The Third and Eighth Circuits have divided on the question whether some convicted felons have a constitutional right to bear arms. And the Supreme Court’s pronouncements on the issue are contradictory.

The Circuit Split

Justice Samuel Alito noted in 2019 that the federal statute barring felons from possessing firearms “probably does more to combat gun violence than any other federal law.” But the full U.S. Court of Appeals for the Third Circuit (15 judges) recently held this statute unconstitutional as applied to a person who pleaded guilty to making a false statement to obtain food stamps almost 30 years ago. Four days before this decision, the Eighth Circuit (a three-judge panel) upheld the statute as applied to all offenders.

The Eighth Circuit ruling was unanimous. In the Third Circuit:

1. three members of the majority said they’d allow legislatures to disarm people who, unlike the food-stamp offender, “would, if armed, pose a threat to the orderly functioning of society”;
2. dissenters accused the remaining eight judges in the majority of issuing an opinion that “is not cabined in any way and, in fact, rejects all historical support for disarming any felon,” but these judges said they’d decided only the case before them; and
3. four judges dissented.

Some prisoners convicted of violating the felon-in-possession statute in the states of the Third Circuit are now being punished for exercising a constitutional right and are entitled to their freedom. The court hasn’t yet indicated which ones. But the Constitution won’t help prisoners convicted of violating the statute in the states of the Eighth Circuit. The Supreme Court is likely to address the issue during its next Term.

Read more at Justia Verdict