USCA4 Appeal: 22-4525 Doc: 60 Filed: 12/18/2024 Pg: 1 of 19
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4525
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MATTHEW RYAN HUNT,
Defendant – Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Irene C. Berger, District Judge. (2:21-cr-00267-1)
Argued: October 30, 2024 Decided: December 18, 2024
Before WYNN, HARRIS, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Heytens wrote the opinion, which Judge Wynn and Judge Harris joined.
ARGUED: Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids, Michigan, for Appellant. Mahogane Denea Reed, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Nicole M. Argentieri, Principal Deputy Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William S. Thompson, United States Attorney, Jeremy B. Wolfe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. USCA4 Appeal: 22-4525 Doc: 60 Filed: 12/18/2024 Pg: 2 of 19
TOBY HEYTENS, Circuit Judge:
In United States v. Canada, No. 22-4519, 2024 WL 5002188 (4th Cir. Dec. 6, 2024),
this Court reaffirmed that 18 U.S.C. § 922(g)(1)—commonly known as the felon-in-
possession statute—is facially constitutional, while leaving for another day whether (and
if so, when) as-applied challenges may succeed. Today, we answer that question.
Before the Supreme Court’s decisions in New York State Rifle & Pistol Association,
Inc. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 144 S. Ct. 1889 (2024), this
Court held that a person who has been convicted of a felony cannot make out a successful
as-applied challenge to Section 922(g)(1) “unless the felony conviction is pardoned or the
law defining the crime of conviction is found unconstitutional or otherwise unlawful.”
Hamilton v. Pallozzi, 848 F.3d 614, 626 (4th Cir. 2017). Consistent with the Eleventh
Circuit’s decision in United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024), we hold that
neither Bruen nor Rahimi meets this Court’s stringent test for abrogating otherwise-
controlling circuit precedent and that our precedent on as-applied challenges thus remains
binding. In addition—and in the alternative—we hold that Section 922(g)(1) would survive
Second Amendment scrutiny even if we had the authority to decide the issue anew. Having
concluded “there is no need for felony-by-felony litigation regarding the constitutionality
of ” Section 922(g)(1), United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024), we
reject appellant Matthew Hunt’s as-applied challenge without regard to the specific
conviction that established his inability to lawfully possess firearms.
I.
In late 2021—after the Supreme Court’s groundbreaking decisions in District of
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Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742
(2010), but before Bruen or Rahimi—a grand jury charged Hunt with violating
Section 922(g)(1). That statute prohibits people who have “been convicted in any court of”
“a crime punishable by imprisonment for a term exceeding one year” from possessing
firearms. 18 U.S.C. § 922(g)(1). The indictment identified Hunt’s 2017 conviction for
breaking and entering, in violation of West Virginia Code § 61-3-12, as the predicate
offense for the Section 922(g)(1) charge.
In May 2022—the month before the Supreme Court decided Bruen—Hunt pleaded
guilty without raising a Second Amendment challenge. On appeal, however, Hunt argues
that Section 922(g)(1) “violates the Second Amendment, both facially and as-applied to”
him. Hunt Br. 11. He also asserts the district court erred in applying a four-point
enhancement to his offense level under Section 2K2.1(b)(6)(B) of the federal sentencing
guidelines.
II.
The parties disagree about the standard of review for Hunt’s constitutional
challenge. When properly preserved, this Court generally reviews constitutional claims de
novo. See, e.g., United States v. Pruess, 703 F.3d 242, 245 (4th Cir. 2012). But matters
change when a defendant fails to timely raise an issue before the district court. In that
situation, reviewing courts typically apply the more government-friendly plain-error
doctrine. See, e.g., United States v. Olano, 507 U.S. 725, 733–34 (1993).
In his opening brief—which was filed after Bruen but before Rahimi—Hunt spends
several pages arguing the plain-error standard is inapplicable despite his admitted failure
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to raise a Second Amendment argument in the district court. He relies on Class v. United
States, 583 U.S. 174 (2018), which held that even an unconditional guilty plea does not
“bar a criminal defendant from later appealing his conviction on the ground that the statute
of conviction violates” the Second Amendment. Id. at 176. In Hunt’s view, “[t]he same
principles that motivated the decision in Class militate against finding forfeiture
here.” Hunt Br. 13. In contrast, the government’s response brief—also filed before
Rahimi—ignores that argument and simply asserts, in a single conclusory sentence, that
the plain-error standard applies. See Gov’t Br. 12.
