Court rejects Second Amendment challenges to 18 U.S.C. § 922(g)(1)

Defendant James Barton entered a conditional guilty plea to two counts of being a felon-in-possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), reserving the right to argue on appeal that those convictions violated his Second Amendment right to keep and bear arms. The Third Circuit rejected Barton's challenges, holding that § 922(g)(1) was constitutional both on its face and as applied to Barton. See United States v. Barton, No. 09-2211 (3d Cir. March 4, 2011).

With respect to Barton's facial challenge, the Third Circuit concluded that it was bound by the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008), to reject that challenge. The Heller Court found that the individual right to keep and bear arms, while fundamental, was not unlimited, id. at 626, and certain "longstanding prohibitions on the possession of firearms" are "presumptively lawful." id. at 626-27 n. 26. This includes a prohibition on the possession of firearms by felons. Id. at 626-27. The Third Circuit rejected Barton's argument that Heller's list of "presumptively lawful" regulations was dicta and, instead, found that discussion outcome-determinative. Accordingly, the Court held that it was bound by Heller to deny Barton's facial constitutional challenge to § 922(g)(1).

With respect to Barton's as-applied challenge, the Third Circuit "look[ed] to the historical pedigree of 18 U.S.C. § 922(g) to determine whether the traditional justifications underlying the statute support a finding of permanent disability in this case." Op. at 9. The Court found that "the common law right to keep and bear arms did not extend to those who were likely to commit violent offenses." Op. at 10 (emphasis added). Thus, a felon convicted of a minor, non-violent crime or a felon whose crime of conviction was decades old who was able to show that he was no more dangerous than a typical, law-abiding citizen and posed no continuing threat to society could possibly raise a successful as-applied challenge to § 922(g)(1). Barton's criminal history, which included convictions for drug-trafficking and receiving stolen weapons in the recent past, precluded him from raising a successful as-applied challenge. Accordingly, the Third Circuit found no error in the district court's dismissal of this challenge.

Finally, Barton maintained that even if his prior convictions precluded him from possessing a firearm, he should retain the right to keep a firearm in his home for self-defense. The Third Circuit noted that this argument was foreclosed by its decision in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), which holds that "a felony conviction disqualifies an individual from asserting" his fundamental right to "defense of hearth and home." Id. at 92.