The Supreme Court’s conservative supermajority has cut back extensively on criminal defendants’ ability to seek relief from harsh sentences or convictions based on Constitutional violations. In the past few terms, the Court has diluted Miranda protections, narrowed the rights of victims to bring Constitutional claims against government offenders, and largely ignored death row cases even when there was an innocence claim. With many of the Justices expected to have a long tenure, many defenders are leaning into its preferred originalist style argument and using recent originalist wins, such as the expansion of second amendment freedoms under New York Rifle and Pistol Association v. Bruen, to promote criminal justice reform.
In 2022 the Court heard Bruen, where Justice Thomas, writing for the majority, found that a New York law requiring individuals to demonstrate a special need for self-defense to carry a concealed handgun was unconstitutional because the government failed to show that the regulation was consistent with the nation’s historical tradition of firearm regulation. Among the conservative activists and gun rights groups signing on as an amicus curiae, a group of Black public defenders submitted an amicus brief in support of the Petitioners arguing for expanded Second Amendment protections due to disparate treatment their clients receive under existing firearms laws. Although the Court decided for Bruen, the disparate treatment discussed in the Black public defenders’ amicus brief was not acknowledged. With the legal landscape surrounding firearm possession evolving rapidly, a clear dichotomy has risen between those whose gun ownership is being protected by the Courts and whose remains are illegal and strictly enforced.
Post-Bruen decisions have clarified what “the nation’s historical tradition of firearm regulation” means but have failed to decisively rule on criminal statutes. The Court came close in United States v. Rahimi, where Chief Justice Roberts, writing for the 8-1 majority, held that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment. The concept of dangerousness leaves yet another unanswered question in the court's Second Amendment analysis. This has left many lower courts to decide how this applied to criminal statutes, more specifically, laws criminalizing felons in possession of firearms (“felon in possession” statutes). Many public defenders have returned to the arguments made in the amicus brief filed in Bruen bringing a constitutional challenge against felon in possession statutes.
Several appeals courts, including in the Eighth and Eleventh Circuits, have struck down challenges to felon in possession statutes citing Bruen, finding these bans constitutional. However, in the Third Circuit, a U.S. Court of Appeals judge was persuaded that a felon gun ban was unconstitutional in the case of a man with a previous conviction for food stamp fraud. Although the Court has not had the opportunity, nor would they be likely to take up a case this term, now-sitting Supreme Court Justice Amy Coney Barrett has previously written a dissent supporting the restoration of gun rights to nonviolent felons as an appeals judge for the Seventh Circuit. Barrett is not the only justice among Trump’s appointees to find merit in constitutional claims to felon in possession statutes, holding in the Sixth Circuit that only people with felony convictions who are shown to be “dangerous” can be disarmed. Public defenders and legal scholars have taken note of this uncharacteristic sense of mercy toward criminal defendants on this specific issue, and note its potential importance in expanding since abandoned reform efforts.
With many media outlets and politicians returning to tough-on-crime rhetoric in the past election cycle, and a Court unsympathetic to criminal defendants, Bruen could provide a much-needed safety valve for nonviolent individuals stuck in the draconian criminal legal system. Namely, those in communities targeted by the War on Drugs, represent the majority of those who possess firearms. These communities are disproportionately impacted without meaningful evidence that such individuals are actually dangerous or that imposing restrictions would improve public safety. Legal experts at the Duke Center for Firearms Law have focused on the recent development in the dangerousness of people standard in particular and highlighted the lack of constitutional clarity in banning gun possession among entire categories of people when their convictions were for nonviolent offenses that posed no obvious danger to the public. Despite the limited success of defense attorneys litigating the issue, the rapidly changing legal landscape surrounding firearms does indicate that Bruen could be a viable avenue for litigants who are otherwise unable to challenge the constitutionality of their treatment or conviction.
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