After briefing was complete, this Court held the case in abeyance pending a decision
in another case involving a facial challenge to Section 922(g)(1). Once that case was
decided, Hunt asked permission to file supplemental briefs “[b]ecause numerous
significant Second Amendment cases have been decided since Hunt filed his reply brief.”
ECF 45, at 1. The government did not oppose the motion, and this Court granted it.
In his supplemental brief, Hunt notes that the government never responded to his
argument that the plain-error standard does not apply here. Hunt also points out that the
Ninth Circuit agreed with his view in its since-vacated opinion in United States v. Duarte,
101 F.4th 657 (2024), vacated and reh’g en banc granted, 108 F.4th 786 (9th Cir. 2024)
(mem.). In its supplemental brief, the government finally engages with Hunt’s standard of
review argument, contending in two brief paragraphs that Hunt’s assertions improperly
conflate waiver (the issue in Class) and forfeiture (the issue here), and that they conflict
with the Supreme Court’s consistent refusal to recognize a futility exception to plain-error
review.
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This is not how things are supposed to work. In the typical case—that is, one without
a supplemental briefing order—the government’s failure to respond to an argument
featured prominently in an opening brief would have deprived this Court of an adversarial
presentation about a disputed legal issue. True, there was a supplemental briefing order
here. But we did not permit supplemental briefing to hear further argument about the
relevance of Class—a decision that was already more than six years old at that point.
Cf. United States v. Heyward, 42 F.4th 460, 470 n.6 (4th Cir. 2022) (emphasizing that
parties may not use post-argument letters to advance arguments or present authorities that
could have been included in the merits-stage briefs). And even in its supplemental brief,
the government fails to address the main argument against plain-error review flagged by
the Ninth Circuit’s vacated decision in Duarte, which relies on the interplay between
Federal Rules of Criminal Procedure 12 (which governs pretrial motions) and 52(b) (which
governs appellate review of forfeited claims). See Duarte, 101 F.4th at 663 (discussing
Rules 12(b)(3) and 52(b)).
We think the prudent course is to assume—solely for the sake of argument—that
the plain-error standard does not apply here and that we review Hunt’s constitutional claims
de novo. We have often taken that approach when the standard of review is
disputed, see, e.g., United States ex rel. Doe v. Credit Suisse AG, 117 F.4th 155, 160–61
(4th Cir. 2024); Bowman v. Stirling, 45 F.4th 740, 752–53 (4th Cir. 2022); United States
v. Davis, 184 F.3d 366, 372 n.7 (4th Cir. 1999), and neither party challenges our authority
to do so. Such a course seems particularly warranted here, both because the briefing about
the standard of review leaves much to be desired and a report by the federal rules advisory
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committee specifically flags—but does not purport to resolve—questions about the proper
relationship between Rule 12 and Rule 52. See United States v. Guerrero, 921 F.3d 895,
898 (9th Cir. 2019) (per curiam) (discussing the Report of the Advisory Committee on
Federal Rules of Criminal Procedure to the Standing Committee on Rules of Practice and
Procedure 5–6 (May 2013)).
III.
Turning to the merits, we reject Hunt’s facial and as-applied Second Amendment
challenges. A panel of this Court has held that Section 922(g)(1) remains facially
constitutional after Bruen and Rahimi, see Canada, 2024 WL 5002188, at *2, and we are
bound by that decision. See, e.g., McMellon v. United States, 387 F.3d 329, 333 (4th Cir.
2004) (en banc) (“one panel cannot overrule another”). For that reason, Hunt’s facial
challenge fails.
We also reject Hunt’s as-applied challenge. First, we conclude that neither Bruen
nor Rahimi abrogates this Court’s precedent foreclosing as-applied challenges to
Section 922(g)(1) and those decisions thus remain binding. Second—and in the
alternative—we conclude that Section 922(g)(1) would pass constitutional muster even if
we were unconstrained by circuit precedent.
