Yesterday, in an order denying a motion to dismiss by Attorney General of the United States Loretta Lynch, Southern District of Illinois District Court Judge John Phil Gilbert ruled that plaintiff Larry Hatfield – "a convicted felon having pleaded guilty to, and was convicted of, one count of making false statements with regard to benefit claims under the Railroad Unemployment Insurance Act" – can proceed in a case challenging (as applied to Hatfield) 18 U.S.C. § 922(g)'s lifetime ban on the possession of firearms and ammunition.
18 U.S.C. § 922(g) states that:
"It shall be unlawful for any person [ ] who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year [ ] to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
Hatfield is also prohibited from possessing firearms under Illinois law. And while the state's law does contain a provision under which Hatfield and others "prohibited from possessing a firearm under Sections 24-1.1 or 24- 3.1 of the Criminal Code of 2012 or acquiring a Firearm Owner's Identification Card....may apply to the Director of State Police or petition the circuit court in the county where the petitioner resides, whichever is applicable in accordance with subsection (a) of this Section, requesting relief from such prohibition," Hatfield cannot because 18 U.S.C. § 922 would still apply.
The United States government had argued that "categorical bans on felony possession of firearms have been found to be constitutional and as such, plaintiff’s complaint fails to state a claim upon which relief can be granted."
But Judge Gilbert, quoting United States v. Williams, didn't agree:
Therefore, “we follow the en banc majority's holding that some categorical bans on firearm possession are constitutional. But 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. Therefore, putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper.” United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010) (referencing D.C. v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)).
Ultimately, Judge Gilbert properly denied the motion and shifted the burden of proof back to the government, allowing the case to move forward to discovery and dispositive motions or a trial:
Whether the defendant can meet its burden of demonstrating that § 922, as applied to the plaintiff, passes constitutional muster goes to the merits of this matter and is not ripe for analysis within a Rule 12(b)(6) motion.
Importantly, Judge Gilbert highlighted in his order a serious problem that Congress and President-elect Trump should immediately work to fix:
It would appear that there is a federal procedure, along with a means of review, to seek restoration of an individual’s right to possess a firearm. However, since 1992, the Bureau of Alcohol, Tobacco and Firearms (“ATF”) who has delegated authority to act on § 925 applications, has been barred by appropriations from investigating or acting upon applications by individuals for relief under § 925. (“That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c)”. Treasury, Postal Service, and General Government Appropriations Act, 1993, Pub.L 102–393, October 6, 1992, 106 Stat 1729.[FN1]) Therefore, such relief is actually unavailable to the plaintiff due to appropriation restrictions.
FN1: To date, Congress has subsequently retained the restrictions of funds.
Earlier this year, in Baer v. Lynch (a nonprecedential decision of the 7th Circuit), that court stated that:
Baer's principal contention, though, is that § 922(g)(1) violates his rights under the Second Amendment because, by his account, he is rehabilitated and "no more of a threat to the public than an average citizen." In District of Columbia v. Heller, 554 U.S. 570, 626-27 & n.26 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 786 (2010), the Supreme Court made clear that categorical bans on firearm possession do not necessarily offend the Second Amendment and that some bans, including the one at issue here, are presumptively valid. See also Skoien, 614 F.3d at 640. We have left open the possibility that a felon might be able to rebut that presumption by showing that a ban on possession is overbroad as applied to him. See United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010) (suggesting 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"). [FN2]
FN2: The courts of appeals are split on this question. A number have assumed that the presumption is rebuttable, United States v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014); Schrader, 704 F.3d at 991; United States v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012); United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011); Barton, 633 F.3d at 174, while others apparently have concluded that a ban on possession by felons always is constitutional, United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010); United States v. Rozier, 598 F.3d 768, 770-71 (11th Cir. 2010); United States v. Vongxay, 594 F.3d 1111, 1115-18 (9th Cir. 2010); United States v. Anderson, 559 F.3d 348, 352 & n.6 (5th Cir. 2009); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009).
(Bold emphasis added.)
And this issue might soon be taken up by the United States Supreme Court.
On November 21, Justice Alito granted a request by the government to extending the time to file a petition for a writ of certiorari until January 5, 2017 in the matter of Binderup v. Lynch (case no. 16A510). Previously, on September 7, 2016, the 3rd Circuit (sitting en banc) ruled that "upon close examination of the Challengers’ [Daniel Binderup and Julio Suarez] apparently disqualifying convictions, we conclude that their offenses were not serious enough to strip them of their Second Amendment rights."
The order denying the motion to dismiss in Hatfield v. Lynch can be viewed here.