Statutes Prohibiting Firearms by Felons Constitutional

In 2006, Alex Alexander was convicted of attempted murder and, among the many consequences of this conviction, he was banned from owning, possessing or purchasing a firearm or ammunition for life under federal law.

In 2021, in San Bernardino County Superior Court, a jury convicted him of being a felon in possession of a firearm and ammunition in violation of California Penal Code §§ 29800(a)(1) and 30305(a)(1).  The judge assigned to the case then sentenced him to 32 months in state prison, or sixteen months, doubled, based on his prior conviction for a “strike” offense under the Three Strikes Law.

Mr. Alexander appealed his conviction to the California Court of Appeal, Fourth District, arguing that the statutes prohibiting felons from possessing firearms and ammunition violated his Second Amendment rights to bear arms in light of the U.S. Supreme Court’s recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. ___, 142 S. Ct. 2111.

The Fourth Appellate District began its analysis by methodically first explaining that Mr. Alexander’s appeal involved a facial challenge to the statute, so the court must consider “only the text of the measure itself, not its application to the particular circumstances of an individual.”  Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069, 1084.

The appellate court then set forth the Second Amendment’s text, which states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Fourth District then explained that in District of Columbia v. Heller (2008) 554 U.S. 570, the United States Supreme Court struck down laws in the District of Columbia that banned the possession of operable handguns within one’s home.  The Court held that the Second Amendment confers “an individual right to keep and bear arms” for the core lawful purpose of self-defense,” which the Court identified as being “central to the Second Amendment right.” Id. at 628.

Heller explained, however, that “the Second Amendment is not unlimited” and it “not a right to keep and carry any weapon whatsoever in any manner whatsoever for whatever purpose.”  Heller, at 626.

In Bruen held that the test for assessing constitutionality under the Second Amendment is as follows: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”  Bruen further explained that in assessing whether a modern firearm regulation has a “relevantly similar” historical analogue (Id. at 2132), courts should consider “at least two metrics: how and why the regulation burdens a law-abiding citizen’s right to armed self-defense.”  Id. at 2133.

Turning to Mr. Alexander’s challenge to Penal Code §§ 29800(a)(1) and 30305(a)(1), the Fourth Appellate District disagreed that these statutes violated his rights under the Second Amendment because according to Heller and Bruen only law abiding citizens are included among “the people” whose right to bear arms is protected by the Second Amendment.  Heller defined the right conferred by the Second Amendment as “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, supra, 554 U.S. at 635, italics added; id. at 625).

The Fourth Appellate District then stated what is perhaps the critical part of its reasoning: “A felon, by definition, is therefore someone who has committed a crime and as such is not law-abiding.  Felons, accordingly, are not included among the class of people afforded rights under the Second Amendment.” 

Moreover, Heller recognized that nothing in the opinion cast doubt on the “longstanding prohibitions on the possession of firearms by felons.” Heller, at 626.  Bruen reaffirmed that the Second Amendment right “to use arms for self-defense” belong to “law abiding, responsible citizens.”  Bruen, supra, 142 S. Ct. at p. 2131; see also p. 2138, fn. 9, 2156.

Since Mr. Alexander was a felon and therefore not a “law-abiding citizen,” the Fourth District affirmed his status as being prohibited from owning or possessing a firearm and thus, his conviction was affirmed.

We find this ruling a bit strained because it means someone who is 55 years old, but who committed a felony, perhaps a possession of a controlled substance felony, at age 21, would be regarded as not a “law abiding citizen” even if he or she had no intervening convictions.