A.
“[A] panel of this court is bound by prior precedent from other panels” and may not
overturn prior panel decisions unless there is “contrary law from an en banc or Supreme
Court decision.” Taylor v. Grubbs, 930 F.3d 611, 619 (4th Cir. 2019) (quotation marks
removed). “We do not lightly presume that the law of the circuit has been overturned.” Id.
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(quotation marks removed). Instead, “[a] Supreme Court decision overrules or abrogates
our prior precedent only if our precedent is impossible to reconcile with” that decision.
Short v. Hartman, 87 F.4th 593, 605 (4th Cir. 2023) (quotation marks removed; emphasis
added). “If it is possible for us to read our precedent harmoniously with Supreme Court
precedent, we must do so.” Id. (quotation marks removed).
Neither the Second Amendment nor Bruen are immune from these general rules. To
the contrary, our en banc Court recently concluded that Bruen “did not abrogate” the
Court’s pre-Bruen holding that a Maryland statute regulating certain assault weapons was
constitutional. Bianchi v. Brown, 111 F.4th 438, 448 (4th Cir. 2024) (en banc). Applying
the same rules here, we conclude that this Court’s previous decisions rejecting as-applied
challenges to Section 922(g)(1) remain binding because they can be read “harmoniously”
with Bruen and Rahimi and have not been rendered “untenable” by them. Short, 87 F.4th
at 605 (first quote); Rose v. PSA Airlines, Inc., 80 F.4th 488, 504 (4th Cir. 2023) (second
quote).
The first relevant pre-Bruen decision is United States v. Moore, 666 F.3d 313
(4th Cir. 2012), which rejected facial and as-applied challenges to Section 922(g)(1).
See id. at 319–20. Moore relied on the Supreme Court’s statements in District of Columbia
v. Heller, 554 U.S. 570 (2008), that “nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons” and that restrictions
on felons possessing firearms were “presumptively lawful regulatory measures.” Id. at
317–18 (quoting Heller, 554 U.S. at 626, 627 n.26). Moore further concluded the defendant
there did “not fall within the category of citizens to which the Heller court ascribed the
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Second Amendment protection of ‘the right of law-abiding responsible citizens to use arms
in defense of hearth and home.’ ” Id. at 319 (quoting Heller, 554 U.S. at 635).
To be sure, Moore left open the “possibility” that some hypothetical challenger
could “rebut the presumptive lawfulness of § 922(g)(1) as applied” to that person. 666 F.3d
at 320. But this Court’s later decisions repeatedly rejected such challenges, including those
brought by “allegedly non-violent felons.” Pruess, 703 F.3d at 247; see United States v.
Smoot, 690 F.3d 215, 221–22 (4th Cir. 2012). And this Court ultimately held “[a] felon
cannot be returned to the category of ‘law-abiding, responsible citizens’ for the purposes
of the Second Amendment . . . unless the felony conviction is pardoned or the law defining
the crime of conviction is found unconstitutional or otherwise unlawful,” thus foreclosing
the vast majority of as-applied challenges. Hamilton, 848 F.3d at 626.
Those decisions are neither impossible to reconcile with Bruen and Rahimi nor rest
on a mode of analysis that has been rendered untenable by them. This Court’s post-Heller
and pre-Bruen decisions relied on two strands of authority to reject as-applied challenges
to Section 922(g)(1): (1) Heller’s pronouncement that restrictions on firearms possession
by those who have been convicted of felonies were “longstanding” and “presumptively
lawful”; and (2) a determination—stemming from Heller—that such individuals were, as
a group, excluded from the category of “law-abiding, responsible citizens” whose conduct
is protected by the Second Amendment. Nothing in Bruen or Rahimi contradicts either
rationale.
Far from abandoning Heller’s language about “longstanding” and “presumptively
lawful” restrictions on felons possessing firearms, the Supreme Court has repeatedly
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reaffirmed its applicability. Two years after Heller, the plurality opinion in McDonald v.
