In United States v. Duarte, ---. F4th ---, No. 22-50048 (9th Cir. 2025), the en banc Court affirmed Steven Duarte’s conviction for felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The opinion is long with several concurrences and a partial dissent. But the essence of the decision is as follows:
Duarte argues that § 922(g)(1) is unconstitutional as applied to non-violent felons like him under Bruen’s analytical framework. While this is an issue of first impression for our court, we do not write on a blank slate, as Courts of Appeals across the nation have been wrestling with fresh challenges to the viability of § 922(g)(1) in the wake of Bruen. Four circuits have upheld the categorical application of § 922(g)(1) to all felons. See United States v. Hunt, 123 F.4th 697, 707–08 (4th Cir. 2024) (rejecting an as applied challenge on a categorical basis); United States v. Jackson, 110 F.4th 1120, 1129 (8th Cir. 2024) (same); Vincent v. Bondi, 127 F.4th 1263, 1265–66 (10th Cir. 2025) (rejecting an as-applied challenge because neither Bruen nor United States v. Rahimi, 602 U.S. 680 (2024), abrogated circuit precedent foreclosing such a challenge); United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024), cert. granted, judgment vacated, No. 24-5744, 2025 WL 76413 (U.S. Jan. 13, 2025) (holding that Bruen did not abrogate circuit precedent foreclosing such challenges).Other circuits have rejected as-applied challenges, but have left open the possibility that § 922(g)(1) might be unconstitutional as applied to at least some felons. See United States v. Diaz, 116 F.4th 458, 471 (5th Cir. 2024) (rejecting an as-applied challenge because the defendant’s underlying felony was sufficiently similar to a death-eligible felony at the founding); United States v. Williams, 113 F.4th 637, 661–62 (6th Cir. 2024) (rejecting an as-applied challenge because the defendant’s criminal record sufficiently showed that he was dangerous enough to warrant disarmament). By contrast, the Third Circuit has held that § 922(g)(1) is unconstitutional as applied to a felon who was convicted of making a false statement to secure food stamps. See Range v. Att’y Gen., 124 F.4th 218, 222–23 (3d Cir. 2024) (en banc). And, as of the date of this writing, the First and Second Circuits have declined to address constitutional challenges to § 922(g)(1) on the merits, while the Seventh Circuit has yet to definitively resolve an as-applied challenge. See United States v. Langston, 110 F.4th 408, 419–20 (1st Cir. 2024) (rejecting an as-applied challenge because there was no “plain” error); United States v. Caves, No. 23-6176-CR, 2024 WL 5220649, at *1 (2d Cir. Dec. 26, 2024) (same); United States v. Gay, 98 F.4th 843, 846–47 (7th Cir. 2024) (assuming for the sake of argument that there is some room for an as-applied challenge, but rejecting the defendant’s specific as-applied challenge because his prior felonies included aggravated battery of a peace officer and possession of a weapon while in prison).Today, we align ourselves with the Fourth, Eighth, Tenth and Eleventh Circuits and hold that § 922(g)(1) is not unconstitutional as applied to non-violent felons like Steven Duarte.In sum, these [historical] laws demonstrate that § 922(g)(1)’s permanent and categorical disarmament of felons is consistent with this Nation’s historical tradition of firearm regulations. Legislatures have historically retained the discretion to punish those who commit the most severe crimes with permanent deprivations of liberty, and legislatures could disarm on a categorical basis those who present a “special danger of misuse” of firearms. Rahimi, 602 U.S. at 698. We agree with the Fourth and Eighth Circuits that either historical tradition is sufficient to uphold the application of § 922(g)(1) to all felons. See Jackson, 110 F.4th at 1127–28; Hunt, 123 F.4th at 706.Section 922(g)(1) “is by no means identical to these [historical laws], but it does not need to be.” Rahimi, 602 U.S. at 698. History does not require “felony-by-felony litigation” to support the application of § 922(g)(1). Jackson, 110 F.4th at 1125; Hunt, 123 F.4th at 700. Instead, consistent with our historical tradition, the government is “empowered to regulate guns through categorical restrictions.” Atkinson, 70 F.4th at 1038 (Wood, J., dissenting).Finally, we recognize that these historical principles “may allow greater regulation than would an approach that employs means-end scrutiny with respect to each individual person who is regulated.” Jackson, 110 F.4th at 1129. However, these are the fruits of Bruen’s constitutional test. See id.; see also Heller v. District of Columbia, 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“[G]overnments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny.” (emphasis omitted)).
