In United States v. Jimenez, the Second Circuit (Pooler, Raggi, Droney) rejected an as-applied Second Amendment challenge to a provision of the Gun Control Act of 1968 that makes it illegal for a person who has been dishonorably discharged from the military to possess guns or ammunition, 18 U.S.C. § 922(g)(6). In the decision, which marks the first time a federal court of appeals has grappled with the statute’s constitutionality post-District of Columbia v. Heller, 554 U.S. 570 (2008), the Court was careful to note that it was not considering a facial challenge and limited its discussion to persons, as here, who have been dishonorably discharged for “felony-like” military offenses.

Background

The defendant, Jose Jimenez, was arrested in 2015 for unlawfully possessing a bullet after being dishonorably discharged from the armed services. Jimenez had agreed to drive another man, Oscar Sanchez, to a fast food restaurant parking lot for $40. Jimenez denied knowing that Sanchez’s true purpose was to unload 20 handguns to a buyer. Little did Sanchez know, the buyer was an undercover detective from the New York Police Department. When the sale fell through (for reasons the Court did not explain, Sanchez decided to give the undercover officer a bag filled with Capri Sun and a carjack, instead of the guns), two agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives, acting in concert with the NYPD, pulled Sanchez and Jimenez over. As the officers approached, Sanchez removed a single round from the chamber of his 9-millimeter handgun (leaving in 12 rounds of ammunition) and gave the round to Jimenez, who was subsequently searched and found to have this bullet in his pocket.

Because Jimenez had been dishonorably discharged from the Marines in 2012 after serving 18 months in military prison for conspiring to sell firearms and night vision goggles and using a controlled substance (ecstasy), the government charged him with violating Section 922(g)(6). That section prohibits any person “who has been discharged from the Armed Forces under dishonorable condition” from possessing firearms or ammunition “in or affecting commerce.” The statute is analogous to the more familiar felon-in-possession statute, which makes it a crime for someone who has been convicted of a felony to possess a firearm or ammunition “in or affecting commerce.” 18 U.S.C. § 922(g)(1). Jimenez sought to dismiss the indictment, arguing that the statute was unconstitutional under the Second Amendment. After the court denied his motion, he pled guilty pursuant to Rule 11(a)(2) in order to preserve his challenge for an appeal, and was sentenced to three years’ supervised release.

Decision

Writing for a unanimous Court, Judge Pooler affirmed the district court’s denial of the motion to dismiss. At the outset, she made clear that the Court was not considering a facial challenge to the statute—Jimenez’s various hypotheticals notwithstanding. Rather, if Section 922(g)(6) was constitutional as applied to Jimenez, he had no standing to challenge its application in other contexts.

Looking solely to Jimenez’s circumstances, the Court considered the two-step analysis that it has developed in the wake of Heller to determine whether legislation violates the Second Amendment. First, does the statute impinge upon conduct protected by the Constitution? And if so, does the statute survive the appropriate level of scrutiny? In dicta, the panel noted that it was unclear whether Jimenez even cleared the first hurdle. The Supreme Court made clear in Heller that its decision was not intended to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” and the Second Circuit has held that similar laws banning ex-felons’ access to firearms and ammunition are constitutional. See United States v. Bogle, 717 F.3d 281, 281‐82 (2d Cir. 2013). Moreover, Heller defined the Second-Amendment right to bear arms in terms of possession by “law-abiding citizens for lawful purposes” and appellate courts have similarly confined the Second Amendment’s protections to the “virtuous” person, citing the understandings of “the political elite of the Founding generation.” The Court here, however, expressed concern over wading into the debate over whether “particular conduct or characteristics can disqualify some individuals from the right that Heller recognized.” The easier course was to assume that the first prong was satisfied and consider the second.

Looking to fit, the Court applied intermediate scrutiny, requiring that the restriction be “substantially related to the achievement of an important governmental interest.” That level of scrutiny was appropriate, it reasoned, because the “core” protection of the Second Amendment, as just noted, was to “law-abiding, responsible citizens,” and persons like Jimenez who have been convicted of felonies or “felony-equivalent” could not claim such a status. “The commission of a felony is a failure to abide by laws that our government has deemed especially important,” as the Heller court acknowledged in deeming felon bans “presumptively lawful.” The Court rejected Jimenez’s contention that his status was different because martial tribunals did not provide him with due process, noting that such proceedings have long been deemed sufficient, and given conclusive effect, in other contexts.

Although Jimenez’s interest fell outside of the core protection of the Second Amendment, the Court acknowledged that the burden on that interest—a wholesale ban on possession—was substantial. On the other hand, the government’s interest in maintaining public safety was “compelling.” Moreover, “[b]ecause state regulation of the right to bear arms has always been more robust than analogous regulation of other constitutional rights,” the government needed only show evidence that “fairly support[ed] its rationale.” Here, the government could comfortably rely on statistics showing that felons are more dangerous with deadly weapons than are non-felons, and Jimenez’s circumstances were sufficiently “felon-like” to warrant like treatment. Indeed, persons convicted of felony-like military offenses were “likely to be more dangerous with firearms” based on their extensive training. In a footnote, the Court noted that there are other, less punitive forms of military punishment—possibly distinguishing those circumstances should they be raised by a future defendant—and that the legislative history of Section 922(g)(6) “suggests that all of these discharges as well as any other discharge ‘on conditions less than honorable’ were meant to be included” within the statute’s purview.

Finally, the Court rejected Jimenez’s suggestion that his possession of a bullet, rather than a gun, made any difference to the analysis. Congress had the same interest in regulating possessions of bullets as guns, the Court explained, because the two go hand-in-hand: “Guns are not regulated because they can be used a blunt objects . . . . Guns are regulated because of their capacity to launch bullets at speeds sufficient to cleave flesh and shatter bone. Without bullets, guns do not have that capacity.”

Analysis

Jimenez reflects a careful balancing of the rights of the individual and the government on the sensitive issue of gun possession. For the most part, the decision is unexceptional: the Court is surely right that if felons can be precluded from possessing firearms (or bullets), military personnel convicted of the same conduct can be as well. At the same time, the Court was reticent to consider the various hypotheticals raised by Jimenez (none of which were mentioned in the decision), and it teed up a potential problem: the statute seemingly sweeps in persons who have committed all sorts of “non-felony” military offenses, even though those individuals might be deemed sufficiently “virtuous” or “law-abiding” to fall within the core of the Second Amendment’s protections.

The panel’s decision to sidestep the first part of the analysis—in line with prior practice—allowed it to avoid the “difficult questions” about the meaning of Heller that “have divided other courts.” Yet in so doing, the Court has largely left unrefined the “‘vast terra incognita’ that Heller left in its wake,” and the difficult task of defining the scope of the Second Amendment right falls to future courts. Felons (or felon-like persons) may be barred from possessing firearms, but the thornier, more value-laden task of “determin[ing] whether [other] particular conduct or characteristics can disqualify some individuals from the right that Heller recognized” remains open in this Circuit. In addition, this is an area where a bright-line rule would be useful, in order to avoid putting individuals through the criminal process if in fact the Constitution does not permit his or her prosecution. There will no doubt be more Heller claims in the years to come.