City of Chicago, 561 U.S. 742 (2010), described Heller as making “clear . . . that our
holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on
the possession of firearms by felons and the mentally ill’ ” and again “repeat[ed] those
assurances.” Id. at 786 (quoting Heller, 554 U.S. at 626). The Court’s opinion in Bruen did
not repeat those assurances. But that opinion also “did not mention felons or section
922(g)(1),” Dubois, 94 F.4th at 1293, and it described its holding as “consistent with” and
“[i]n keeping with” Heller. See Bruen, 597 U.S. at 10, 17; see also id. at 72 (Alito, J.,
concurring) (noting that the Court’s opinion “decide[d] nothing about who may lawfully
possess a firearm”). And most recently, in Rahimi, the Court reiterated Heller’s
pronouncement that “prohibitions, like those on the possession of firearms by ‘felons and
the mentally ill,’ are ‘presumptively lawful.’” Rahimi, 144 S. Ct. at 1889 (quoting Heller,
554 U.S. at 626, 627 n.26). In short, nothing in Bruen or Rahimi undermines—much less
fatally—this Court’s previous reliance on Heller’s express statements about this exact sort
of law. Accord Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211, 221–22 (4th Cir. 2024)
(en banc) (considering Bruen and relying on Heller’s “longstanding” and “presumptively
lawful” language).
The same is true about this Court’s pre-Bruen conclusion that people who have been
convicted of felonies are outside the group of “law-abiding responsible citizen[s]” that the
Second Amendment protects. Moore, 666 F.3d at 319; accord Hamilton, 848 F.3d at 626.
To be sure, Bruen later disavowed the second step of this Court’s former two-part test for
considering Second Amendment challenges as “one step too many.” 597 U.S. at 19
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(rejecting “means-end scrutiny”). But Bruen also described the first step of our former test
as “broadly consistent with Heller.” Id. And our en banc Court has concluded that Bruen
“did not disturb” the analysis this Court conducted under that “first step,” including
holdings about whether a given situation is “outside the ambit of the individual right to
keep and bear arms.” Bianchi, 111 F.4th at 448 (quotation marks removed).
Because Bruen rejected only one step of our former two-part test, the distinction
between different types of pre-Bruen decisions matters. Moore did not rely on any sort of
“means-end scrutiny” in rejecting the defendant’s Second Amendment challenge. Bruen,
597 U.S. at 19. Instead, it held the defendant’s conduct was “plainly outside the scope of
the Second Amendment.” Moore, 666 F.3d at 320. So too in Pruess, which said the
defendant’s “conduct lies outside the scope of the Second Amendment’s protection” and
rejected the defendant’s assertion “that historical sources weigh in his favor.” 703 F.3d at
246 & n.3. And again in Hamilton, which never discussed means-end scrutiny and resolved
the case at “step one” of this Court’s former test. 848 F.3d at 627. Bruen and Rahimi thus
provide no basis for a panel to depart from this Court’s previous rejection of the need for
any case-by-case inquiry about whether a felon may be barred from possessing firearms.
See Hamilton, 848 F.3d at 626–29.
B.
What we have said so far is enough to reject Hunt’s as-applied Second Amendment
challenge. But even if we were deciding this case unconstrained by this Court’s pre-Bruen
precedent, Hunt’s challenge would still fail. Under Bruen, courts must first consider
whether “the challenged law regulates activity falling outside the scope of the [Second
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Amendment] right as originally understood.” 597 U.S. at 18 (quotation marks removed).
If the law regulates activity protected by the right, “the government must demonstrate that
the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id.
at 17. We conclude Hunt’s as-applied challenge fails both parts of that test.
1.
Our en banc Court recently concluded “the limitations on the scope of the Second
Amendment right identified in Heller” are properly assessed as part of Bruen’s first step
because those limitations “are inherent in the text of the amendment.” United States v.
Price, 111 F.4th 392, 401 (4th Cir. 2024) (en banc). The proper inquiry, Price explained,
requires us to “look[] to the historical scope of the Second Amendment,” and use that
history to interpret what is and is not protected by the constitutional text. Id.
