Fifth Circuit Affirms Rahimi’s “dangerousness” standard in a § 922(a)(1) dispute
On June 2, the Fifth Circuit issued its ruling in United States v. Squire, raising a fresh question: does the Second Amendment shield a convicted drug trafficker from losing a firearm inside his residence in light of our country’s historical approach to regulating firearms? As Senior Judge Edith Brown Clement explained in the opinion, “our historical tradition supports disarming drug traffickers based on their dangerousness….”
Police, suspecting Squire’s involvement in a shooting in New Orleans, obtained a warrant to search his home, where a handgun was recovered. Although the handgun was not linked to the shooting, Squire faced a felon-in-possession charge under 18 U.S.C. § 922(g)(1) based on prior convictions for conspiracy and substantive counts of possession with intent to distribute heroin, possession of a firearm with a controlled dangerous substance, and obstruction of justice. He had, in addition, been convicted of a conspiracy count to possess stolen property, and in another matter, burglary and unauthorized use of a motor vehicle.
Earlier Fifth Circuit precedent had recognized § 922(g)(1) as unconstitutional as applied to certain felons, noting that merely labeling a crime a felony does not meet the historical rigor required by Bruen and its progeny. Non-violent felonies such as marijuana possession without evidence of current intoxication were subject to as-applied challenges. The court stressed that “If Congress could escape Bruen’s reach by simply classifying a crime as a felony, we would be confined to uncritically rubber-stamping class-based determinations, subjecting disarmament laws to a form of rational-basis, government-always-wins, type of review.” Those remarks carry substantial weight.
By contrast, predicate offenses involving dangerous or violent conduct justified disarmament. For that proposition, the court saw no need to marshal an empirical demonstration that heroin trafficking while armed is dangerous and violent. Drug gangs wage war with rivals and with law enforcement. Drug traffickers use threats of violence, and actual violence, to enforce their illicit trades and to protect their territories. Moreover, heroin itself is a poison, and users frequently overdose and die. A heroin trafficker thus poses a direct physical danger to others.
Instead, the Squire court carried out the standard Bruen analysis of historical analogues, having already concluded that Squire’s ability to possess a firearm in his home fell within the plain text of the Second Amendment. The English Militia Act of 1662 authorized disarming “dangerous and disaffected persons,” even though, as Rahimi notes, the Glorious Revolution curtailed the Crown’s power to do so. Catholics were disarmed for disloyalty to the government, and during the American Revolution, those who refused to take an oath of allegiance were disarmed.
Native Americans and African Americans were also disarmed. While employing these analogues is fraught, the court explains: “Granted, these repugnant laws classifying people as dangerous simply on the basis of their race or religion are wrong and unconstitutional under the Fourteenth Amendment…. Nevertheless, these laws provide a glimpse into how early Americans understood their right to bear arms, how the legislature could designate groups as dangerous, and the scope of their disarmament.”
The Supreme Court should seize the opportunity in Wolford, a case concerning Hawaii’s “vampire rule” that largely bars Second Amendment rights in most public settings, to repudiate the use of racist historical analogues. My amicus brief in Wolford on behalf of the African American Gun Association develops that argument in detail, drawing on an 1865 Louisiana Black Code provision. And as Justice Kavanaugh wrote in his concurrence in Rahimi: “Ratified in 1868, [the Equal Protection] Clause sought to reject the Nation’s history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution.”
Squire had attempted to distinguish his case on the ground that he carried the handgun at home, but the court found that argument is “mugged by the reality that our historical laws support his disarmament, even in the special confines of his home.” (I suspect that “mugged” is a term Squire would understand.) The court concluded that “§ 922(g)(1) as applied to drug traffickers permits arms dispossession based on dangerousness, not location.” This is a narrow ruling, since “We do not decide whether the Second Amendment permits Congress to disarm individuals in the home based on convictions lacking a closely related historical analogue to dangerousness, violence, or threats to public order.”
The panel distinguished other jurisdictions that have refused to recognize any as-applied challenge to the felon-in-possession ban by drawing a basic distinction between dangerous and violent crimes and mala prohibita, victimless offenses like mere possession of marijuana. The question before the Supreme Court when it rules on Hemani, which asks whether 18 U.S.C. § 922(g)(3), the federal provision prohibiting firearm possession by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment as applied to the respondent, will further illuminate this issue. See my discussion elsewhere about that case.
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In footnote 1 of Squire, Judge Clement rejected the argument that the ban exceeds Congress’s power under the Commerce Clause as foreclosed by circuit precedent. Efforts to curb Congress on the issue once included U.S. v. McFarland (2002), where an evenly divided, en banc Fifth Circuit left intact a district court ruling upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, as applied to a defendant who robbed local convenience stores with no interstate-commerce nexus. Guided by the Supreme Court’s decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent. The question remains: will the Supreme Court ever revisit the premise that local crime does not constitute interstate commerce?
