A divided federal appeals panel says a man convicted of a felony can resume his lawsuit challenging the constitutionality of a federal law barring those convicted of felonies from owning guns.
In the 2-1 decision, the majority of the three-judge panel from the U.S. Seventh Circuit Court of Appeals said a recent ruling from the U.S. Supreme Court requires the government to do much more to defend the firearms law than merely declare the Second Amendment’s guarantees of firearm ownership rights don’t extend to people convicted of crimes.
“The parties may be unable altogether to find answers to certain questions, may find incomplete information in response to others, and perhaps in some instances may identify substantial historical information pertinent to one or another dimension of the required inquiry,” the majority wrote.
“In the end, the district court (and surely us too, when this case or another one like it returns) will have to give the best answer available to whether the government has carried its burden of ‘affirmatively prov[ing] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.’”
The decision was authored by Seventh Circuit Judge Michael Y. Scudder, with concurrence from Seventh Circuit Chief Judge Diane Sykes. Circuit Judge Diane P. Wood dissented.
The decision overturned a ruling from U.S. District Judge John Robert Blakey, who dismissed the lawsuit brought by plaintiff Patrick Atkinson.
Atkinson filed suit in Chicago federal court in 2021, asserting a federal law that categorically bans anyone convicted of a crime for which they could be sentenced to at least a year in prison from owning guns.
According to court documents, Atkinson had been convicted of felony mail fraud in 1998. More than two decades later, he attempted to buy a gun, but was denied under the federal law. He then sued, challenging the law.
Blakey dismissed the lawsuit. That decision relied on prior U.S. Supreme Court decisions which permitted courts to use so-called “means-end” analysis to determine if laws restricting gun ownership were constitutional.
In this instance, Blakey said the government’s goal of preventing “dangerous” felons from possessing firearms was sufficient to allow the government to conclude the Second Amendment right to keep and bear arms could be denied to all felons, across the board, rather than on a case-by-case basis.
However, after Atkinson’s lawsuit was dismissed, the Supreme Court in 2022 upended past Second Amendment decisions. In the decision known as New York State Rifle & Pistol Association v Bruen, the Supreme Court instead categorically rejected means-end inquiries when evaluating Second Amendment claims. Instead, the Supreme Court said a government that seeks to restrict gun ownership must conclusively demonstrate that the proposed restrictions fit within America’s historical tradition of firearm regulation, as understood by the nation’s Founders.
Following the Bruen decision, Atkinson appealed, asserting the new decision invalidates Blakey’s dismissal.
In response, the U.S. Justice Department argued the Bruen decision shouldn’t apply to Atkinson’s challenge, because so-called “felon-in-possession laws” should be considered “presumptively lawful,” as Bruen doesn’t preclude all gun ownership rules.
In the majority decision, Scudder and Sykes declined at this point to agree with Atkinson that the federal law was unconstitutional.
But the majority said Blakey’s prior dismissal must be revisited, despite the Justice Department’s assertions otherwise. The appellate judges said Atkinson’s lawsuit addresses a question clearly implicated by the Bruen ruling, but one with which lower courts must grapple.
“Nothing allows us to sidestep Bruen in the way the government invites,” Scudder wrote. “Yes, the (Supreme) Court seemed to find no constitutional fault with a state requiring a criminal background check before issuing a public carry permit.
“But in no way did the Court suggest that its observation resolved cases like the one Atkinson brought…”
In this case, the appellate judges said the courts must answer several key legal questions concerning the disarming of people convicted of crimes, and decide how the Founders might answer them.
To this point, the majority said, both the federal government and Atkinson have fallen short of conducting a “historical analysis” rigorous enough to pass muster under Bruen.
“… The constitutional issues at stake are weighty,” Scudder wrote. “Before we resolve the question before us, the parties should have a full and fair opportunity to develop their positions before the district court in accordance with the principles of party presentation.
“Our review, which all agree is inevitable, will be better for what transpires on remand in the district court.”
The ruling comes as the Seventh Circuit prepares to hear arguments on June 29 in appeals of lower court decisions over challenges to Illinois’ new ban on so-called “assault weapons.” Those appeals also center on the Bruen decision, as a host of firearms’ right advocates argue Illinois’ state law cannot hold up under the Supreme Court ruling.
To this point, lower court judges have split on that question. A Southern Illinois federal judge had blocked the state from enforcing the law. But two Chicago federal judges said the law can hold up, because the Second Amendment’s right to keep and bear arms doesn’t extend to “particularly dangerous” weapons such as those the state wishes to ban.
The Seventh Circuit has since vacated the injunction blocking the law, but has placed the appeal on an expedited briefing schedule, as the plaintiffs seek a ruling before the Illinois law takes full effect later this year.
It has not yet been announced which judges will hear the gun ban appeals on June 29. However, Judge Wood was a member of the panel that refused to allow the injunction of the “assault weapons” ban to remain in effect, pending appeal.
In her dissent in Atkinson’s case, Judge Wood said the courts should also continue to side with the government’s position on the question of whether convicted felons can be prohibited from owning guns, despite the Bruen decision.
“The Supreme Court’s guidance satisfies me that the Court recognizes that certain across-the-board disqualifications from gun ownership have always been part of the U.S. approach to gun regulation and thus have the kind of historical support that Bruen demands,” Wood wrote.
In her view, Wood said a historical analysis makes clear “the right to keep and bear arms always has been subject to careful limitations.” And, she said, the government has always reserved the power to ban “dangerous” people from owning guns.
“To the extent people in that group want to contest the suitability of the dangerousness label to their situation, that is … an equal protection argument and not an argument about the scope of government authority under the Second Amendment,” Wood said.