Heller repeatedly described the core of the Second Amendment right as protecting
“law-abiding” citizens. 554 U.S. at 625, 635. In contrast, Heller made clear that restrictions
on firearms possession by those who are not law-abiding—i.e., felons—are “presumptively
lawful.” Id. at 626, 627 n.26. These limitations arise from the historical tradition. See id. at
626 (referring to prohibitions on felons possessing firearms as “longstanding”); id. at 625
(“For most of our history . . . the Federal Government did not significantly regulate the
possession of firearms by law-abiding citizens.” (emphasis added)). Taken together, Heller
instructs that the “pre-existing right” “codified” in the Second Amendment protects
firearms possession by the law-abiding, not by felons. Id. at 592.
Nothing in Bruen or Rahimi alters this reading of Heller. As for Bruen, our en banc
Court has already held that “[n]othing in Bruen abrogated Heller’s extensive discussion of
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the contours of the scope of the right enshrined in the Second Amendment.” Price, 111
F.4th at 400. The same is true of Rahimi, which pointedly repeated Heller’s statement that
“prohibitions . . . on the possession of firearms by ‘felons and the mentally ill,’ are
‘presumptively lawful.’ ” 144 S. Ct. at 1902 (quoting Heller, 554 U.S. at 626, 627 n.26)).
We thus conclude that Section 922(g)(1) “regulates activity”—that is, the possession of
firearms by felons—that “fall[s] outside the scope of the [Second Amendment] right as
originally understood.” Bruen, 597 U.S. at 18 (quotation marks removed).
2.
Even if Section 922(g)(1) did regulate activity within the scope of the Second
Amendment, we would reach the same conclusion at the second step of the Bruen analysis.
Rahimi provides important guidance on this point. See 144 S. Ct. at 1897
(describing some lower courts as having “misunderstood the methodology of [the Supreme
Court’s] recent Second Amendment cases”). The Court emphasized that neither Heller nor
Bruen “suggest[s] a law trapped in amber,” and that the Second Amendment “permits more
than just those regulations identical to ones that could be found in 1791.” Id. at 1897–98.
Instead, the relevant question is “whether the challenged regulation is consistent with the
principles that underpin our regulatory tradition,” including “[w]hy and how the regulation
burdens the right.” Id. at 1898 (emphasis added). Modern regulations need not be “a dead
ringer” or “historical twin” for a founding-era regulation; only a “historical analogue” is
required. Id. at 1898, 1903 (quotation marks removed).
Like the Eighth Circuit, we “conclude that legislatures traditionally employed
status-based restrictions to disqualify categories of persons from possessing firearms” and
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that “Congress acted within the historical tradition when it enacted § 922(g)(1).” United
States v. Jackson, 110 F.4th 1120, 1129 (8th Cir. 2024). In canvassing the historical record,
the Eighth Circuit identified “two schools of thought” justifying regulations restricting
felons from possessing firearms. Id. at 1126. One justification is that “legislatures
traditionally possessed discretion to disqualify categories of people from possessing
firearms to address a danger of misuse by those who deviated from legal norms.” Id. at
1127. The second is that legislatures had the ability to disarm particular people “to address
a risk of dangerousness,” which readily attaches to people who have already been found
guilty of having broken the law. Id. We agree that “either reading” of the relevant history
“supports the constitutionality of § 922(g)(1) as applied to [Hunt] and other convicted
felons.” Id. at 1126.
To begin, the historical record contains ample support for the categorical
disarmament of people “who have demonstrated disrespect for legal norms of society.”
Jackson, 110 F.4th at 1127. Early legislatures regularly punished felons and other non-
violent offenders with estate forfeiture or death—far greater punishments that “subsumed
disarmament.” Id. Indeed, “[t]he idea of felony [was] so generally connected with that of
capital punishment,” it was “hard to separate them.” 4 William Blackstone, Commentaries
98 (1st ed. 1769).
Hunt insists this point proves too much because “[f]elons . . . don’t lose other rights
guaranteed in the Bill of Rights even though an offender who committed the same act in
1790 would have faced capital punishment.” Hunt Suppl. Br. 10 (quotation marks
removed). That argument cannot be squared with Rahimi, which also relied on a greater-
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includes-the-lesser theory in holding that “if imprisonment was permissible to respond to
the use of guns to threaten the physical safety of others, then the lesser restriction of
temporary disarmament . . . is also permissible.” 144 S. Ct. at 1902. As the Supreme Court
has explained, the Second Amendment “codified a pre-existing right.” Heller, 554 U.S. at
592. And “it is difficult to conclude that the public, in 1791, would have understood
someone facing death and estate forfeiture to be within the scope of those entitled to
possess arms,” Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019), even though the
same person may have continued to enjoy certain other constitutional protections.
