Yesterday, Chief Counsel Joshua Prince, assisted by Attorney Dillon Harris, secured a monumental, en banc decision by the Third Circuit Court of Appeal, wherein the Court, in addition to outright rejecting the U.S Government’s contention that the revitalized Federal Firearms Relief process of 18 U.S.C. 925(c) results in the prohibitions of 18 U.S.C. 922(g)(1) being constitutional, held that disarming individuals as a result of a non-violent conviction that did not involve the misusing of a firearm was unconstitutional.
Specifically, the Third Circuit started by reviewing the Bruen, and its progeny, two-step framework, where it quickly found that Mr. Williams is of the people and that his desire to have a firearm for protection of himself and his family falls at the core of the Second Amendment. As Mr. Williams established the first step, the burden then turns to the Government to establish that there is a history and tradition – around the time of Founding – of stripping individuals of their right to keep and bear arms. This requires that the Government show not just that there exists some laws around the time of Founding that stripped individuals of their right but that the “how” and “why” those historical laws did it are synonymous with the current day law.
Turning to the Government’s arguments, the Court found, consistent with the U.S. Supreme Court’s decision in Rahimi, that there exists “no history that supports disarming irresponsible people, where “responisble” is defined by the whim of the sovereign or the will of the majority,” and declared that history only supports “disarm[ing] classes of people who pose a true risk of sedition or treason” or stated otherwise, there only exists a “tradition of disarming those determined to use firearms to threaten civil society.” In this context, it also chastised the Government for attempting to argue that anyone convicted of a “felony” should be automatically divested of their Second Amendment rights, because the “word “felony” has roots in mortal sin[,] [b]ut as time passed, felony’s substance was lost, as it came not to be defined by the character of the wrongdoer, but the potential punishment.” Resultantly, the Court declared that “a crime punishable by more than on year of imprisonment [] is not even close to the proper “level of generality at which to define [the] historical practice” and thus, “simply pointing to Williams’s felony because it is labeled ‘felony'” is insufficient.
Rather, as the Court explains, “we focus not on Williams’s general dangerousness, but on whether Williams would have been punished for his conduct because it was thought to correlate with future dangerous use of arms.” In doing so, “[w]e look to the elemtns of the predicate offense, and to clarify those elements, we may also consider the ‘charging documents, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. If the predicate offense lacks threats or violence, then the predicate crime was likely never disarmable.” (emphasis added)
The Court then analyzed the Government’s arguments regarding habitual drunkard laws but found, when reviewing the “why” that these laws “did not seek ‘to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation.” It also chastises the Government for failing to explain “how the habitual drunkard laws ameliorated the threat of firearm misuses in a way relevant to the operation of 922(g)(1).”
And addressing the Government’s last argument – that the re-institution of the Federal Firearms Relief program results in 922(g)(1) being constitutional, since the ban is, putatively, no longer permanent – the majority of the Court holds that, at least in its present form, it has no bearing, since its future and the delays in processing are unknown.
In concluding, the Court declares
But virtuous life is a perpetual project, with redemption and reentry into the community a constant promise. And with that rehabilitation comes restoration of the civic privileges guaranteed to citizens by the Constitution, and the freedom to again exercise the natural right of armed defense against threats and tyranny. For the reasons above, we will affirm the District Court’s judgment granting Williams summary judgment.
Unfortunately, it was not a unanimous decision, with two concurring and one dissenting opinions. In the first concurring opinion, three judges declare that an individual should have to utilize the Federal Firearms Relief program before bringing an as-applied challenge (but whom, agreed that such requirement should not apply to Mr. Williams because of this case pending for 9 years now and the relief program not being available at the time of the case’s inception). In the second concurring opinion, three judges went a step further and said that declaratory relief actions should not be available, as long as, the Federal Firearms Relief program is functional. And in the dissenting opinion, three judges declare that district court’s opinion should be overturned and the complaint dismissed, for Mr. Williams to be forced to utilize the Federal Firearms Relief program.
While we disagree that any individual should be forced to proceed under the Federal Firearms Relief program – especially since, as Chief Counsel Prince argued and the majority of the Court agreed, if the predicate offense lacks threats or violence, then the predicate crime was never disarmable – we already have almost a year of experience in applying under the Federal Firearms Relief program, as the Government has begged us since the Attorney General retook the power to grant relief to utilize the program, instead of filing declaratory judgment actions. So, if you want competent counsel with actual experience in representing individuals for relief under 925(c), contact us today!
If you or someone you know has been the victim of an unlawful policy or position of the United States Government or you want to apply for Federal Firearms Relief, contact FICG today to discuss your options.
Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.
