Seventeen years ago, Melynda Vincent was convicted of bank fraud because she paid for groceries with a bad check for $498. Although bank fraud can be punished by up to 30 years in prison under federal law, Vincent was sentenced to probation, which she successfully completed before earning three university degrees and launching a career as a social worker. In 2016, she founded the Utah Harm Reduction Coalition, which aims to "provide evidence-based interventions to aid people in reducing health and social harms associated with substance use."
Vincent, in short, has been law-abiding and productive for many years. But because her 2008 conviction involved a crime punishable by more than a year of incarceration, she permanently lost her Second Amendment rights under 18 USC 922(g)(1). That means she is not legally allowed to own a gun for self-defense or even possess one while hunting with her children. Those burdens, Vincent's lawyers argue in a Supreme Court petition, are unconstitutional as well as unjust. They say the case, Vincent v. Bondi, provides "an ideal vehicle" for resolving a circuit split on the question of whether the Second Amendment allows the government to disarm people based on nothing more than a nonviolent criminal conviction.
Section 922(g)(1) applies to millions of Americans with no history of violence. According to the Prison Policy Initiative, about 19 million Americans have felony records. In FY 2023, the Bureau of Justice Statistics (BJS) reports, just 4.4 percent of federal felony convictions involved violent crimes. Older BJS data indicate that less than a fifth of state felony convictions involve violent offenses. Those numbers, Vincent's petition says, suggest that "over eighty percent of state offenders and over ninety-five percent of federal offenders have improperly lost their right to self-defense" because of Section 922(g)(1).
Under the test established by the Supreme Court's 2022 decision in New York State Rifle and Pistol Association v. Bruen, the question is whether that policy is "consistent with the Nation's historical tradition of firearm regulation." No, the U.S. Court of Appeals for the 3rd Circuit concluded in a 2023 case involving a Pennsylvania man who had been convicted of food stamp fraud. As applied to that man, the 3rd Circuit ruled in Range v. Attorney General, Section 922(g)(1) failed the Bruen test.
The U.S. Court of Appeals for the 10th Circuit reached a different conclusion in Vincent's case. In 2023, the appeals court ruled that Bruen did not affect the validity of its prior judgment that the blanket ban imposed by Section 922(g)(1) is constitutional. It noted that the justices had previously suggested, in the landmark 2008 case District of Columbia v. Heller, that "longstanding prohibitions on the possession of firearms by felons" were consistent with the Second Amendment—language that was quoted in Bruen, which "didn't appear to question the constitutionality" of such laws.
The Supreme Court subsequently vacated the 10th Circuit's ruling and remanded the case for reconsideration in light of United States v. Rahimi, its 2024 decision upholding a prosecution for violating the federal ban on gun possession by people subject to domestic violence restraining orders. Last February, the 10th Circuit again rejected Vincent's challenge to Section 922(g)(1), saying "Heller's instruction that felon dispossession laws are presumptively valid…was reaffirmed in Rahimi."
Three other federal appeals courts—the 4th Circuit, the 8th Circuit, and the 11th Circuit—have agreed that Bruen does not require any distinction among the absurdly broad range of people covered by Section 922(g)(1). But the 5th Circuit and the 6th Circuit have joined the 3rd Circuit in allowing as-applied challenges to the law, although they rejected them in those particular cases.
Vincent wants the Supreme Court to resolve this split in favor of the latter view. The 10th Circuit "refused to apply the analysis mandated by Bruen and Rahimi," her petition notes. "Under that analysis, text, history, and tradition show that the government cannot permanently disarm Ms. Vincent—a single mother, social worker, adjunct college professor, and nonprofit founder with two graduate degrees—solely because of one seventeen-year-old conviction for passing a bad check."
When the Second Amendment was ratified in 1791, "there was no history or tradition of permanently disarming nonviolent offenders," Vincent's lawyers say. "No evidence has emerged of any significant Founding-era firearms restrictions on citizens like Ms. Vincent who committed only nonviolent offenses and posed no physical threat to others. While the historical record suggests that dangerousness sometimes supported disarmament, conviction status alone did not connote dangerousness to the Founding generation."
The petition emphasizes the lack of early precedent for a gun ban as sweeping as Section 922(g)(1): "No Founding-era evidence has emerged of class-wide, lifetime bans on firearms possession merely because of conviction status. In fact, total bans on felon possession existed nowhere until at least the turn of the twentieth century."
Vincent's lawyers note that Supreme Court Justice Amy Coney Barrett, as a judge on the U.S. Court of Appeals for the 7th Circuit, saw little historical support for the policy embodied in Section 922(g)(1). History "demonstrates that legislatures have the power to prohibit dangerous people from possessing guns," Barrett wrote in a 2019 dissent. "But that power extends only to people who are dangerous." That category, she thought, did not include someone who was convicted of mail fraud because he misrepresented the characteristics of the shoe inserts he sold.
Vincent's petition also cites a 2020 law review article by Joseph G.S. Greenlee, director of research at the Firearms Policy Coalition (FPC), who delves further into the relevant history in a brief that the FPC, joined by the National Rifle Association and the Second Amendment Foundation, filed in support of Vincent's petition. "America's historical tradition of firearm regulation provides support for the disarmament of only dangerous persons—disaffected persons posing a threat to the government and persons with a proven proclivity for violence," the FPC et al. say. "This limited tradition of disarming dangerous persons has been practiced for centuries. It was reflected in the debates and proposed amendments from the Constitution ratifying conventions, and throughout American history."
By contrast, "there is no tradition of disarming peaceable people," the brief says. "Historically, nonviolent criminals—including nonviolent felons—who did not demonstrate a propensity for violence retained the ability to exercise their right to keep and bear arms. Indeed, some laws expressly allowed or even required them to keep and
bear arms."
Section 922(g)(1), which UCLA law professor Adam Winkler rightly calls "wildly overinclusive," defies common sense as well as the Second Amendment. The ban, which was first imposed in 1961 as an amendment to the Federal Firearms Act of 1938, applies regardless of how long ago someone was convicted, the nature of the offense, the penalty that was actually imposed, or how the offender has behaved in the years since.
To give a sense of how senseless that is, Vincent's lawyers note that "adultery is a felony punishable by five years' imprisonment" in Michigan, that "repeatedly sharing streaming websites' passwords is a felony" in Tennessee, that "using a telephone to make a single anonymous call to annoy or embarrass" and "temporarily using someone else's car without their consent" are both punishable by more than a year of imprisonment in Maryland, and that "'recklessly…[d]efacing' a school building—something countless teenaged pranksters have done—is a felony" in Arizona. They add that federal law also "includes many felonies that involve no danger," such as "knowingly and unlawfully 'export[ing] any fish or wildlife'" and making "an unauthorized recording of a movie" in a theater.
"Whether engaging in any of these acts forfeits the right to self-defense is an important question this Court should answer," the petition says. And unless the Supreme Court intervenes, Vincent's lawyers warn, Section 922(g)(1) "will continue to deter countless peaceful Americans from possessing firearms for self-defense, with no real benefit to public safety."
The post 17 Years Ago, She Lost Her Gun Rights for Passing a Bad Check. She Wants SCOTUS To Rectify That Injustice. appeared first on Reason.com.
