This is the golden age of gun litigation. In 2007, the Supreme Court said for the first time in the Heller case that the Second Amendment protects the right of private gun ownership, and in 2022, the Court held in the Bruen case that gun laws violate the Second Amendment unless comparable laws were in place when the amendment was adopted in 1791. Bruen makes it harder to regulate guns, but some gun-plaintiffs will still lose their cases. This is one such case.
The case is Zherka v. Bondi, issued on June 9, two years after oral argument Plaintiff was denied a gun permit because he is a convicted felon. He argues the Second Amendment is no barrier to gun ownership because he was not convicted of a violent felony. His conviction relates to making a false statement to a bank and signing a false income tax return. According to the Second Circuit (Lynch, Carney and Perez), he "defrauded federally insured banks of tens of millions of dollars and flouted the tax laws of this country to the tune of over one million dollars," landing him in jail for 37 months and three years of supervised release. He also paid $8.5 million in fines. That background description of plaintiff's life does not bode well for his case. Courts will emphasize these facts as a prelude to a defense victory.
In this case, the defendant is Pam Bondi, the attorney general. She is a defendant in name only. Zherka is really suing the United States, arguing that the federal statute cannot apply to him because he is not violent. This is an attractive argument. You do not want guns in the hands of violent people. Tax and other fraud is bad, but it's not street violence. Since this case was argued in 2023, before the current Justice Department took office, it was defended by the Biden Justice Department. I wonder what would have happened to this case if the current administration was defending this case.
As I mentioned, plaintiff can win the case if the historical tradition of firearm regulations renders the federal statute constitutional as to Zherka. This requires federal judges to serve as historians, giving new life to old treatises and law review articles. Judges are allowed to review laws post-dating 1791 in performing the "historical tradition" analysis. Over the years, Congress has made it illegal for felons to own a gun, not just for crimes of violence but for crimes punishable by one years' imprisonment. The Court notes that other federal circuits have held that the constitutional "founders likely would have considered disarmament permissible as punishment for a felony conviction since they passed laws instituting the death penalty and forfeiture of a perpetrator's entire estate as punishment for both nonviolent and violent felonies." The Court also notes that early American laws demonstrated that legislatures had broad authority to regulate firearms based on their status, i.e., political dissenters and racial minorities, suggesting that gun regulations back then did not turn on the propensity for violence, even if these early laws were morally reprehensible. Judge Lynch concludes as follows:
Because legislatures at or near the Founding had the authority to pass laws disarming large classes of people based on status alone, we conclude that the Second Amendment does not bar Congress from passing laws that disarm convicted felons, regardless of whether the crime of conviction is nonviolent.
We acknowledge and are sympathetic to the fact that felon-in-possession laws have contributed to the mass incarceration crisis and its associated racial inequalities.61 It may well be that there are sound policy reasons for restoring Section 925(c), or some similar regime, to effective operation. But that judgment is for Congress. The test that Bruen requires us to apply uses history as its guide, not policy concerns. Our task here is solely to follow the history.
This issue will reach the Supreme Court, maybe through this case. The Bruen framework is difficult for lower courts to apply, resulting in legal analysis that judges normally never engage in. This decision is loaded with historical discussion about old gun laws. All new Supreme Court rulings leave numerous unanswered questions. This case is one of them