A federal appeals court has struck down the law banning a nonviolent felon from ever owning firearms again.
On January 27, a three-judge panel of the New Orleans-based 5th Circuit Court of Appeals, in the case U.S. v. Hembree, found the law unconstitutional as applied to defendant Charles Hembree.
As background, Hembree was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He has a single predicate felony conviction: a 2018 conviction for simple possession of methamphetamine.
According to court records, Hembree was not accused of trafficking drugs, committing violence or using a firearm in connection with the offense. Years later, federal prosecutors charged him under § 922(g)(1) after he possessed a firearm, arguing that any felony conviction automatically justifies a lifetime gun ban.
He was convicted of the charge, and the conviction was later upheld by the U.S. District Court for the Southern District of Mississippi. However, he appealed that conviction to the 5th Circuit Court, where he argued that § 922(g)(1) is unconstitutional as applied to him and raised various other constitutional challenges to his conviction.
In effect, the 5th Circuit Court ruled that the federal government cannot permanently disarm a person based solely on a single, nonviolent drug possession conviction. Using the second standard set down by the Supreme Court in New York Rifle and Pistol Association v. Bruen, the court determined that permanently disarming someone for a single, nonviolent possession offense has no grounding in the nation’s historical tradition of firearm regulation.
“The government’s first historical basis for permanently disarming Hembree is that his underlying predicate conviction of simple possession of methamphetamine is analogous to severe punishments for ‘knowing possession of contraband,’” the ruling stated. “As the government has offered in prior cases, examples of such contraband include ‘knowing receipt of a stolen horse, mail theft, and counterfeiting,’ which were severely punished at the Founding, including punishable with death. In both Kimble and Doucet, however, our court held that these very same analogues are not sufficiently similar either to the felony predicates of drug trafficking in the former, or attempted marijuana cultivation in the latter.”
The government’s second historical basis for permanently disarming Hembree was that our Nation has maintained a “history and tradition of disarming dangerous individuals.” That didn’t convince the Circuit Court judges, either.
“For one, the government characterizes Hembree’s prior conviction for simple possession as necessarily the same as possession with intent to distribute, because both the lesser and greater charges were included in his indictment,” the ruling further stated. “But this is a common occurrence in criminal indictments. Evidence of a potential greater charge does not support the government’s historical reasoning because our binding caselaw restricts us to reviewing only Hembree’s predicate conviction: possession of methamphetamine.”
Ultimately, the court concluded that the government hadn’t met its burden of proof concerning a historic precedent.
“Our court’s § 922(g)(1) caselaw has rapidly evolved and continues to do so,” the ruling concluded. “But we are bound by our precedent, pending further clarification from our full court to reconcile our incremental approach or from the Supreme Court to reconcile the circuit split. We therefore find that the government did not meet its burden to prove that history and tradition support simple possession as a valid felony predicate under § 922(g)(1). We decline to reach so far as to find possession to be part and parcel with the drug trade, and the government’s analogy to possession of contraband has been foreclosed. Accordingly, we are compelled to reverse Hembree’s conviction as unconstitutional as-applied.”
The ruling flies directly in the face of contrary rulings in other circuits, further defining a circuit split on the matter. That’s another good reason for the U.S. Supreme Court to hear a case on the issue in the coming years.
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