80 F.4th 1197
10th Cir.
2023

MELYNDA VINCENT, Plаintiff - Appellant, v. MERRICK B. GARLAND, Attorney General of the United States, Defendant - Appellee.

No. 21-4121

United States Court of Appeals for the Tenth Circuit

September 15, 2023

PUBLISH. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:20-CV-00883-DBB)

Sam Meziani, Goebel Anderson PC, Salt Lake City, Utah (Amberly Page, Goebel Anderson PC, Salt Lake City, Utah, and Jeremy Delicino, Jeremy Delicino LLC, Salt Lake City, Utah, with him on the briefs), for Plaintiff Appellant.

Kevin Benjamin Soter, Attorney, Appellate Staff (Trina A. Higgins, United Statеs Attorney, Brian M. Boynton, Principal Deputy Assistant Attorney General, Mark B. Stern, Michael S. Raab, Abby C. Wright, Attorneys, Appellate Staff, U.S. Department of Justice, Washington, D.C., with him on the brief), for Defendant-Appellee.

Before BACHARACH, KELLY, and CARSON, Circuit Judges.

BACHARACH, Circuit Judge.

Roughly 50 years ago, Congress banned the possession of firearms by convicted felons. Gun Control Act of 1968, § 922(h)(1), Pub. L. No. 90 618, 82 Stat. 1213, 1220 (codified as amended at 18 U.S.C. § 922(g)(1)). After Congress enacted this ban, the Supreme Court held that the Second Amendment guarantees a personal right to possess firearms. District of Columbia v. Heller, 554 U.S. 570, 595 (2008). Based on the Court‘s language, we upheld the constitutionality of the ban on convicted felons’ possession of firearms. United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009).

The Supreme Court has recently creаted a new test for the scope of the right to possess firearms. N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111, 2129-30 (2022). Based on the Supreme Court‘s creation of a new test, the plaintiff challenges the constitutionality of the ban when applied to individuals convicted of nonviolent felonies. To resolve this challenge, we must consider whether the Supremе Court‘s new test overruled our precedent. We conclude that our precedent has not been overruled.

1. The plaintiff challenges the ban after conviction of a nonviolent felony.

The plaintiff is Ms. Melynda Vincent, who was convicted of a nonviolent felony (bank fraud). Because of this conviction, Ms. Vincent can‘t possess a firearm for the rest of her life. See 18 U.S.C. § 922(g)(1). Ms. Vincent challenges that prohibition, arguing that it violates the Second Amendment rights of nonviolent felons like herself.1

2. The Supreme Court hasn‘t expressly abrogated our precedent on the constitutionality of the federal ban.

To resolve this challenge, we must consider thе scope of the Second Amendment. This amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. For over two centuries, the nature of this right was uncertain. In 2008, however, the Supreme Court clarified this right in District of Columbia v. Heller, 554 U.S. 570 (2008). There the Court focused on the text and history of the Second Amendment, concluding that it guarantees a right to bear arms unconnected with service in the militia. Id. at 579-92. The Court observed that it wasn‘t “cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626. We applied this observation in United States v. McCane to uphold the constitutionality of the federal ban on felons’ possession of firearms. 573 F.3d 1037, 1047 (10th Cir. 2009). The district court was obligated to apply our precedent. United States v. Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir. 1990). So the court applied McCane and dismissed Ms. Vincent‘s challenge to the constitutionality of the federal ban. In considering that dismissal, we conduct de novo review. Christy Sports, LLC v. Deer Valley Resort ‍‌‌​‌‌​‌​​​​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​​‍Co., 555 F.3d 1188, 1191 (10th Cir. 2009). To conduct de novo review, we must consider the current caselaw even if it didn‘t exist when the district court ruled.

That caselaw includes N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), where the Supreme Court addressed the scope of the Second Amendment.2 In Bruen, the Court concluded that the Second Amendment prohibits a state from requiring gun owners to demonstrate a special need in order to obtain a license to carry a firearm in public. Id. at 2134-35, 2156. Ms. Vincent argues that Bruen abrogated our precedential opinion in McCane.

Like the district court, we‘re generally obligated to apply our own precedents. United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021). But an exception exists when the Supreme Court has issued an opinion contradicting or invalidating the analysis in our precedent. United States v. Brooks, 751 F.3d 1204, 1209-10 (10th Cir. 2014). So we must decide whether the Supreme Court‘s opinion in Bruen contradicted or invalidated our analysis in McCane.

In Bruen, the Supreme Court created a test requiring consideration of two questions:

  1. Does the Second Amendment‘s plain text cover an individual‘s conduct?
  2. If the answеr is yes, has the government justified the ban by showing that it‘s consistent with the nation‘s “historical tradition of firearm regulation“?

