85 F.4th 468
8th Cir.2023Background
- Eighth Circuit panel opinions in United States v. Jackson and United States v. Cunningham upheld convictions under 18 U.S.C. § 922(g)(1) (felon-in-possession) and the court denied rehearing en banc; Judge Stras filed a dissent from the denial.
- Central legal question: whether § 922(g)(1) is constitutional under the Bruen framework, which requires the government to show a regulation is consistent with this Nation’s historical tradition of firearm regulation.
- The panel (in Jackson) placed the burden on the challenger (the felon) to show his conviction does not justify disarmament and effectively curtailed as-applied challenges by felons.
- Judge Stras argues Bruen requires the government to identify historical analogues and that the historical record shows disarmament targeted dangerousness/rebellion (e.g., Loyalists, Native Americans, slaves, suspected Catholic insurgents), not mere felony status.
- Stras contends there were no Founding-era or long-standing traditions of lifetime felony-disarmament; early forfeitures targeted weapons used in crimes, and loyalty oaths provided a way to distinguish the dangerous from the non-dangerous.
Issues
| Issue | Plaintiff's Argument (Jackson / challenger) | Defendant's Argument (Government / panel) | Held |
|---|---|---|---|
| Who bears the burden under Bruen? | Government must demonstrate historical tradition justifying the regulation. | Panel shifted burden to the challenger to show his prior felony does not justify disarmament. | Panel placed burden on challenger; rehearing en banc denied (dissent argues this is error). |
| Whether § 922(g)(1) is supported by historical analogues | Historical practice disarmed persons based on dangerousness/rebellion, not felony status, so no analogue supports a categorical felon ban. | Historical statutes disarmed specific groups; those analogues support Congress’s authority to disarm felons. | Panel concluded statute consistent with history; dissent says the analysis was cursory and historically flawed. |
| Availability of as-applied Second Amendment challenges | As-applied challenges must remain available so non-dangerous felons can prove they fall outside historically disarmed classes. | Panel curtailed as-applied challenges, effectively foreclosing success for felons regardless of individual circumstances. | Rehearing denied; panel’s approach stands but dissent argues Bruen requires case-by-case review. |
| Role of Heller/Bruen dicta on felon bans | Heller’s assurances do not categorically immunize felon bans; Bruen’s historical test still governs. | Heller and portions of Bruen preserve longstanding prohibitions (including felon bans) as presumptively lawful. | Panel relied on Heller/Bruen assurances; dissent contends those do not replace Bruen’s historical-demanding test. |
Key Cases Cited
- New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) (establishes historical-tradition test and places burden on government to show historical analogue)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes individual right to bear arms and notes longstanding prohibitions presumptively lawful)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporates Second Amendment against states and repeats assurances about longstanding prohibitions)
- United States v. Jackson, 69 F.4th 495 (8th Cir. 2023) (panel opinion discussed here; upheld § 922(g)(1) and placed burden on challenger)
- United States v. Cunningham, 70 F.4th 502 (8th Cir. 2023) (companion Eighth Circuit decision applying similar reasoning)
- Range v. Att’y Gen. United States, 69 F.4th 96 (3d Cir. 2023) (en banc) (applied Bruen and held government failed to carry burden in similar felon-ban challenge)
- Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (dissent emphasized historical focus on dangerousness and rebellion rather than blanket felon bans)
- Binderup v. Att’y Gen. United States, 836 F.3d 336 (3d Cir. 2016) (explains framework for as-applied challenges by felons)
- Atkinson v. Garland, 70 F.4th 1018 (7th Cir. 2023) (recognizes government’s burden to show historical tradition under Bruen)
- Rahimi v. United States, 61 F.4th 443 (5th Cir. 2023) (applies Bruen historical inquiry to modern firearm regulation)