No. 23A509

Melynda Vincent v. Merrick B. Garland, Attorney General

Lower Court: Tenth Circuit
Docketed: 2023-12-05
Status: Presumed Complete
Type: A
Experienced Counsel
Tags: bruen-test circuit-split constitutional-history firearm-possession non-violent-felony second-amendment
Key Terms:
SecondAmendment
Latest Conference: N/A
Question Presented (AI Summary)

Whether the Second Amendment permits the federal government to permanently prohibit possession of firearms by individuals convicted of non-violent felonies

Question Presented (from Petition)

but is an inferior vehicle to this case. 1. An extension is warranted because the question presented involves an acknowledged circuit split on a vitally important issue. The Court of Appeals concluded that the federal ban on felons’ possession of a firearm is consistent with the Second Amendment, even as applied to non-violent felons like Ms. Vincent. Vincent v. Garland, 80 F.4th 1197, 1199 (10th Cir. 2023). In doing so, the Court of Appeals failed to examine this Nation’s history and tradition of firearm possession by felons, even though this Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 142 8. Ct. 2111, 2129-30 (2022), requires just such an inquiry. It did not matter, according to the Court of Appeals, that Ms. Vincent was convicted of a single non-violent felony over a decade ago, or that the United States could point to no Founding-era support for permanent disarmament of non-violent felons. As this Court is aware, the Courts of Appeals openly disagree about § 922(g)(1) is consistent with the Second Amendment as applied to non-violent felons. See Pet. for Certiorari at 23-25, Garland v. Range, No. 23-374 (Oct. 5, 2023). The Third Circuit has held that 18 U.S.C. § 922(g)(1) “cannot constitutionally strip” an individual convicted of a non-violent offense of his right to possess a firearm. Range v. Att’y Gen. of U.S., 69 F.4th 96, 106 (3d Cir. 2023) (en banc). The Eighth Circuit, by contrast, has held that “there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1),” because the statute as a whole is “within the historical tradition” of firearms regulation. United States v. Jackson, 69 F.4th 495, 502, 506 (8th Cir. 2023). The Tenth Circuit took the same tack here: The court held that it had “no basis to draw constitutional distinctions based on the type of felony involved” because “the federal ban for any convicted felon’s possession of a firearm” was constitutional. Vincent, 80 F.4th at 1202. This entrenched split is sure to deepen soon, as the Second, Fifth, and Seventh Circuits are poised to decide cases presenting the same question. See Zherka v. Garland, No. 22-1108 (2d Cir., May 8, 2023); Atkinson v. Garland, 70 F.4th 1018, 1023 (7th Cir. 2023); United States v. Bullock, No. 3:18-CR-165, 2023 WL 4232309, at *2 (S.D. Miss. 2023). The constitutionality of § 922(g)(1) as applied to non-violent felons arises frequently. In 2021 alone, over 55,000 individuals were convicted of a federal felony, but the overwhelming majority—96.3%—were non-violent offenses. U.S. Dep’t of Justice, Federal Justice Statistics, 2021 at 12 tbl. 7 (Dec. 2022). The figures are similar state felony convictions. See Jackson, 69 F.4th at 502 n.2. In short, whether the Second Amendment allows the federal government to deprive non-violent felons of their right to possess a firearm is a question affecting hundreds of thousands of Americans each year. 2. A short extension to complete the petition is also warranted because counsel, who are representing Ms. Vincent on a pro bono basis, have multiple other obligations that coincide with the current deadline. Mr. Green presented oral argument to this Court in Brown v. United States, No. 22-6389, on November 27. His preparations occupied much of his time in the preceding weeks. Mr. Green and Mr. Loss-Eaton are also responsible for preparing multiple petitions for writs of certiorari currently due in December. Mr. Loss-Eaton is additionally responsible for briefing issues remanded by this Court to the Pennsylvania state courts in Mallory v. Norfolk Southern Railway, 600 U.S. 122, 127 n.3 (2023), and is preparing to present oral argument before the Sixth Circuit in Norfolk Southern Railway v. Dille Road Recycling, LLC, No. 22-4037, on December 6. Finally, students from the Northwestern Supreme Court Practicum will assist with the preparation

Docket Entries

2023-12-05
Application (23A509) granted by Justice Gorsuch extending the time to file until December 21, 2023.
2023-12-01
Application (23A509) to extend the time to file a petition for a writ of certiorari from December 14, 2023 to December 21, 2023, submitted to Justice Gorsuch.

Attorneys

Melynda Vincent
Jeffrey T. GreenSidley Austin, Petitioner
Jeffrey T. GreenSidley Austin, Petitioner