A few passages from yesterday’s lengthy Third Circuit en banc ruling, authored by Judge Stephanos Bibas, in U.S. v. Bost (for a separate Third Circuit en banc decision issued yesterday that reached the opposite outcome on different facts, see Second Amendment Rights Not Forfeited by Past Drunk Driving Conviction):
The right to keep and bear arms carries limits, and one of them is this: individuals who pose a genuine risk of inflicting violence by misusing firearms may be disarmed before that danger comes to pass. Not every offender presents such a danger—but James Bost does. He admitted guilt to terroristic threats and related offenses. Years later, authorities found him with a pistol not once, but twice. Consequently, he faced charges for possessing a firearm despite his convictions, in violation of 18 U.S.C. § 922(g)(1), which prohibits felons from possessing guns….
Yet Bost’s violent conviction remains prima facie sufficient to justify disarming him. We hold that certain predicate offenses (such as Bost’s terroristic-threats conviction) reveal a prima facie risk of physical violence from the misuse of firearms, and those convicted of such offenses may be presumptively disarmed based solely on those convictions….
In 2002, Bost carjacked a person, threatening to kill the driver unless she handed over money. To obtain the money, he drove to her mother’s residence, where she fled from the car, crying out for help. Bost was subsequently arrested and pleaded guilty to terroristic threats and criminal conspiracy (as well as false imprisonment and simple assault). Those first two Pennsylvania offenses are first-degree misdemeanors punishable by up to five years in prison. One element of the terroristic-threats offense required “a threat to commit any crime of violence with intent to terrorize another.” Bost received a sentence of four years’ probation.
Later, while out on bail for another arrest, Bost failed to appear in court. U.S. Marshals tracked him down. They found him at his girlfriend’s home, beside a couch on which lay a stolen .38-caliber pistol. Bost was federally indicted for possessing a stolen gun and for possessing a gun despite his prior convictions (based on the terroristic-threats and conspiracy convictions). He moved to dismiss the indictment, arguing that § 922(g)(1) — the federal ban on felons possessing guns — is unconstitutional as applied to him and is facially unconstitutional….
The court allowed the case against Bost to proceed:
The Second Amendment secures the right of “the people” to “keep and bear Arms.” Since felons are part of “the people,” the amendment protects what § 922(g)(1) forbids—a felon’s possession of a gun. So the government must justify this restriction by comparing it to our nation’s historical tradition of gun regulation….
Two years ago, we held § 922(g)(1) unconstitutional as applied to a man with a prior conviction for food-stamp fraud. But we signaled a limit to that ruling, emphasizing that the government had no evidence that Range posed a risk of violence to others or that his crime “was closely associated with physical danger.” That aligned with the Supreme Court’s later ruling in Rahimi that, under a statute prohibiting such individuals from possessing guns, someone who poses “a clear threat of physical violence to another” may be disarmed. … Thus § 922(g)(1) remains constitutional insofar as it disarms offenders who pose a risk of physical violence from misusing guns.
Now we ask … how can the law address a risk of violence, focusing on the nature of the restriction, the process by which it is imposed, and its duration….
Historically, there were two routes to disarming people. One was individualized: A court determined that someone posed a risk of physical violence from misusing guns and disarmed him. The other was categorical: A statute targeted a disloyal segment of the population believed to threaten the community. In those scenarios, a member of the targeted group could often regain his rights by showing that he himself no longer posed a risk of violence.
Individualized judgment was the norm. For centuries, disarmament was tied to a judge’s finding that someone posed a risk of physical violence from misusing guns. Sometimes, that involved punishing risky behavior. Laws that prohibited carrying a weapon punished and disarmed those who used their arms to threaten others. Rooted in the old bans on affrays, they targeted conduct that spread fear and threatened public order: carrying a weapon “to the Terror of the People.” These laws were frequently enacted alongside bans on fighting, collectively targeting conduct likely to lead to violence.
Other laws, such as surety laws, aimed to prevent harm before it happened. If someone reasonably believed another person posed a risk of physical violence, including through the misuse of weapons, they could file a complaint with a magistrate. The magistrate would conduct a hearing, weigh the evidence, and decide whether the accused was likely to breach the peace. If the risk was real, the accused had to post a bond promising to keep the peace for up to six months. If he failed to post it, he would go to jail; if he breached the peace, he would forfeit the bond. In either case, the restraint was tailored to the individual’s risk….
Admittedly, some laws disarmed entire categories of people, but such examples are few, complex, and often discriminatory. Most founding-era prohibitions disarmed political enemies—groups deemed capable of organized rebellion. These measures were tied to allegiance and were often lifted once the perceived threat subsided. Moreover, many applied to groups lawmakers refused to treat as part of “the people” protected by the Second Amendment, such as slaves and American Indians. Both features meaningfully set these historical bans apart from today’s blanket ban on felons. Even so, their procedures for rearmament offer guidance…. [R]earmament was not automatic. Often the disarmed person had to show that he no longer posed a risk of violence…. [This paragraph, and the section containing it, earned only seven of fourteen total votes; Judge Tamika Montgomery-Reeves, who joined the majority, did not join this portion because it “relies on repugnant and discriminatory laws and procedures that would very likely violate the First and Fourteenth Amendments of the U.S. Constitution…. I question whether the invidious, and likely unconstitutional, laws underpinning these rearmament procedures are valid inputs for Bruen’s test. I need not answer that question, however, because less constitutionally infirm comparators reach the same conclusion.”]
Bost’s Violent Conviction Is, at This Early Stage, Sufficient to Demonstrate His Risk of Violence …
Some predicate offenses speak for themselves. Violent crimes, such as murder at common law, forcible rape, and common-law robbery, mark an individual as dangerous. And the carrying laws that disarmed people who behaved in a threatening manner were designed to prevent such conduct. These kinds of convictions are enough to justify disarmament. We do not require that the predicate violent or threatening crime itself involved firearms or a threat of firearms. For example, unarmed rapes can qualify.
Other predicate offenses speak for themselves in the opposite direction: They are not even physically dangerous, much less violent.
There may even be a third, middle-ground category: Some predicate offenses may be borderline. While they may not involve immediate violence, they can contribute to it and pose risks to the community. Whether these predicate offenses justify disarmament depends on their own historical analogies.
Thus, on either end of the spectrum, the predicate offense informs the court enough about the felon’s risk of physical violence to decide whether to dismiss a § 922(g)(1) indictment. In the middle, it is possible that courts will have to draw additional lines.
Nevertheless, we need not draw them today. Bost was convicted of terroristic threats. The elements of that offense include “a threat to commit any crime of violence with intent to terrorize another.” … That conduct sits squarely within the historical tradition of disarming those who threaten violence. It echoes the central aim of the going-armed laws: conduct that intimidates others and breaches, or risks breaching, the peace. Bost’s indictment is legally sufficient. And at this early stage, a court may only dismiss if the predicate conviction is legally insufficient to place the defendant into the category of individuals who pose a risk of physical violence from misusing weapons. We need not determine what, if anything, could later remove a defendant from that category….
Judge Patty Schwartz wrote a concurring opinion on the judgment; Judge Jennifer Mascott joined likewise. Judge Peter Phipps filed a dissent. All are worthy reads, as is the remainder of Judge Bibas’s opinion.
Donovan J. Cocas, Laura S. Irwin, and Vivek Suri argued on behalf of the government.