142 S. Ct. at 2129-30.

This test didn‘t exist when we decided McCane. But the emergence of a new test doesn‘t necessarily invalidate our earlier precedent. We addressed a similar issue in Barnes v. United States, 776 F.3d 1134 (10th Cir. 2015). The issue there involved the jurisdictional nature of the Federal Tort Claims Act‘s statute of limitations for suits brought against the United States. Prior to Barnes, we had held that the statute was jurisdictional. Casias v. United States, 532 F.2d 1339, 1340 n.1 (10th Cir. 1976). But the Supreme Court later created a new framework to assess the jurisdictional nature of statutes of limitations in suits brought against the United States. Sebelius v. Auburn Reg. Med. Ctr., 568 U.S. 145, 153-54 (2013). Though we hadn‘t used that framework for the Federal Tort Claims Act‘s statute of limitations, we applied our earlier precedent because the Supreme Court‘s new framework hadn‘t contradicted or invalidated our prior characterization of the FTCA‘s statute of limitations. Barnes, 776 F.3d at 1147-48.

Under Barnes, we can‘t jettison McCane just because it might have been undermined in Bruen. Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1142 (10th Cir. 2023). We must instead determine whether Bruen indisputably and pellucidly abrogated McCane. Barnes, 776 F.3d at 1147.3

In Bruen itself, the Supreme Court didn‘t address the ban on felons’ possession of firearms. The Court instead addressed the constitutionality of a New York licensing scheme for carrying a handgun in public. N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111, 2122-24 (2022). In addressing that licensing scheme, the Court articulated a historical test for the scope of the Second Amendment‘s right to bear arms. Id. at 2129-30. For that test, the Court drew upon District of Columbia v. Heller, which had recognized a personal right to bear arms. 554 U.S. 570, 595 (2008). In recognizing that right, the Supreme Court considered the text and historical origins of the Second Amendment. Id. at 605-20. After this historical discussion, the Court noted that

  • “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” and
  • felon dispossession statutes are “presumptively lawful.”

Id. at 626-27 & n.26.

In McCane, we relied solely on this language from Heller,4 reasoning that the Supreme Court had appeared to recognize the constitutionality of longstanding prohibitions on possession of firearms by convicted felons. 573 F.3d 1037, 1047 (10th Cir. 2009).

Though Bruen created a new test for determining the scope of the Second Amendmеnt, the Court didn‘t appear to question the ‍‌‌​‌‌​‌​​​​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​​‍constitutionality of longstanding prohibitions on possession of firearms by convicted felons. If anything, Bruen contains two potential signs of support for these prohibitions. First, six of the nine Justices pointed out that Bruen was not casting any doubt on this language in Heller. N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111, 2157 (2022) (Alito, J., concurring); id. at 2162 (Kavanaugh, J, concurring, joined by Roberts, C.J.); id. at 2189 (Breyer, J., dissenting, joined by Sotomayor and Kagan, JJ.).5

Second, Bruen apparently approved the constitutionality of regulations requiring criminal background checks before applicants could get gun permits. 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. 142 S. Ct. at 2123-24, 2156. But the Court added that it wasn‘t questioning the constitutionality of “shall-issue” licensing regimes. Id. at 2138 n.9. These regimes don‘t require a showing of special need, but they do “often require applicants to undergo a background check” to ensure that the applicant is a “law-abiding, responsible citizen[].” Id. (quoting Dist. of Columbia v. Heller, 544 U.S. 570, 635 (2008)).

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. Bruen‘s language thus could support an inference that the Second Amendment doesn‘t entitle felons to possess firearms. See Range v. Att‘y Gen. United States, 69 F.4th 96, 114 (3d Cir. 2023) (Shwartz, J., dissenting, joined by Restrepo, J.) (inferring from Bruen‘s approval of criminal background checks “that felon bans” on guns “are presumptively lawful“). But see Atkinson v. Garland, 70 F.4th 1018, 1022 (7th Cir. 2023) (stating that Bruen‘s aрparent approval of criminal background checks, before issuance of a public carry permit, doesn‘t resolve the constitutionality of the ban on felons’ possession of firearms).

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.

3. The ban is constitutional under McCane.

McCane squarely upheld the constitutionality of the ban on felons’ possession of firearms. See p. 2, above. Under McCane, we have no basis to draw constitutional distinctions based on the type of felony involved. See In re: United States, No. 09-4145, slip op. аt 8 (10th Cir. Aug. 13, 2009) (unpublished) (stating that McCane had “rejected the notion that Heller mandates an individualized inquiry concerning felons pursuant to § 922(g)(1)“);6 accord United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023) (concluding “that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1)“). McCane instead upheld the constitutionality of the federal ban for any convicted felon‘s possession of a firearm. See p. 2, above. We thus follow McCane and affirm the dismissal.

Melynda Vincent v. Merrick B. Garland

No. 21-4121

BACHARACH, J., concurring.

