By Robert Phillips, Deputy Distrct Attorney (Ret).

Second Amendment Update: Felons in Possession of a Firearm:   

There’s been some debate lately as to whether California’s “Felon in Possession of a Firearm” prohibition (Pen. Code § 29800(a)(1)), as well as the prohibition for felons to possess ammunition (Pen. Code § section 30305(a)(1)), survive constitutional scrutiny after the U.S. Supreme Court’s landmark case decision in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. 1.  In Bruen, it was held (in a nutshell) that in light of the Second Amendment’s provision that “the . . . people” have a constitutional “right . . . “to keep and bear Arms,” the government must justify any legislation that it is inconsistent with that right.  Per Bruen: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” (Bruen, supra, at p. 24.)  

Just last year, in May, 2024, the federal Ninth Circuit Court of Appeals ruled in United States v. Duarte (9^th Cir. 2024) 101 F.4^th 657, that the federal “felon in possession of a firearm” statute (18 U.S.C § 922(g)(1)) violated a defendant’s Second Amendment rights and was unconstitutional, at least as to this defendant, he being “a non-violent offender (even if not “law-abiding”) who had served his time in prison and reentered society,” and was otherwise “an American citizen,” and thus “part of ‘the people’ whom the Second Amendment protects.” (Citing Bruen, at pg. 32.)  But then less than nine months later, along came People v. Richardson (Feb. 19, 2025) 108 Cal.App.5^th 1203, where California’s Second District Court of Appeals (Div. 8) held to the contrary, specifically ruling that “only law-abiding citizens are among the class of people covered by the text of the Second Amendment.”  In so ruling, the Ricardson Court noted that the U.S. Supreme Court’s Bruen decision is consistent with its own prior rulings in District of Columbia v. Heller (2008) 554 U.S. 570, and McDonald v. Chicago (2010) 561 U.S. 742, both of which held “that the Second [right to bear arms] and Fourteeth [due process] Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” (Italics added; Bruen, supra, at pp. 8–9.) The Richardson Court particularly emphasized (at pgs. 1207, 1210, 1211, & 1212.) that the petitioners in Bruen, in whose favor it ruled, were “law-abiding” citizens and, as such, “part of ‘the people’ whom the Second Amendment protects.”   

A number of other California cases are consistent with the rule that the Second Amendment applies only to law-abiding people.  (See People v. Odell (2023) 92 Cal.App.5^th 307, 316–317; People v. Ceja (2023) 94 Cal.App.5^th 1296, 1299–1302; In re D.L. (2023) 93 Cal.App.5^th 144, 166; and People v. Alexander (2023) 91 Cal.App.5^th 469, 474.)  This being the case, the Ricardson Court also noted that the Ninth Circuit’s decision in United States v. Duarte has been set aside with the Court ordering that an en banc (i.e., 11 judge) panel rehear the case. (July 17, 2024; 108 F.4^th 786.)  Also, while we’re on the topic, note that the U.S. Supreme Court, in United States v. Rahimi (2024) 602 U.S. 680, upheld the federal statute prohibiting possession of firearms by persons subject to domestic violence restraining orders. 

Ricardson, therefore, appears to reflect the correct rule.  The bottom line is that the protections described in the Second Amendment are not absolute.  Any evidence to the effect that the person whose rights are being questioned is not “law-abiding” is relevant on the issue of whether he or she is allowed, despite the Second Amendment, to possess firearms and/or ammunition.  The weight of authority is that he (or she) is not, with the only dissenting opinion being from the Ninth Circuit in United States v. Duarte which, as noted above, is up for rehearing.  In the meantime, it appears safe to enforce the rule of People v. Richardson to the effect that felons may not lawfully possess firearms or ammunition, as discussed above.     

Note:  On May 9^th, 2025, an en banc panel of the Ninth Circuit overruled its prior decision in Duarte, and held in an 8-to-3 vote that the federal “felon in possession of a firearm” prohibition (18 U.S.C § 922(g)(1)) is in fact constitutional, reversing its prior three-judge panel decision on this issue.  (See United States v. Duarte (9^th Cir. May 9, 2025) __ F.4^th __ [2025 U.S.App. LEXIS 11255].)