ACLU Urges Ninth Circuit to Uphold Rights of People with Felony Convictions

SAN FRANCISCO – The American Civil Liberties Union, ACLU of Northern California, ACLU of Southern California, ACLU of Nevada, ACLU of Arizona, and ACLU of Alaska filed an amicus brief in United States v. Duarte today, arguing that the defendant, Steven Duarte, did not forfeit his Second Amendment rights because of a past, nonviolent felony conviction.

Mr. Duarte was charged and convicted under an extremely broad federal statute, 18 U.S.C. § 922(g)(1), which makes it a federal crime for anyone previously convicted of a state or federal criminal offense with a potential sentence of one year or longer to possess a firearm. Under this law, the more than 20 million Americans with felony convictions are permanently barred from lawfully possessing a gun and subject to lengthy prison terms. In practice, Section 922(g)(1) dictates that if anyone who has been permanently barred from lawfully possessing a firearm is found with one – even for innocuous reasons or on a temporary basis – they can be sentenced to up to 15 years in prison.

“As a matter of law, Mr. Duarte’s conviction fails the Supreme Court’s constitutional test because there is no history or tradition to support the permanent stripping of Second Amendment rights based solely on a past criminal conviction,” said Cecilia Wang, deputy legal director at the ACLU. “The government’s extreme argument – that only ‘responsible, law-abiding citizens,’ as defined by a federal prosecutor, enjoy the rights of ‘the people’ under the Second Amendment — is contrary to the constitutional text and was firmly rejected by the Supreme Court just last term.”

Beyond driving mass incarceration, the law in question contributes to the already pervasive racial disparities in the criminal legal system. In 2023, nearly 60 percent of the people convicted under Section 922(g)(1) were Black. As one court observed, as a result of this statute, “nearly a quarter of Black adults have been permanently stripped of the right to lawfully possess firearms.” Further, Section 922(g)(1) emboldens law enforcement to adopt practices like stop-and-frisk that target communities of color.

“By imposing a lifetime ban on possessing a gun on people who, like Mr. Duarte, were convicted of nonviolent offenses, the federal statute drives mass incarceration and disproportionately targets Black men who, due to systemic racism in the criminal legal system, are both more likely to have felony convictions and to be charged with gun possession,” said Shilpi Agarwal, legal director at the ACLU of Northern California. “The ACLU urges the court to narrow the scope of this remarkably broad law.”