The Real Story About a Federal Court Declaring a Federal Firearm Statute Unconstitutional

What’s the real story about a federal judge in Mississippi declaring the federal felon in possession of a firearm statute unconstitutional? As always, there’s more to the the story than what’s being reported. Here’s the real story about United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2023 U.S. Dist. LEXIS 112397 (S.D. Miss. June 28, 2023).

I’ve been hit with some questions about a recent case that some legal authors have said declared § 922(g) unconstitutional. So, why aren’t the thousands of prisoners with § 922(g) cases going home? Here’s the real story about that decision. But first a little background.

Jessie Bullock was convicted of aggravated assault and manslaughter after a bar fight in 1992 and did about 15 years in state prison. In May of 2018, the federal government accused Mr. Bullock of being a felon in possession of a firearm. It got a grand jury to indict him, but it didn’t arrest him until March of 2020. When the government tried to argue that Mr. Bullock needed to be held without bond because he was “a dangerous felon,” the court said it would be “downright silly” to keep him locked up after the government let him run free for a couple years after the alleged offense. He was released and the criminal proceedings slowly began.

Mr. Bullock filed a motion to dismiss the indictment in August 2022, just before his trial was about to start. He argued that, as applied to him, the federal felon in possession statute, 18 U.S.C. § 922(g), was unconstitutional. He said that since his prior felony was way back in 1992 and since he had already completed his prison sentence, the law made no sense and violated his Second Amendment right to own firearms. Surprisingly, the district court agreed.

In an 82-page opinion, with 37 detailed footnotes, Judge Carlton W. Reeves laid the groundwork for why he agreed with Mr. Bullock that the charge had to be dismissed. Much of the court’s opinion was about the current state of constitutional challenges in the courts. It pointed to New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), where the Supreme Court held that NY’s gun ban violated the Second Amendment.

While the argument in Bruen was about NY banning all firearms unless someone could show a valid need to own one, it was the way the Court analyzed the Second Amendment in Bruen that got Judge Reeves’s attention. It’s a long story but here’s the gist of it. The Second Circuit upheld a challenge to NY’s gun ban, saying that the government had a legitimate interest in preventing gun violence in the state. However, the Supreme Court said this “interest-balancing” had no place in assessing the constitutionality of NY’s law.

Judge Reeves grabbed that reasoning and ran with it. He said that the Bruen Court’s ban on interest-balancing killed the government’s argument that it had a legitimate interest in keeping guns out of the hands of felons in order to prevent gun violence. The government’s interests don’t matter. (I have to wonder about so many other laws the government says supports its interests in protecting the public, like the sex offender registry and other controversial laws.)

But here’s why the decision in Bullock won’t help anyone but Mr. Bullock, as Judge Reeves made clear wrapping up his decision:

Again, Mr. Bullock presents an as-applied challenge to § 922(g)(1). He contends that the charge against him, and him only, should be dismissed because “the prosecution has failed to establish a ‘historical tradition’ supporting lifetime criminalization of [his] possession of a firearm.” Docket No. 64 at 9. The Court agrees. In plain English, that means that the charge against Mr. Bullock will be dismissed today, and the federal government may continue to prosecute other persons for violating § 922(g)(1).

The term “as-applied” means that the court’s decision didn’t declare § 922(g) unconstitutional. It’s only unconstitutional as applied to Mr. Bullock. Sure, someone else can make the same argument and maybe get lucky enough to find a judge like Carlton Reeves to side with them. But as it stands, this case only applied to Mr. Bullock, not every § 922(g) conviction out there.

Before you go and say I’m being too negative, I do think Judge Reeves’s opinion is solid ground to make this argument in other courts. I also think it could be rather successful in some cases. As of today, the government hasn’t filed an appeal in Mr. Bullock’s case, and they have three more days to do so (until July 12). But I don’t think you’ll see an appeal here. The government might not risk having the Fifth Circuit (which includes gun-loving Texas) uphold this decision so that others can use it. A district court decision has much less impact than a binding decision in the court of appeals, as you know. [Update: The government did file an appeal in the U.S. Court of Appeals for the Fifth Circuit on July 28, case number 23-60408]

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