi asked the Fifth Circuit to reconsider in light of the Bruen decision and the Fifth Circuit took the invitation.
Rahimi Redux: Second Amendment Trumps Criminal Gun Laws
In Rahimi, a panel of the Fifth Circuit struck down 922(g)(8) as unconstitutional when they re-heard Mr. Rahimi’s appeal. The analysis in Rahimi was important for all criminal defense gun lawyers because the Fifth Circuit is the first court to address a criminal statute post-Bruen on the merits.
First, the Fifth Circuit addressed the Government’s argument that Rahimi was not among the class of people entitled to the Second Amendment’s protections. The Government argued that the protections of the Second Amendment were only applicable to certain “law-abiding responsible citizens.”
According to the Government, because Rahimi was neither responsible nor law-abiding, he fell outside the scope of the protections offered by the Second Amendment. Therefore, the Government argued that 18 U.S.C. § 922(g)(8) was constitutional as applied to Mr. Rahimi.
The Fifth Circuit dismissed this argument handily. According to the Rahimi court, the Government’s argument was (1) inconsistent with the text of the Second Amendment, (2) it inexplicably treated Second Amendment rights differently than other individual constitutional rights and (3) it had no limiting principles. As a result, Rahimi’s conduct was covered by the Second Amendment and the court was able to move on to Bruen step-two.
Gun Crime Defense: Historical Tradition?
In order to evaluate § 922(g)(8)’s constitutionality, the Government had to identify a “well-established and representative historical analogue” to the current law. Bruen directed two metrics for courts to compare the Government’s analogues: (1) how the challenged criminal gun law burdens the right to armed self-defense, and (2) why the law burdens that right.
The question, according to the Rahimi court, is whether the federal criminal gun law fell within the historical tradition of firearm regulations or outside of that tradition. The court explained that the essence of § 922(g)(8) is to deprive someone of their right to possess firearms once the court finds that the person poses a “credible threat” to an intimate partner and enters a restraining order. Then, that person forfeits his Second Amendment right for the duration of the restraining order. The right is forfeited even when the individual has not been criminal convicted of any crime.
The Fifth Circuit determined that the Government failed to demonstrated that § 922(g)(8)’s restriction of the Second Amendment right fit within our Nation’ historical tradition of firearm regulation. As a result, that law runs afoul of Bruen and violates the constitution on its face. The statute was held unconstitutional and Rahimi’s conviction was vacated.
Takeaway: Gun Crime Lawyers Need To Know
Rahimi was the first U.S. Court of Appeals decision to strike down a gun crime law since Bruen was issued. Gun crime lawyers need to read Rahimi; then read it again; then read it again. When your clients are charged with a gun crime, you must be prepared to make constitutional challenges to properly defend them.
Gun crime attorneys need to also be prepared to stay up to date on other areas of constitutional challenges beyond the U.S. Courts of Appeals. For instance, just last week another U.S. District Court agreed with arguments presented by defense lawyers where their client was charged with a gun crime. That district court held that another part of federal criminal law restricting gun possession for users marijuana was unconstitutional.
Make sure that your attorney is prepared to make constitutional challenges and is up to date with this quickly evolving area of law if you are charged with a gun crime.
Colorado gun crime lawyers need to be similarly evaluating state laws that restrict an individuals Second Amendment rights. Gun crime attorneys in Colorado know that there is a state law criminalizing possessing a firearm while subject to a civil protection order. See C.R.S. § 13-14-105.5.
The reasoning used in Rahimi should be equally applicable to prosecutions raised under the Colorado law as well. Similarly, Colorado gun crime attorneys should be evaluating every single case carefully for ways to use Rahimi to get charges against their clients dismissed. Colorado state prosecutions are just as subject to constitutional protections as federal gun crimes are.
Colorado Gun Crime Attorneys Ready To Fight
It is incredibly difficult and complicated to get a case dismissed because a law violates your Second Amendment rights. The case law is changing every day. You need a lawyer who is experienced in fighting for constitutional rights all over the country if you want to have your best chance at beating your gun crime charges.
Do you or your loved one in federal criminal court or Colorado state court need to talk to a gun crime lawyer? If so, contact the experienced federal defense attorneys of Newland Legal at (303) 948-1489 or by email to zach@newlandlegal.com to discuss your case today.
Contact the attorneys at Newland Legal today if you have a federal criminal court case need and legal help The attorneys at Newland Legal are experienced federal criminal defense attorneys who are not afraid to fight in any federal courtroom across the United States.