The majority opinion explаins that the Supreme Court has not indisputably and pellucidly abrogated our precedent in McCane. In some circumstances, the Supreme Court‘s creation of a new standard might implicitly upend our precedent. For example, we might question the continued viability of McCane if the Supreme Court‘s creation of a new test would have required us to view the federal law as unconstitutional. See, e.g., United States v. Tanksley, 848 F.3d 347, 349-52 (5th Cir. 2017) (concluding that the Supreme Court‘s creation of a new test implicitly abrogated a panel precedent ‍‌‌​‌‌​‌​​​​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​​‍when the new test required a different outcome), supplemented on other grounds by United States v. Tanksley, 854 F.3d 284 (5th Cir. 2017). But in my view, the constitutionality of the federal law (18 U.S.C. § 922(g)(1)) would remain debatable even under the Supreme Court‘s new test in N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111, 2129-30 (2022). So even if it were possible for the Supreme Court to implicitly abrogate our precedent, the Court didn‘t do so in Bruen.

Under Bruen, the threshold issue is whether the plain text of the Second Amendment covers the individual‘s conduct. See Maj. Op. at 5. The text of the Second Amendment shows that it applies only to the right of the people with respect to possession of Arms. See id. at 3. There‘s no question about the applicability of the term Arms: The federal ban addresses firearms, which are considered Arms under the Second Amendment. See District of Columbia v. Heller, 554 U.S. 570, 582 (2008) (defining keep Arms from the Second Amendment as have weapons). But does the term the people include individuals cоnvicted of nonviolent felonies?

The answer is debatable. Bruen had no occasion to address the scope of the people as used in the Second Amendment. See N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111, 2157 (2022) (Alito, J., concurring) (“Our holding decides nothing about who may lawfully possess a firearm . . . .“). But Bruen referred fourteen times to the Second Amendment‘s protection of law-abiding citizens. Id. at 2122, 2125, 2131, 2133-34, 2135 n.8, 2138 & n.9, 2150, 2156. These references proved critical to the Court‘s historical analysis. For example, the Court searched the historical record and found no historical analogues requiring a special need for “law-abiding citizens” to possess guns. Id. at 2150, 2156 (2022). The Court contrasted these requirements with background checks or firearm safety coursеs, which don‘t intrude on the rights of “law-abiding” citizens. Id. at 2138 n.9.

But Heller also referred to the people as all members of the political community. 554 U.S. at 580. These references led the Third Circuit to conclude that convicted felons are among the people protected under the Second Amendment. Range v. Att‘y Gen. United States, 69 F.4th 96, 101-03 (3d Cir. 2023) (en banc).1

If individuals convicted of nonviolent felonies aren‘t among the people protected under the Second Amendment, I would regard the ban as constitutional without further historical inquiry. But if we were to interpret the term the people to include individuals convicted of nonviolent felonies, we would need to consider whether the statutоry prohibition was “consistent with” our “historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2126; see Maj. Op. at 5. This inquiry is demanding and subject to differing interpretations. See Atkinson v. Garland, 70 F.4th 1018, 1024 (7th Cir. 2023) (“[T]he historical analysis required by Bruen will be difficult and no doubt yield some measure of indeterminacy.“); id. at 1025 (Wood, J., dissenting) (stating that Bruen‘s historical inquiry, with respect to the law prohibiting felons’ possession of firearms, “necessarily will be inconclusive“).

Courts can diffеr on whether historical analogues existed for the statutory prohibition on felons’ possession of firearms. In determining whether historical analogues exist, we consider English views dating from the late seventeenth century, the Founders’ views in the run-up to adoption of the Second Amendment, and the interpretation of the Second Amendment from its ratification through the end of the nineteenth century. Bruen, 142 S. Ct. at 2127.

In the late seventeenth century, English and colonial authorities had categorically prohibited particular groups from possessing guns. See United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023). But authorities have relied on different grounds for these prohibitions. For example, some judges trace these prohibitions to concern over a group‘s threat to the political community. See, e.g., Atkinson v. Garland, 70 F.4th 1018, 1035 (7th Cir. 2023) (Wood, J., dissenting); Range v. Att‘y Gen. United States, 69 F.4th 96, 110 (3d Cir. 2023) (Ambro, J., concurring) (“[I]t fits within our Nation‘s history and tradition of disarming those persons who legislatures believed would, if armed, pose a threat to the orderly functioning of society.“). Other judges trace the prohibitions to threats of violеnce without parsing the traits of individual members. See, e.g., Jackson, 69 F.4th at 504 (“But if dangerousness is considered the traditional sine qua non for dispossession, then history demonstrates that there is ‍‌‌​‌‌​‌​​​​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​​‍no requirement for an individualized determination of dangerousness as to each person in a class of prohibited persons.“).