At any rate, there is more. Colonial-era offenders who committed non-violent
hunting offenses were ordered to forfeit their firearms. See, e.g., Act of Oct. 9, 1652, Laws
and Ordinances of New Netherlands 138 (1868) (forbidding partridge and game hunting
“on pain of forfeiting the gun”). And a contemporaneous source that Heller described as
“highly influential,” 554 U.S. at 604, maintained people should have a right to bear arms
“unless for crimes committed, or real danger of public injury from individuals.” 2 Bernard
Schwartz, The Bill of Rights: A Documentary History 665 (1971) (emphasis added)
(quoting “the highly influential minority proposal in Pennsylvania” discussed in Heller).
English and colonial American governments also enacted other types of categorical
bans on the possession of firearms by those who refused to follow less formal legal norms.
Governments disarmed “non-Anglican Protestants who refused to participate in the Church
of England,” “people who refused to declare an oath of loyalty,” and others. Jackson, 110
F.4th at 1126. True, many of these specific prohibitions would today be understood to
violate other constitutional restrictions. But those examples remain “relevant here in
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determining the historical understanding of the right to keep and bear arms.” Id. at 1127.
And those examples suggest legislatures historically had the power to disarm categories of
people based on a legislative determination that such people “deviated from legal norms,”
and “not merely to address a person’s demonstrated propensity for violence.” Id.
Hunt insists the evidence that the founding generation disarmed felons is mixed at
best. But Hunt’s argument commits the same mistake the Supreme Court identified in
Rahimi—insisting on a historical “twin” rather than an “analogue.” 144 S. Ct. at 1903. To
evaluate whether a historical analogue justifies a modern regulation, we consider “[w]hy
and how the regulation burdens the right.” Id. at 1898. And here, both the why (whether
“modern and historical regulations” impose a “burden” on the Second Amendment right
that was “comparably justified”) and the how (whether the regulations “impose a
comparable burden on the right of armed self-defense”) support Section 922(g)(1)’s
constitutionality. Bruen, 597 U.S. at 29. Just as early legislatures retained the discretion to
disarm categories of people because they refused to adhere to legal norms in the pre-
colonial and colonial era, today’s legislatures may disarm people who have been convicted
of conduct the legislature considers serious enough to render it a felony.
When asked about this point at oral argument, Hunt worried about allowing
legislatures to make certain conduct a felony and then prohibiting people from exercising
their otherwise constitutionally protected right to possess a firearm for having engaged in
that conduct. See Oral Arg. 31:40–33:55. We agree the power to determine the content of
the criminal law is serious business. But legislatures have always had that power, and it is
subject to few constitutional constraints. And there is no doubt that legislatures can subject
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people found to have engaged in serious criminal conduct to consequences the Constitution
would otherwise forbid, including—most notably—deprivations of “life, liberty, or
property.” U.S. Const. amend. XIV, § 1. We conclude the same is true of the ability to
lawfully possess a firearm.
Our conclusion that Section 922(g)(1) satisfies Bruen’s second step remains true
“[i]f the historical regulation of firearms possession is viewed instead as an effort to address
the risk of dangerousness.” Jackson, 110 F.4th at 1127. “Legislatures historically
prohibited possession by categories of persons based on a conclusion that the category as
a whole presented an unacceptable risk of danger if armed.” Id. at 1128. A determination
of dangerousness was sometimes made by status, like “[r]eligious minorities, such as
Catholics,” or “Native Americans,” and sometimes by conduct, like non-oath-takers. Id. at
1126. Those historical restrictions swept broadly, disarming all people belonging to groups
that were, in the judgment of those early legislatures, potentially violent or dangerous. Even
though “not all Protestants or Catholics in England, not all Native Americans, not all
Catholics in Maryland, not all early Americans who declined to swear an oath of loyalty
. . . were violent or dangerous persons,” all could be disarmed. Id. at 1128. “This history
demonstrates that there is no requirement for an individualized determination of
dangerousness as to each person in a class of prohibited persons.” Id. Instead, as here, past
conduct (like committing a felony) can warrant keeping firearms away from persons “who
might be expected to misuse them.” Id.
