Vincent v. Garland

80 F.4th 1197

Melynda VINCENT, Plaintiff - Appellant, v. Merrick B. GARLAND, Attorney General of the United States, Defendant - Appellee.

No. 21-4121

United States Court of Appeals, Tenth Circuit

FILED September 15, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:20-CV-00883-DBB)

Sam Meziani, Goebel Anderson PC, Salt Lake City, Utah (Amberly Page, Goebel Anderson PC, Salt Lake City, Utah, and Jeremy Delicino, Jeremy Delicino LLC, Salt Lake City, Utah, with him on the briefs), for Plaintiff-Appellant.

Kevin Benjamin Soter, Attorney, Appellate Staff (Trina A. Higgins, United States Attorney, Brian M. Boynton, Principal Deputy Assistant Attorney General, Mark B. Stern, Michael S. Raab, Abby C. Wright, Attorneys, Appellate Staff, U.S. Department of Justice, Washington, D.C., with him on the brief), for Defendant-Appellee.

Before BACHARACH, KELLY, and CARSON, Circuit Judges.

BACHARACH, Circuit Judge.

Roughly 50 years ago, Congress banned the possession of firearms by convicted felons. Gun Control Act of 1968, § 922(h)(1), Pub. L. No. 90 618, 82 Stat. 1213, 1220 (codified as amended at 18 U.S.C. § 922(g)(1)). After Congress enacted this ban, the Supreme Court held that the Second Amendment guarantees a personal right to possess firearms. District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Based on the Court's language, we upheld the constitutionality of the ban on convicted felons' possession of firearms. United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009).

The Supreme Court has recently created a new test for the scope of the right to possess firearms. N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 2129-30, 213 L.Ed.2d 387 (2022). Based on the Supreme Court's creation of a new test, the plaintiff challenges the constitutionality of the ban when applied to individuals convicted of nonviolent felonies. To resolve this challenge, we must consider whether the Supreme Court's new test overruled our precedent. We conclude that our precedent has not been overruled.

1. The plaintiff challenges the ban after conviction of a nonviolent felony.

The plaintiff is Ms. Melynda Vincent, who was convicted of a nonviolent felony (bank fraud). Because of this conviction, Ms. Vincent can't possess a firearm for the rest of her life. See 18 U.S.C. § 922(g)(1). Ms. Vincent challenges that prohibition, arguing that it violates the Second Amendment rights of nonviolent felons like herself.¹

2. The Supreme Court hasn't expressly abrogated our precedent on the constitutionality of the federal ban.

To resolve this challenge, we must consider the scope of the Second Amendment. This amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. For over two centuries, the nature of this right was uncertain. In 2008, however, the Supreme Court clarified this right in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). There the Court focused on the text and history of the Second Amendment, concluding that it guarantees a right to bear arms unconnected with service in the militia. Id. at 579-92, 128 S.Ct. 2783. The Court observed that it wasn't "cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons." Id. at 626, 128 S.Ct. 2783. We applied this observation in United States v. McCane to uphold the constitutionality of the federal ban on felons' possession of firearms. 573 F.3d 1037, 1047 (10th Cir. 2009).

The district court was obligated to apply our precedent. United States v. Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir. 1990). So the court applied McCane and dismissed Ms. Vincent's challenge to the constitutionality of the federal ban. In considering that dismissal, we conduct de novo review. Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). To conduct de novo review, we must consider the current caselaw even if it didn't exist when the district court ruled.

That caselaw includes N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022), where the Supreme Court addressed the scope of the Second Amendment.² In Bruen, the Court concluded that the Second Amendment prohibits a state from requiring gun owners to demonstrate a special need in order to obtain a license to carry a firearm in public. Id. at 2134-35, 2156. Ms. Vincent argues that Bruen abrogated our precedential opinion in McCane.

Like the district court, we're generally obligated to apply our own precedents. United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021). But an exception exists when the Supreme Court has issued an opinion contradicting or invalidating the analysis in our precedent. United States v. Brooks, 751 F.3d 1204, 1209-10 (10th Cir. 2014). So we must decide whether the Supreme Court's opinion in Bruen contradicted or invalidated our analysis in McCane.