Given the variety of interpretatiоns, judges differ on how they apply these historical analogues. Some judges see no historical basis for bans involving nonviolent felonies. See Range, 69 F.4th at 105-06 (concluding that no historical analogue exists to bar possession of firearms by someone convicted under a state law criminalizing a false statement to obtain food stamрs); id. at 109, 112-13 (Ambro, J., concurring) (suggesting that the Second Amendment protects someone who made a false statement to obtain food stamps, but not individuals convicted of violent crimes). Other judges find a historical basis for bans involving any convicted felon. See Jackson, 69 F.4th at 505-06; Range, 69 F.4th at 113-16 (Shwartz, J., dissenting, joined by Krause, J.); id. at 118-28 (Krause, J., dissenting); Atkinson v. Garland, 70 F.4th 1018, 1035 (7th Cir. 2023) (Wood, J., dissenting).2

Given the judicial disagreement over historical analogues for the federаl ban, Bruen did not indisputably and pellucidly contradict or invalidate our precedent in McCane. See United States v. Garza, No. 22-51021, 2023 WL 4044442 (5th Cir. June 15, 2023) (unpublished) (stating that “it is not clear” that Bruen requires a court to find 18 U.S.C. § 922(g)(1) unconstitutional on its face or as applied). So McCane controls Ms. Vincent‘s appeal and requires us to affirm the dismissal.3

Notes

1
Ms. Vincent also challenged a Utah law that prohibited convicted felons from possessing firearms. After Ms. Vincent appealed, however, Utah chаnged its law to permit certain felons to possess firearms after seven years of good behavior. See H.B. 507, 2023 Gen Sess. (Utah 2023). The new law allows Ms. Vincent to possess a firearm, so we dismissed Ms. Vincent‘s challenge to the old version of Utah‘s law. Dictionaries of this era sometimes defined people broadly. E.g., Noah Webster, Am. Dict. of the English Lang., People (1828) (defining people to “comprehend[] all classes of inhabitants, considered as a collective body, or any portion of the inhabitants оf a city or county“).
2
The Supreme Court decided Bruen during the pendency of the appeal. But we must address the effect of Bruen anyway. See United States v. Novey, 922 F.2d 624, 629 (10th Cir. 1991) (reasoning that we may consider arguments based on an intervening Supreme Court case—which was decided during the pendency of the appeal—even though the parties did not make those arguments to the district court), overruled on other grounds by United States v. Flowers, 464 F.3d 1127 (10th Cir. 2006). Scholars also disagree on the existence of historical analogues for a ban on felons’ possession of firearms. Compare C. Kevin Marshall, Why Can‘t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol‘y 695, 714-28 (2009) (stating that the Founders understood that the right to bear arms for self-defense had not categorically excluded individuals convicted of crimes), with Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations, 60 Hastings L.J. 1339-64 (2009) (stating that ‍‌‌​‌‌​‌​​​​‌​​​​‌​​​‌​‌‌​​​‌​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​​‍members of the founding generation recognized that the sovereign could disarm persons convicted of common-law felonies).
3
Bruen expressly abrogated a test in sоme circuits, which had considered Second Amendment challenges based on tests considering the fit between the means used to carry out a governmental interest and the strength of that interest. N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111, 2129 (2022); see United States v. Rahimi, 61 F.4th 443, 449 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023). But no one suggests that Bruen expressly abrogated anything that we had said in McCane. Unlike those circuits, we hadn‘t relied in McCane on the meаns or ends of the ban on felons’ possession of firearms. See United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009). Ms. Vincent argues that adherence to McCane would “prevent any district court from ever applying the Bruen test. Accordingly, Bruen has implicitly overruled McCane.” Appellant‘s Reply Br. at 2. But that‘s not necessarily true. McCane addressed only the federal ban on possession by convicted felons. Given the limited scope of the issue in McCane, our opinion there doesn‘t necessarily prevent application of Bruen to challenges involving the constitutionality of other gun laws.
4
Judges elsewhere disagree on whether this language in Heller had constituted dicta or part of the Supreme Court‘s holding. Compare United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010) (characterizing this language as dicta), with United States v. Rozier, 598 F.3d 768, 771 n.6 (11th Cir. 2010) (stating that this language was not dicta). We need not resolve that disagrеement because we‘re bound by McCane regardless of whether Heller‘s language constituted dicta or part of the holding.
5
Elsewhere, two other Justices (Justices Thomas and Gorsuch) have recognized the existence of historical support for the constitutionality of laws prohibiting felons’ possession of firearms. N.Y. State Rifle & Pistol Ass‘n, Inс. v. City of N.Y., 140 S. Ct. 1525, 1540-41 (2020) (Alito, J., joined by Thomas and Gorsuch, JJ., dissenting).
6
In re: United States is persuasive but not precedential. 10th Cir. R. 32.1(A).