NYSRPA v. Bruen, New Opportunities for Federal Defendants?
It’s been a crazy past two weeks sifting through opinions by the United States Supreme Court as the Court published, I think, 33 opinions in one month. It’s hard to keep up with all the change! But I want to draw attention to this case, NYSRPA v. Bruen which, in my opinion, is going to provide opportunities for federal criminal defendants charged with, or convicted of, or enhanced by, federal gun laws. To be clear– change won’t happen overnight and there’s bound to be significant opposition as constitutional challenges wend their way through the court system, but it’s hard to conclude otherwise than that this case portends significant changes in federal gun regulation as applied to both convicted felons and those currently charged under federal law when the government seeks to enhance sentences based on gun possession. I think that, at first blush, the idea that felons may once again not be restricted from gun ownership will be shocking. But for those of us proximate to the criminal justice system, and who have seen young black men disproportionately prosecuted and sentenced under federal gun law regulations, this opinion gives some hope of addressing those inequities. As an example, check out this report from the Federal Sentencing Commission. For the Fiscal Year 2021, of all offenders prosecuted for felon-in-possession of a firearm (922(g)), 56.2% of them were black. The average sentence for the offense was 60 months. Can this new opinion address this disparity? Maybe.
The Bruen Opinion
The Bruen opinion addressed a New York state law that regulated the public carry of handguns since 1905. New York’s regulation essentially made it a crime to possess “any firearm” without a license, whether inside or outside of the home. A license applicant who wanted to possess a firearm in the home (or place of business) had to convince a licensing officer that he or she is of good moral character, had no history of criminal activity or mental illness, and that “no good cause exist[ed] for the denial of the license.” §§400.01(1)(a)-(n). If he or she wanted to carry a firearm outside of the home or place of business for self-defense, the applicant needed to obtain an unrestricted license to “have and carry” a concealed “pistol or revolver.” §400.00(2)(f). To secure the license, the applicant had to prove that “proper cause exist[ed]” to issue it. Ibid. The Supreme Court rejected this regulatory regime in its entirety and in doing so has clarified the maximalist reach of the Second Amendment.
The holding in Bruen is straightforward and clear: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. *8. To justify its regulation the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Bruen *8, 15 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961). Later, the Court reiterates this central point: [T]he government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. *16. Rejecting the United States Government’s position in the litigation, the Court has made clear that courts are not to engage in any means-end or intermediate level scrutiny as “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” * 14 (quoting District of Columbia v. Heller, 554 U.S., 570, 634 (2008).
History of Regulations Pertaining to Convicted Felons
Regulating the legality of possessing firearms based on a person’s status as a felon is not rooted in our country’s history. Indeed, this specific prohibition did not exist until 1968 with the passage of the Gun Control Act (GCA).
Our country’s first efforts to regulate firearms was in 1934, with the passage of the National Firearms Act (NFA). That legislation had the effect of imposing a tax on the making and transfer of firearms and was passed in response to rising violence in the 1920’s and 1930’s during Prohibition. Certain categories of firearms were also regulated like machine guns and short-barreled rifles, and short-barreled shotguns.
The Act did not delimit groups of individuals who were not allowed to possess firearms.
Later, Congress passed the GCA in response to fears of growing gun violence, most notably the assassinations of President Kennedy, Martin Luther King, Jr., and Senator Robert Kennedy. It was in this legislation that gun ownership began to be regulated based on the status of that individual. The GCA made it illegal for felons, minors, fugitives, drug addicts, and the mentally ill to possess firearms. In his remarks upon signing the bill on October 22, 1968, President Johnson said this: “Today we begin to disarm the criminal and the careless and the insane.” Before this legislation, there was no history in this Nation of forbidding entire classes of citizens from possessing firearms.
What Does This Mean?
It’s clear there are going to be a number of challenges going forward regarding the felon in possession statute. I am currently working on two motions to dismiss indictments for current clients who have been charged but not yet convicted of the offense. But I think there will be additional, important challenges to pursue as well. For those who have had their sentences enhanced based on firearm offenses (either because of relevant conduct enhancements or prior convictions), there may be an opportunity to challenge those sentences. I think it’s likely the proper vehicle for challenging these sentences will be through §2255 motions. And if that’s true, then there is a one-year period in which these challenges need to be filed. I also think there is going to be an extraordinary amount of litigation that is going to start happening so it’s time to start thinking about your case and how to develop it. Our firm plans to keep on top of the issues in this area and we’re going to be continuing to explore novel challenges to get relief for our clients. If you think you may be impacted by this new Supreme Court decision, please reach out to us. We’d love to help you develop and file your challenges. But know this—there is going to be much opposition to these challenges—from the Government, law enforcement, and victims’ rights organizations. I predict a tidal wave of challenges forthcoming, so this may be a lengthy process as cases are appealed to the circuit courts of appeal and then the United States Supreme Court. But, for purposes of a §2255 motion, you would be wise to file before next mid-June.
Also, it’s important to begin gathering the relevant materials for your challenge. I can tell you, from experience, sometimes it is difficult to obtain a copy of the PSR from the probation department, but your lawyer will need it. Either reach out, or have your family reach out to your prior lawyer to get a copy of that PSR so you can provide it to post-conviction counsel. Also, any additional records or materials relating to your underlying offenses will be helpful. I think the Bruen case likely constitutes a once in a generation opportunity for federal inmates who have been convicted (or had their sentences enhanced for firearm related conduct) under federal firearms statutes. Make sure you take advantage of the opportunity. It is my hope that the eventual effect of this case is that it may help combat some of the racial and economic disparities we currently see in the federal criminal justice system.
 “This is the first time you have in law that mentally unbalanced people ought not to be able to get guns—also convicted felons.” Waxman, Olivia B, Time Magazine, October 30, 2018. See https://time.com/5429002/gun-control-act-history-1968/ (last visited July 5, 2022).
 See Remarks Upon Signing the Gun Control Act of 1968, at https://www.presidency.ucsb.edu/documents/remarks-upon-signing-the-gun-control-act-1968 (last visited June 26, 2022).