101 F.4th 657
9th Cir.2024Background
- Duarte was observed discarding a handgun from a moving car and was convicted under 18 U.S.C. § 922(g)(1) for possession of a firearm after having been previously convicted of crimes punishable by over one year; he had five prior nonviolent state convictions.
- He was tried, convicted by a jury, and sentenced to 51 months; he appealed raising a Second Amendment challenge under Bruen.
- The Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen replaced the old two-step/means-end scrutiny with a text-and-history (threshold text then historical-analogue) test for Second Amendment claims.
- The Ninth Circuit panel majority held that United States v. Vongxay (9th Cir. 2010) is clearly irreconcilable with Bruen under Miller v. Gammie and therefore no longer controls.
- Applying Bruen, the majority concluded (step one) that Duarte is among “the people,” the arm (handgun) and conduct (public possession for self-defense) fall within the Amendment’s plain text, and (step two) the Government failed to identify historical analogues justifying § 922(g)(1)’s categorical, lifelong ban as applied to a nonviolent, rehabilitated offender; conviction vacated.
- A dissent argued Vongxay remains binding, that Bruen did not eliminate felon exclusions, and that the majority improperly overruled circuit precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vongxay remains binding after Bruen and whether the panel may revisit § 922(g)(1) | Bruen established a new text-and-history mode of analysis that Vongxay did not apply, so Vongxay is clearly irreconcilable and must be overruled under Miller; de novo review is appropriate because Duarte had good cause for raising the claim on appeal | Vongxay still controls; Bruen did not displace Vongxay; plain-error review should apply because the challenge was not raised below | Majority: Vongxay is abrogated under Miller; Duarte showed good cause so de novo review applies; dissent would retain Vongxay and apply it |
| Whether Duarte (a nonviolent, formerly convicted felon) is among “the people” protected by the Second Amendment (Bruen step one) | "The people" means all Americans/citizens; felons are not textually excluded simply by conviction | Government: Bruen’s repeated references to “law-abiding, responsible citizens” imply felons fall outside “the people” | Majority: Duarte (as an American citizen) is part of “the people”; the Amendment’s plain text covers him, the arm, and the conduct |
| Whether § 922(g)(1)’s categorical lifetime ban is consistent with the Nation’s historical tradition of firearm regulation (Bruen step two) | The Government failed to identify well-established, representative historical analogues that imposed a comparable, lifelong, no-exception ban on nonviolent offenders; historical prohibitions targeted disloyal or dangerous groups and often were temporary or case-specific | Government: Founding-era laws (oath-or-disarm for Loyalists, restrictions on certain groups, capital/forfeiture punishments for felonies) justify modern felon bans as analogues | Majority: Government did not meet its burden; analogues relied on different "how" and "why" (e.g., wartime loyalty, group-danger, race/religion-based exclusions) and do not justify § 922(g)(1) as applied to Duarte; statute unconstitutional as applied |
| Remedy / disposition | Reverse conviction and vacate sentence as § 922(g)(1) unconstitutional as applied | Affirm conviction | Majority: Reverse and vacate; Dissent: would affirm under Vongxay |
Key Cases Cited
- New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (announcing text-and-history framework for Second Amendment challenges)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (holding the Second Amendment protects an individual right to possess firearms for self-defense)
- United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) (upholding § 922(g)(1); relied on pre-Bruen analytical approaches)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (panel precedent may be rejected when an intervening higher authority is clearly irreconcilable)
- United States v. Phillips, 827 F.3d 1171 (9th Cir. 2016) (applied circuit precedent to assess whether a specific predicate offense could support § 922(g)(1))
- United States v. Younger, 398 F.3d 1179 (9th Cir. 2005) (earlier circuit decision treating felon prohibitions as permissible)