Federal Ban on Felons Having a Gun Faces Appeals Court Scrutiny

A defendant convicted under a federal law barring felons from possessing a firearm argued to the Sixth Circuit Tuesday that the law doesn’t hold up under the Supreme Court’s 2022 Bruen decision—but the judges questioned if the issue had been properly preserved for their review.

Oral argument centered around whether the defendant, Robert Burrell, was timely in bringing his Bruen challenge so the US Court of Appeals for the Sixth Circuit could review it de novo rather than for a plain error in the lower court’s decision dismissing the challenge.

“It’s not quite clear what the law is on the felon-in-possession issue and because of that I’m inclined to say there’s not plain error, because the law is not clear here, so for you to win you need to establish that you preserved it,” Judge Richard Allen Griffin told Burrell’s attorney, Wade Fink, at oral argument.

The lower court dismissed Burrell’s motion challenging the constitutionality of law as untimely—but Burrell’s attorney argued to the Sixth Circuit that the lower court dismissal is unjust given that Bruen hadn’t been decided by the defense’s deadline.

Bruen was a “monumental shift” in Second Amendment jurisprudence, Fink argued.

“I know this was a monumental change in the law but the law changes all the time,” Griffin said. “If we were to accept your argument, whenever the law changes at some point later in the future, you can say, ‘Well I can timely move for it now even though I didn’t preserve it.’”

Fink said the Sixth Circuit could remand for the lower court to determine if there was a good cause for the delay in filing the challenge, or could find the delay amounted to ineffective assistance of counsel and allow Burrell’s constitutional challenge to proceed on that basis.

“My problem is Mr. Burrell shouldn’t be the one not heard on this issue,” Fink said.

Burrell is asking the court to nix his 2023 conviction for the offense and strike the statute—§ 922(g)(1)—as unconstitutional on its face or as applied to him.

The government Tuesday argued Burrell’s motion was untimely and, under the plain error standard, the court should uphold the lower court’s dismissal of the challenge and affirm Burrell’s conviction.

“There’s no basis for relief because as Judge Griffin pointed out, clearly it’s not a plain error,” said William Vailliencourt, arguing for the Department of Justice.

Divided Courts

The back-and-forth underscores the unsettled state of the law on the felon-in-possession statute in the wake of the US Supreme Court’s Bruen decision. The high court in Bruen said courts should look to the nation’s history of firearms regulation in determining if a gun law has run afoul of the Second Amendment.

The Ninth Circuit and Third Circuit have found the federal felon-in-possession statute doesn’t pass constitutional muster in some cases. The Ninth Circuit said the statute didn’t apply to a defendant with underlying convictions that “weren’t offenses by Founding era standards.” The Third Circuit found the statute couldn’t bar someone from buying a handgun.

The Eighth, Tenth, and Eleventh Circuits have rejected challenges to the law.

The Sixth Circuit in United States v. Carey ruled in 2010 that the felon-in-possession statute was constitutional under the Supreme Court’s 2008 Heller ruling.

A different Sixth Circuit panel is now considering a separate challenge to the constitutionality of the same statute in United States v. Goins.

Vailliencourt noted that the upcoming Goins ruling could “obviously have an impact on at least establishing what the law is and whether Carey remains valid"— so the panel could await that ruling before deciding Burrell’s case.

Fink argued the government is “banking its entire success on this appeal on timeliness.”

“The reason, in my view, the government has not really briefed the substantive issue of whether there’s a historical analog that justifies the permanent disarmament of felons is because there are none,” Fink said.

“The Goins case may answer that issue,” Judge Ronald Lee Gilman said.

“I want this panel to decide it,” Fink said. “Let’s beat them to the punch.”

“Maybe,” Gilman said. “You take your chances. We could be worse.”

Judge Andre B. Mathis was also on the panel.

Kostopoulos Rodriguez PLLC represents Burrell.

The case is United States v. Burrell, 6th Cir., No. 23-01261, oral argument 7/23/24.