For decades, otherwise lawful gun owners have been denied their rights protected under the Second Amendment due to a federal law. The Fifth Circuit Court of Appeals just decided a case claiming that law unconstitutional as applied to a Mr. Hembree.
Felon in Possession
People familiar with the Second Amendment and the laws around it are probably also familiar with the term “felon in possession.” While many states have felon in possession laws, the law in question in this case is 18 USC §922(g)(1), which reads.
(g) It shall be unlawful for any person-
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; …
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
18 USC §922
While I believe most Second Amendment advocates would agree that convicted violent felons should be legally prohibited from possessing firearms, as our laws have grown, more and more crimes have been put on the books with a punishment of one year or more. Should someone lose their rights protected under the Second Amendment for a non-violent crime? That was the question heard by the Fifth Circuit in the case USA v. Hembree.
Hembree was convicted in 2018 of possession of methamphetamine in Mississippi state court. In 2022, Hembree was charged with possession of a firearm by a convicted felon in violation of § 922(g)(1). He filed a motion to dismiss the indictment, arguing that § 922(g)(1) violates the Second Amendment as applied to him in light of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). The district court denied his motion on December 1, 2023.
USA v. Hembree
Having been convicted in 2018 if possession of methamphetamine may not put Mr. Hembree in the most favorable light to many Americans, but that does justify the loss of his rights?
He contends that the government has not and cannot prove that disarming Hembree based on his conviction for possession of methamphetamine fits within this country’s traditional regulation of firearms.
USA v. Hembree
This calls back to the Supreme Court case New York State Rifle and Pistol Association v. Bruen, where the court laid out a two-part test for laws that infringe on gun rights. First, does the action prohibited fall within the plain language of the Second Amendment? And second, does it fall within the history and tradition of firearm regulation in this country? I’ll go into that deeper in the section on NYSRPA v. Bruen.
Hembree also raises four challenges for the first time on appeal: (1) that § 922(g)(1) is facially unconstitutional under the Second Amendment; (2) that § 922(g)(1) is unconstitutionally vague; (3) that § 922(g)(1) violates the Commerce Clause; and (4) that § 922(g)(1) violates the Fifth Amendment’s Equal Protection Clause. The government contends that these challenges were waived by the appeal waiver in Hembree’s plea agreement, which only preserved his as-applied challenge.
USA v. Hembree
Because of how the court found in Mr. Hembree’s as-applied Second Amendment challenge, they did not bother to look into the other claims. However, a concurring opinion did discuss the Commerce Clause question, which I’ll cover later.
NYSRPA v. Bruen
Since the court’s analysis focused on the Bruen case, I think it’s worth taking a little time to review it here, starting with how the Circuit Courts have applied the SCOTUS precedent in regards to this law.
Circuits have diverged in application of Bruen’s framework. “[M]any of our sister circuits have held that § 922(g)(1) is constitutional as applied to all felons.” United States v. Mancilla, … Thus far, the Second, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits have taken this approach. … In Diaz, however, we recognized that § 922(g)(1) could be unconstitutional as applied to certain predicate felonies.
USA v. Hembree
Six of the circuits have found that §922(g)(1) could be constitutional. While the court often refers to Diaz in this opinion, like so many other courts they place their previous decision above the supreme law of the land. However, not all of the circuit courts have followed suit.
Separately, “the Third and Sixth Circuits allow as-applied challenges to § 922(g)(1), and both circuits require district courts to make individualized determinations of dangerousness when adjudicating those challenges. Courts in those circuits consider the person’s entire criminal history, including the predicate offense and its underlying conduct.”
USA v. Hembree
Just because a person is a felon, are they automatically considered dangerous? I’ve heard of a report that claims the average American commits three federal felonies a day. It is an example of how the bureaucracy, accompanied by vague laws, makes felonies out of everyday life. However, the definition of a felony is a serious crime, not necessarily a violent one.
A serious crime, characterized under federal law and many state statutes as any offense punishable by death or imprisonment in excess of one year.
Felony – The Free Legal Dictionary
Before we get into the discussion of dangerousness, let’s wrap up the Bruen discussion with a look at the historical analogues.
First, [the government] points to “[h]istorical laws authorizing severe punishment for knowing possession of contraband,” arguing that these laws “show that permanent disarmament of those convicted of possessing illicitly obtained goods today, like Hembree, is consistent with the Second Amendment.” …
Hembree takes a narrower view of the historical analogue. He cites that, until a century ago, “there was virtually no effective regulation of narcotics in the United States.”
USA v. Hembree
The government points to historic severe punishment for the possession of contraband, but did that include depriving people of their rights protected by the Constituiton? And according to Mr. Hembree, until a century ago, there was little if any regulation of narcotics in the United States, so how can there be a historical analog for his punishment?
