Is Trump barred from gun possession?

Following his New York conviction on 34 counts relating to hush money payments to adult film star Stormy Daniels, President Donald Trump will get to possess America’s nuclear codes but not, as the press reports, a gun.

This is because under federal law a person convicted of a crime punishable by imprisonment for a term exceeding one year is not permitted to possess a firearm or ammunition. Or is he, regardless of the statute barring possession by him?

The question to be answered is whether under the most recent Supreme Court decisions Trump is barred, or to the contrary, whether the federal law cited by the media, 18 U.S.C. § 922(g), is unconstitutional? Although the Supreme Court has come close to providing an answer it has not done so, and it now should. Many people will be affected by that court’s conclusion.

Since its enactment in 1988, Section 922(g) barred felons from possessing firearms and ammunition. Then in 2022 Bruen imposed the requirement that any law restricting possession of firearms must be tested for its constitutionality by asking whether similar restrictions existed in 1791, or perhaps 1868 when the Fourteenth Amendment was ratified. If similar restrictions then existed, the new law passes constitutional muster; if not, it fails. Section 922(g) is not excepted from this test.

Banning possession by a felon convicted of, say, financial fraud would probably find no support in colonial laws. Banning possession by someone who threatened to overthrow the government would. The Supreme Court recently sniffed around the edges of this issue in Rahimi. Zackey Rahimi was charged and convicted of firearm possession in violation of Section 922(g) after a court issued a domestic restraining order against him.

In Rahimi, the Supreme Court was unable to find a colonial era law that barred a perpetrator of domestic violence from possession of a firearm so it instead considered Rahimi to be dangerous to society and held that dangerous people could be restricted from possession under English and early American law.

Although Section 922(g) provides a lifetime ban when a person meets one of its disqualifying circumstances, the court in Rahimi held that a dangerous person could be banned from possession but only for so long as the person is found to pose a credible threat to the physical safety of another.

Justice Clarence Thomas, the author of Bruen, dissented on the grounds that in colonial times, Rahimi’s conduct would not have prohibited his possession of a firearm and applying the logic, or illogic of Bruen, Rahimi should therefore be allowed to possess a gun.

Recognizing that Section 922(g) contains nine circumstances that result in a lifetime ban, and that some state laws such as Maryland’s add more, it is quite unclear which of these circumstances will result in prohibition to possess a firearm, although any such person who was prohibited from possessing a firearm under the statute could be charged with the crime of possession.

The U.S. Court of Appeals for the 3rd Circuit partially addressed this problem, holding that a conviction involving a false statement made to collect food stamps that can result in a sentence of more than one year is not a disqualifying circumstance under Bruen. The same result could also be applicable to a person dishonorably discharged from the Armed Services, another prohibiting circumstance, where the reason was refusal to follow orders or ongoing disrespect, versus an act involving violence that would serve to show the person was a danger to society.

As of September, more than 1,000 felons have challenged their convictions for violating 922(g), and there is a split among the circuits with the 8th and 11th circuits finding the felon in possession law constitutional in all applications. The 3rd, 5th, 6th and 7th circuits have not found it to be constitutional in all circumstances.

It’s not likely that Trump will have any need to possess a firearm in the next four years, but many people are and will be affected. Many in Maryland have and will be charged with possession of firearms in violation of the federal law when their crimes are, in essence, monetary and not violent.

Rather than the narrow view taken by the Supreme Court in deciding that because Rahimi is dangerous he cannot possess a firearm, that court needs to entertain a case that it can use to opine under what circumstances Section 922(g), and corresponding state laws, will and will not bar possession of firearms under Bruen so that wasteful prosecutions can be avoided.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.