On Tuesday, the Fourth Circuit issued an important opinion in United States v. Canada, No. 22-4519, holding that 18 U.S.C. § 922(g)(1) (the “felon in possession” statute) is facially constitutional even after Bruen—the Supreme Court’s current framework for testing criminal statutes for compliance with the Second Amendment.
First, background. Since 2022, Bruen has required courts to analyze such statutes using a two-step inquiry. Under the first part of that inquiry, the court determines whether the Second Amendment’s plain text covers the conduct. If the answer is yes, then the burden shifts to the government to show that the statute falls within the country’s historical tradition of firearm regulation. We have seen this applied across the country to criminal laws related to firearm possession—including recently here in North Carolina with the Radomski case.
Let’s start where the opinion does, explaining what it does not cover. This is not an as-applied challenge. (Check out Range v. Att’y Gen. United States of Am., 69 F.4th 96 (3d Cir. 2023) (en banc) for an as-applied challenge that was upheld by the Third Circuit). For that reason, the Fourth declines to wade into the full Bruen analysis.
Instead, the Court reminds us that no federal court has found 922(g)(1) to be facially unconstitutional—and the Fourth Circuit will not be the first. The statute is facially constitutional because it has a “‘plainly legitimate sweep’ and may be constitutionally applied in at least some ‘set of circumstances.’” So, for now, the government may continue to forbid people convicted of a felony from possessing firearms without running afoul of the Second Amendment.
922(g)(1) is not facially unconstitutional, but questions remain. What is the definition of “people” under the Second Amendment, and where do convicted felons fit into this? What is the historical and traditional practice in our country of disarming dangerous people? What do we make of Supreme Court references in Heller and Bruen to “law-abiding citizens” and “longstanding prohibitions on the possession of firearms by felons”? Finally, does Bruen permit courts to revisit prior post-Heller decisions upholding the constitutionality of 922(g)(1)? The Fourth Circuit leaves those questions for another day.
Next, a South Carolina “criminal domestic violence” conviction is not a violent felony under the Armed Career Criminal Act, the Court held. That is because South Carolina “criminal domestic violence” can be committed with a mens rea of mere recklessness. Under Borden v. United States, 593 U.S. 420 (2021), such a crime no longer qualifies as a “violent felony” under ACCA.
While the holdings here are simple, how the Court got here is not and highlights an interesting procedural mechanism available to the Fourth Circuit in many states but not here in North Carolina. As the opinion notes, the criminal intent necessary under state law to be found guilty of a particular state crime is determined by the supreme court of the state involved. If there is not a case directly on point, how does the Fourth Circuit get an answer? Well, in South Carolina they can certify a question to the Supreme Court of South Carolina. Look at the case that the Court references here, United States v. Clemons, No. 2022-001378, 2024 WL 1900632, at *4 (S.C. May 1, 2024), to see how the Supreme Court of South Carolina responded to the Fourth Circuit’s certified questions about mens rea in certain state convictions.
Interesting practice point. North Carolina is the only state in the country that does not allow a federal circuit court to certify questions to the state courts. See Town of Nags Head v. Toloczko, 728 F.3d 391, 393 (4th Cir. 2013). Virginia does. See Rule 5:40, Va. R. Sup. Ct. Maryland does. See Md. Code Ann., Cts. & Jud. Proc. § 12-603. West Virginia does, too. See W. Va. Code §§ 51-1A-1 to 51-1A-13. Longtime NC appellate practitioners may recall stalled efforts to amend our constitution to fix that omission a few years back.
[View source.]