Dangerousness
I think most reasonable people would consider the deprivation of the right to keep and bear arms reasonable if someone is convicted, under due process of law, of a crime that shows they are a danger to others. But does simple drug possession show someone is dangerous?
The government’s second historical basis for permanently disarming Hembree is that our Nation has maintained a “history and tradition of disarming dangerous individuals.” Specifically, the government reasons that “[d]rug crimes are inherently dangerous, even in situations where a defendant has ʻonly’ been convicted of ʻmere’ drug possession like Hembree, because the possession of narcotics entails the dealing with and enriching of drug traffickers.”
USA v. Hembree
This seems to me to be an artifact of the nation’s “War on Drugs.” The idea that “drugs are dangerous,” whether or not the person involved has shown any signs of violence. Why? Because possession means you enriched a drug trafficker. And we all know that drug traffickers are involved with dangerous cartels. So it’s not the drug possession that’s dangerous, but the purchase.
This raises another problem for Mr. Hembree. In my mind, that is subsection (3) if §922(g):
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
18 USC §922
Can we logically assume that someone in possession of drugs is a user or addict of said drug? Since the government did not charge Mr. Hembree with a violation of §922(g)(3), I can only assume they did not have evidence of his use or addiction to methamphetamines.
Furthermore, look through the Constitution all you want and you will not find a power delegated to the United States to control substances. Congress can control foreign and interstate commerce, but not the product itself. That means the Controlled Substance Act itself is unconstitutional and void. So how could someone be in possession of a substance controlled by an unconstitutional law?
The Commerce Clause
Judge Don R. Willett offered a concurring opinion where he focused on the Commerce Clause claim, which the main decision did not consider.
As I have previously explained, 18 U.S.C. § 922(g)(1)—the federal felon-in-possession ban—rests uneasily alongside a bedrock principle: “Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” Given the expansive interpretation of the commerce power, “the natural first place to look is the Interstate Commerce Clause,” which grants Congress the “Power . . . [t]o regulate Commerce . . . among the several States.” Perplexingly, the Supreme Court once declared that this power “is not confined to the regulation of commerce among the states.” More recently, however, the Court has “endeavored to more sharply define and enforce limits on” the commerce power, confining it to “three general categories
USA v. Hembree
Amen. How often have I pointed out that Congress writes laws against things that may have traveled through interstate or foreign commerce, but not the commerce itself? How did they get away with that? Based on SCOTUS’ unwillingness to follow the Constitution of the United States, they allow Congress to violate the supreme law of the land. While the court may claim to have “endeavored” to help clean up the mess they have made, I have seen extremely little evidence to support that.
The Judiciary should heed that lesson as well. In an appropriate case, I remain open to reconsidering whether § 922(g)(1) truly falls within Congress’s enumerated powers. For now, however, I join the majority’s conclusion that § 922(g)(1), as applied here, violates Hembree’s right to keep and bear arms.
USA v. Hembree
I do hope Judge Willett gets the chance to reconsider whether or not §922(g)(1) falls within Congress’ powers. And I hope he gets the chance very soon.
Conclusion
Before we look at the court’s decision, what do you think? Should Mr. Hembree be denied his right, protected by the Constitution of the United States, for mere possession of a controlled substance?
Consider this: Does a deprivation of rights for a non-violent felon violate the Eighth Amendment’s prohibition against cruel punishment?
willfully causing pain or distress; merciless
Cruel – The Free Legal Dictionary
Does a deprivation of rights for a non-violent felon cause pain or distress? Is it merely merciless? Or is this a simple violation of the Fifth Amendment? While Mr. Hembree claims it violates the Fifth Amendment’s “Equal Protection Clause,” there is no Equal Protection Clause in the Fifth Amendment. However, there is a Due Process Clause.
No person shall … be deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V
Did Congress protect the rights of individuals when they deprived them of the property they have in their rights for a non-violent felony? Should someone be deprived of their ability to defend themselves when they’ve not been shown to be a danger to others? Should someone be deprived of their liberty to exercise their rights simply because the government claims that someone else did something dangerous in order for that person to gain access to the substance? This court did not consider any of these questions. They simply followed what others had said.
Our court’s § 922(g)(1) caselaw has rapidly evolved and continues to do so. But we are bound by our precedent, pending further clarification from our full court to reconcile our incremental approach or from the Supreme Court to reconcile the circuit split. We therefore find that the government did not meet its burden to prove that history and tradition support simple possession as a valid felony predicate under § 922(g)(1). We decline to reach so far as to find possession to be part and parcel with the drug trade, and the government’s analogy to possession of contraband has been foreclosed. … Accordingly, we are compelled to reverse Hembree’s conviction as unconstitutional as-applied.
USA v. Hembree
This is another example of a court coming to the correct decision, even if based on the wrong standard. After all, the judges swore an oath to uphold the Constitution, not their precedents. Now if we can only get Judge Willett the case he asked for.