In Bruen, the Supreme Court created a test requiring consideration of two questions:

1. Does the Second Amendment's plain text cover an individual's conduct?

2. If the answer is yes, has the government justified the ban by showing that it's consistent with the nation's "historical tradition of firearm regulation"?

142 S. Ct. at 2129-30.

This test didn't exist when we decided McCane. But the emergence of a new test doesn't necessarily invalidate our earlier precedent. We addressed a similar issue in Barnes v. United States, 776 F.3d 1134 (10th Cir. 2015). The issue there involved the jurisdictional nature of the Federal Tort Claims Act's statute of limitations for suits brought against the United States. Prior to Barnes, we had held that the statute was jurisdictional. Casias v. United States, 532 F.2d 1339, 1340 n.1 (10th Cir. 1976). But the Supreme Court later created a new framework to assess the jurisdictional nature of statutes of limitations in suits brought against the United States. Sebelius v. Auburn Reg. Med. Ctr., 568 U.S. 145, 153-54, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013). Though we hadn't used that framework for the Federal Tort Claims Act's statute of limitations, we applied our earlier precedent because the Supreme Court's new framework hadn't contradicted or invalidated our prior characterization of the FTCA's statute of limitations. Barnes, 776 F.3d at 1147-48.

Under Barnes, we can't jettison McCane just because it might have been undermined in Bruen. Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1142 (10th Cir. 2023). We must instead determine whether Bruen indisputably and pellucidly abrogated McCane. Barnes, 776 F.3d at 1147.³

In Bruen itself, the Supreme Court didn't address the ban on felons' possession of firearms. The Court instead addressed the constitutionality of a New York licensing scheme for carrying a handgun in public. N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 2122-24, 213 L.Ed.2d 387 (2022). In addressing that licensing scheme, the Court articulated a historical test for the scope of the Second Amendment's right to bear arms. Id. at 2129-30. For that test, the Court drew upon District of Columbia v. Heller, which had recognized a personal right to bear arms. 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In recognizing that right, the Supreme Court considered the text and historical origins of the Second Amendment. Id. at 605-20, 128 S.Ct. 2783. After this historical discussion, the Court noted that

• "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons" and

• felon dispossession statutes are "presumptively lawful."

Id. at 626-27 & n.26, 128 S.Ct. 2783.

In McCane, we relied solely on this language from Heller,⁴ reasoning that the Supreme Court had appeared to recognize the constitutionality of longstanding prohibitions on possession of firearms by convicted felons. 573 F.3d 1037, 1047 (10th Cir. 2009).

Though Bruen created a new test for determining the scope of the Second Amendment, the Court didn't appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons. If anything, Bruen contains two potential signs of support for these prohibitions.

First, six of the nine Justices pointed out that Bruen was not casting any doubt on this language in Heller. N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 2157, 213 L.Ed.2d 387 (2022) (Alito, J., concurring); id. at 2162 (Kavanaugh, J, concurring, joined by Roberts, C.J.); id. at 2189 (Breyer, J., dissenting, joined by Sotomayor and Kagan, JJ.).⁵

Second, Bruen apparently approved the constitutionality of regulations requiring criminal background checks before applicants could get gun permits. In Bruen, the Court struck down state regulations that had required the showing of a special need before someone could get a license to carry a gun. 142 S. Ct. at 2123-24, 2156. But the Court added that it wasn't questioning the constitutionality of "shall-issue" licensing regimes. Id. at 2138 n.9. These regimes don't require a showing of special need, but they do "often require applicants to undergo a background check" to ensure that the applicant is a "law-abiding, responsible citizen[ ]." Id. (quoting Dist. of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)).

In preserving "shall-issue" regimes and related background checks, the Court arguably implied that it was constitutional to deny firearm licenses to individuals with felony convictions. Bruen's language thus could support an inference that the Second Amendment doesn't entitle felons to possess firearms. See Range v. Att'y Gen. United States, 69 F.4th 96, 114 (3d Cir. 2023) (Shwartz, J., dissenting, joined by Restrepo, J.) (inferring from Bruen's approval of criminal background checks "that felon bans" on...