The Second Amendment and Non-Violent Felons

United States v. Williams (7th Cir., decided yesterday) (Judge Michael Kanne, joined by Judge Ilana Rovner and retired Justice Sandra Day O’Connor, sitting by designation) upholds — as usual — a conviction for being a felon in possession of a gun, but has this to add:

the government does not get a free pass simply because Congress has established a “categorical ban”; it still must prove that the ban is constitutional, a mandate that flows from Heller itself. Heller referred to felon disarmament bans only as “presumptively lawful,” which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge….

[A]lthough we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him. See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”). Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

Other judges have similarly suggested that some nonviolent felons may indeed retain (or regain, after enough time has elapsed after their felony) their Second Amendment rights. See United States v. Abner, 2009 WL 103172, *1 (M.D. Ala. Jan. 14); United States v. Davis, 2010 U.S. Dist. LEXIS 38750, *4 (W.D. Wis. Apr. 20); United States v. McCane, 573 F.3d 1037, 1049-50 (10th Cir. 2009) (Tymkovich, J., concurring); see also, as to state constitutions, Britt v. State, 681 S.E.2d 320 (N.C. 2009) (holding that a nonviolent felon whose crime was long in the past regained his state constitutional right to keep and bear arms); Wilson v. State, 207 P.3d 565, 570 (Alaska 2009) (Mannheimer, J., dissenting) (expressing the view that the state constitutional right to keep and bear arms limited the state’s power to disarm felons in some situations); Posey v. Commonwealth, 185 S.W.3d 170 (Ky. 2006) (Scott, J., concurring in part and dissenting in part) (same). But to my knowledge this is the first U.S. Court of Appeals decision expressing this view, and the presence of Justice O’Connor on the panel should further raise the profile of the case (though strictly speaking her vote has the same legal weight here as the vote of any circuit judge).

Thanks to Prof. Doug Berman (Sentencing Law and Policy) for the pointer.