This is not the sort of headline I expect to see coming out of the Ninth Circuit Court of Appeals.

Ninth Circuit: Felon Has ‘Right to Possess Firearm for Self-Defense’
On Thursday a three-judge panel from the United States Court of Appeals for the Ninth Circuit decided that Steven Duarte, a felon, has a “right to possess a firearm for self-defense.”

That opening sentence explains much: a three judge (2 Dubya appointees, and a Trump appointee) panel, not en banc. I’ve no doubt that the state is preparing a motion for en banc review.

The decision, United States v. Duarte, is here. The majority based  this ruling on BRUEN, with a dash of HELLER: there is no national “historical tradition of” barring felons who have completed their sentences from possessing firearms. Some readers may recall that such a bar never existed until the Gun Control Act of 1968, less than 50 years ago.

Almost two years ago, I pointed out that, “Much of the GCA ’68 is on very thin ice.”

The dissent, by Dubya appointee Judge Milan Smith Jr., is interesting in a morbid way.

The Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), did not overrule Vongxay. Instead, Bruen reiterates that the Second Amendment right belongs only to law-abiding citizens.

That’s a two-fer. First, the referenced Vongxay is a 2010 Ninth Circuit opinion. Smith is asserting that d 2022 BRUEN, by the lowly Supreme Court of the United States — you know; that one above the Ninth — does not override the majestic Ninth’s precedent. His rationale is that BRUEN didn’t specifically mention and overturn Vongxay by name.

Mommy! Timmy won’t stop poking me!</i?

Stop poking your sister, Timmy.

Mommy, he’s poking me again!

Timmy! I told you stop that!

But that was when I poked her with my index finger. You didn’t say I couldn’t use my middle finger, Mama.

Second, BRUEN does not reiterate “that the Second Amendment right belongs only to law-abiding citizens.” On the contrary, in BRUEN Associate Justice Breyer, in his dissent admitted:

Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.

BRUEN determined that law-abiding people do have Second Amendment protected rights, but it does not specifically exclude convicted felons who have completed their sentences, and presumptively reformed and now law-abiding people, whom it’s also presumptively safe to let walk our streets.

Rather like recognizing the right of a convicted felon, who has completed his sentence, to vote.