18 U.S.C. § 922(g)(1) Held Unconstitutional by Ninth Circuit

Since the United States Supreme Court issued its landmark decision in New York State Rifle & Pistol Ass'n Inc. v. Bruen, 142 S.Ct. 2111 (2022), federal defendants have been challenging the constitutionality of federal firearm laws under 18 U.S.C. § 922(g) with varying degrees of success. 

District and appellate courts have returned mixed results when presented with constitutional challenges to different subsections of the federal firearms statute. Since Bruen, courts have held the subdivisions of 922(g) unconstitutional including possession of a firearm by: noncitizens, unlawful drug users; and individuals under restraining orders. But charges under these subsections of the statute make up a very limited portion of federal defendants convicted under chapter 922.

The vast majority of federal firearms offenses are charged under 18 U.S.C. § 922(g)(1), which prohibits any individual who has previously been convicted of a crime punishable by one year from possessing a firearm. Countless appeals have been filed raising constitutional challenges to 922(g)(1) under Bruen's new framework to no avail.

Almost one year ago, the United States Court of Appeals for the Third Circuit held in a limited opinion that § 922(g)(1) was unconstitutional as applied to a defendant who had been previously convicted of one count of making a false statement to obtain food stamps in violation of Pennsylvania law. Range v. United States, 69 F.4th 96 (3d Cir. 2023). But the Third Circuit made sure to craft its opinion as narrow as possible, holding that 18 U.S.C. § 922(g)(1) was unconstitutional "only as applied to [Range] given his violation of 62 Pa. Stat. Ann. § 481(a)." Id. at 106. Thus, the Third Circuit's opinion changed nothing for thousands of other federal criminal defendants convicted under the same statute.

Enter the Ninth Circuit. On May 9, 2024, the Ninth Circuit Court of Appeals held § 922(g)(1) unconstitutional as applied to the defendant in United States v. Duarte, No. 22-50048 (9th Cir. May 9, 2024). Unlike the facts in Range, the defendant in Duarte had five prior felony convictions including: vandalism, felon in possession of a firearm, possession of a controlled substance, and evading a peace officer. 

Duarte was indicted by a federal grand jury and proceeded to trial. He was found guilty of being a felon in possession and sentenced to 51 months imprisonment. He appealed his conviction to the Ninth Circuit; however, Duarte did not raise his Bruen challenge in the district court. Normally, this would require the appellate court to apply the demanding standard of plain error review. However, the court applied the "good-cause standard" under Fed. R. Crim. P. 12(b)(4)(B)(c)(1) because the constitutionality of the statute is a defense or objection to the underlying criminal indictment.

The court found good cause for Duarte not raising the challenge in the district court because binding Ninth Circuit precedent foreclosed the issue. United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010). The question for the court then was whether the Supreme Court's decision in Bruen overturned Vongxay. The Ninth Circuit held it did. The court found that the reasoning of Vongxay could not be squared away with the Bruen decision. Thus, Bruen controls despite the Ninth Circuit's precedent.

The court next turned to the two-step Bruen analysis. The Ninth Circuit easily concluded that Duarte is of "the people" protected by the Second Amendment and possession of a handgun falls within its plain language. Bruen's second step required the government to prove that § 922(g)(1) "is part of the historical tradition that delimits the outer bounds of the" Second Amendment. Bruen, 597 U.S. at 19. The court of appeals concluded that the government failed to put forward a "well-established and representative historical analogue" that "impose[d] a comparable burden on the right of armed self-defense" compared to § 922(g)(1)'s prohibition. Id. at 29–30.

Accordingly, the Ninth Circuit held that 18 U.S.C. § 922(g)(1) was unconstitutional as applied to Duarte under the Bruen standard. Duarte's conviction was vacated and the judgment of the district court was reversed.

Experienced Federal Criminal Defense Attorneys

The decision in Duarte is yet another way courts across the country have interpreted and applied the Bruen framework to the federal prohibition of firearms statute, 18 U.S.C. § 922(g). In order to fight cases like these, it is essential to have experienced federal criminal defense attorneys who are up to date on the various changes Bruen has brought about. The lawyers at Newland Legal have significant federal criminal defense experience and can represent federal defendants across the country. If you are interested in speaking with a federal criminal defense attorney about your case, call or text us at (303) 948-1489 or email us at info@newlandlegal.com.