As part of The Trace’s series about New York State Rifle & Pistol Association v. Bruen, the 2022 decision by the U.S. Supreme Court, reporter Chip Brownlee first broke down the ruling — to explain how the decision fundamentally changed our country’s approach to restricting guns— and the issue of concealed carry.
On Thursday, the news site, which is devoted to examining gun violence, began rolling out a series of stories exploring the ruling’s wide-ranging effects. For the series, The Trace amassed a database of more than 1,600 federal court decisions on Second Amendment challenges that cited Bruen over the past two years, building and expanding upon the work of Pepperdine Law professor Jake Charles, who compiled a year’s worth of Bruen-based rulings in Second Amendment cases from June 2022 to June 2023.
The Trace’s first story of the series looks at how people with felony convictions are using Bruen to challenge the ban on them possessing guns, straining the court system and raising public safety concerns. For that story, The Trace reviewed more than 2,000 court cases that cited Bruen and found that no group has used the decision more often than people whose felony records bar them from possessing guns. The Trace also found that public defenders often see Bruen as a chance to challenge gun charges for defendants charged with gun possession – to challenge oft-used statutes that have put many of their clients in prison.
Two years ago, the 6-3 Bruen decision, authored by conservative Justice Clarence Thomas, recognized, for the first time, an individual right to carry a loaded gun in public for self-defense.
“More consequentially, the Supreme Court laid out a new test for evaluating the constitutionality of other firearm regulations. That test has placed dozens of gun laws under threat, flooded federal courts with lawsuits, and transformed firearm regulation across the nation as lower court judges disagree on how to apply the ruling,” Brownlee writes, noting the new mandate has created confusion and frustration in courtrooms across the country. “Prosecutors have been required to compile what amounts to American history theses to justify charges against people with felony convictions who were allegedly caught with a firearm. Judges must be experts not only in the intricacies of law but also in the nation’s often conflicted history of firearm regulation, a task for which many feel ill-equipped. “
A former federal judge, Paul Grimm, said that, a decade ago, it was rare to see people convicted of felonies challenge their gun bans. “You never would have heard of a convicted felon saying, ‘I have a constitutional right as a convicted felon to have a firearm,’” Grimm said. “You didn’t see those kinds of things.”
The Trace’s story traces its effect in federal court, where the crime of being a felon in possession of a firearm is one of the most commonly charged crimes, according to the U.S. Sentencing Commission. In 2022 and 2023, more than 7,000 people with felony records were convicted of this crime — in the federal court system alone.
The majority of these defendants were Black, reflecting the criminal justice system’s racial inequities, which have left thousands of people with felony convictions for minor drug offenses like marijuana possession. In The Trace’s review, the majority of defendants challenging the felon gun ban were represented by public defenders, who see Bruen as an unexpected opportunity to challenge a statute that has long resulted in mass incarceration.
“I represent a lot of kids who have never in their lives even fired a gun,” said Christopher Smith, a public defender in the Bronx. “But it’s a dangerous neighborhood.” His clients, he added, would rather be tried for carrying an illegal gun than killed for not having one to defend themselves. Bruen has shifted the legal strategy in gun possession cases, particularly for clients who had prior felony convictions, Smith said. “The biggest change is now we just write a different motion in gun cases, where we challenge on Second Amendment grounds.”
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