Based on this history, we conclude that Section 922(g)(1) is also justified as “an
effort to address a risk of dangerousness.” Jackson, 110 F.4th at 1127. In enacting that
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statute, Congress found that “the ease with which any person can acquire firearms other
than a rifle or shotgun (including criminals . . .) is a significant factor in the prevalence of
lawlessness and violent crime in the United States.” Omnibus Crime Control and Safe
Streets Act of 1968, Pub. L. No. 90-351, § 901(a)(2), 82 Stat. 197, 225; see Barrett v.
United States, 423 U.S. 212, 218 (1976) (noting that Congress “sought broadly to keep
firearms away from the persons Congress classified as potentially irresponsible and
dangerous”). And because felons, by definition, have “demonstrated disrespect for legal
norms of society,” the legislature has determined that “the category as a whole present[s]
an unacceptable risk of danger if armed.” Jackson, 110 F.4th at 1127–28. That legislative
judgment accords with historical tradition regulating non-law-abiding persons and is
consistent with the Supreme Court’s repeated instruction that longstanding prohibitions
“on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’ ”
Rahimi, 144 S. Ct. at 1902 (citations removed). “[T]hese assurances by the Supreme Court,
and the history that supports them,” reinforces our conclusion that “there is no need for
felony-by-felony litigation regarding the constitutionality of § 922(g)(1).” Jackson, 110
F.4th at 1125. We thus reject Hunt’s as-applied constitutional challenge at step two of the
Bruen analysis as well.
IV.
Hunt’s final argument involves his sentence. The Federal Sentencing Guidelines
call for a four-level increase in a defendant’s base offense level if that defendant “used or
possessed any firearm or ammunition in connection with any other felony offense.”
U.S.S.G. § 2K2.1(b)(6)(B). The district court applied that enhancement here. It first found
17 USCA4 Appeal: 22-4525 Doc: 60 Filed: 12/18/2024 Pg: 18 of 19
it “more likely so than not that [Hunt] fired [a] gun . . . inside an apartment building, while
under the influence of controlled substances during a domestic violence incident, with
another person present in the apartment.” JA 61. The court further concluded that Hunt’s
conduct “constitute[d] wanton endangerment” under West Virginia law. Id. “In assessing
a challenge to a sentencing court’s application of the Guidelines, we review the court’s
factual findings for clear error and its legal conclusions de novo.” United States v. Allen,
446 F.3d 522, 527 (4th Cir. 2006).
Hunt does not challenge the district court’s legal conclusion that the conduct
described in the factual findings is an “act with a firearm which creates a substantial risk
of death or serious bodily injury to another.” W. Va. Code § 61-7-12 (describing the felony
of wanton endangerment). Instead, Hunt argues that the district court clearly erred in
finding—by a preponderance of the evidence—that he fired a gun in the apartment.
We are unpersuaded. For one thing, there was significant evidence that someone
fired a gun: a neighbor heard gunshots from Hunt’s apartment just minutes before the
police arrived; officers found bullet casings on the floor of the apartment; and tests revealed
gunshot residue on both Hunt and the other person in his apartment. Further, if somebody
fired a gun, there was significant evidence that it was Hunt. When officers entered the
apartment, the gun was lying on the bed next to Hunt and a bullet casing was on the
bedroom floor. The other person in the apartment was unconscious in a different room.
What is more, Hunt later seemed to admit that he had, in fact, fired the gun, asking the
other person who had been in the apartment during a recorded phone call: “What was I
shooting at? I didn’t shoot at you, did I?” Taken as a whole, we conclude there was
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sufficient evidence for the district court to determine, by a preponderance of the evidence,
that Hunt fired a gun in the apartment.
* * *
The district court’s judgment is
AFFIRMED.