10th Circuit Says SCOTUS Didn’t Invalidate Gun Bans for Felons

A recent US Supreme Court ruling clarifying the right to carry guns in public didn’t overrule a Tenth Circuit decision upholding the constitutionality of the ban on firearm possession by felons.

The Supreme Court, in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, “created a new test for determining the scope of the Second Amendment,” the US Court of Appeals for the Tenth Circuit said in an opinion by Judge Robert E. Bacharach.

The high court, however, “didn’t appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons,” Bacharach said. “If anything, Bruen contains two potential signs of support for these prohibitions,” he said.

Melynda Vincent argued that barring her from possessing a firearm based on her conviction for a non-violent felony is unconstitutional. Because the Tenth Circuit’s ruling in US v. McCane remains good law, Bacharach said, “we have no basis to draw constitutional distinctions based on the type of felony involved.”

“Six of the nine Justices pointed out that Bruen was not casting any doubt on” the language in its 2008 ruling in District of Columbia v. Heller, in which it “appeared to recognize the constitutionality of longstanding prohibitions on possession of firearms by convicted felons,” Bacharach said.

The court in Bruen also “apparently approved the constitutionality of regulations requiring criminal background checks before applicants could get gun permits,” Bacharach said.

In Bruen, the court struck down state regulations that had required the showing of a special need before someone could get a license to carry a gun.

But in Bruen the high court added that it wasn’t questioning the constitutionality of “shall-issue” licensing regimes, where licensing authorities must issue a concealed carry license if an applicant satisfies certain criteria.

“In preserving ‘shall-issue’ regimes and related background checks, the court arguably implied that it was constitutional to deny firearm licenses to individuals with felony convictions,” Bacharach said.

“Given the six Justices’ reaffirmation of the Heller language and the court’s apparent approval of ‘shall-issue’ regimes and related background checks, we conclude that Bruen did not indisputably and pellucidly abrogate our precedential opinion in McCane.”

Under the Bruen test, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

In a separate concurring opinion, Bacharach said “even if it were possible for the Supreme Court to implicitly abrogate our precedent, the court didn’t do so in Bruen.”

Judges Joel M. Carson and Paul J. Kelly Jr. joined the majority opinion.

Goebel Anderson PC and Jeremy M. Delicino in San Diego represent Vincent.

The case is Vincent v. Garland, 10th Cir., No. 21-4121, 9/15/23.