SCOTUS Gives DOJ Extended Deadline in Prohibited Person Case

A Utah woman fighting to get her Second Amendment rights restored more than a decade after she became a prohibited person because she wrote a bad check is going to have to wait a little longer to learn what the Department of Justice has to say about her legal fight. Melynda Vincent petitioned the Supreme Court to accept her case in early May, and the DOJ originally had a June 11 deadline to respond. 

In early June the Solicitor General’s office requested and received a one-month extension, which pushed the deadline to July 11. In late June, however, Solicitor General D. John Sauer asked for another month-long extension, which was also granted. Now the DOJ has until August 11 to submit their response to Vincent’s argument that one seventeen-year-old non-violent felony conviction for trying to pass a bad check should not result in a lifetime loss of her right to keep and bear arms. 

Vincent was homeless and actively addicted to drugs when she tried to pass the bad check in 2007. She was convicted of federal felony bank fraud charges but was placed on probation instead of being sent to prison. Since then she’s turned her life around and is now a licensed clinical social worker in Utah who has both a private practice and works with the state. She’s also a mother who would like to own firearms to protect her children, but both a U.S. District Court Judge and the Tenth Circuit Court of Appeals have denied her relief; ruling that the federal statute prohibiting gun possession to anyone convicted of a felony is constitutional in every circumstance, including hers. 

Those decisions conflict with what other appellate courts have had to say. The Third Circuit, for instance, ruled that a Pennsylvania man who pled guilty to falsifying his income on a food stamp application more than 20 years ago should be allowed to possess a firearm. The Third Circuit’s decision, which was not appealed by the DOJ, suggested that in order to prohibit someone convicted of a crime from possessing a gun there needs to be a finding or reasonable belief that the person in question is dangerous. 

The Tenth Circuit, on the other hand, pointed to a line in Heller stating the decision should not “cast doubt on longstanding prohibitions on the possession of firearms by felons.” The court then reasoned that Bruen did not “appear to question the constitutionality” of prohibited person statutes, it didn’t need to apply the “text, history, and tradition” test spelled out by SCOTUS to determine the validity of particular gun laws. 

The fact that there’s a circuit court split on this issue should make Vincent v. Bondi more appealing to the justices. In fact, the Supreme Court previously granted cert, vacated an earlier Tenth Circuit decision, and remanded the case back to the appellate court last year after the Rahimi decision. I’d say that also makes it more likely that the Court will hear the case, but Snope was GVRed and the justices still passed on granting cert a second time, so who knows if the GVR in this case will make a difference.

A coalition of 2A organizations comprised of the National Rifle Association, Second Amendment Foundation, Firearms Policy Coalition, and FPC Action have also filed an amicus brief, as has a public defender in Oklahoma, both of which urge the Court to grant cert. The Second Amendment groups’ main argument is that the Bruen test should be applied, and if it is, the federal statute won’t stand up to scrutiny because it differs from the historical tradition of firearms ownership, which only prohibited violent felons from possessing guns while allowing (and in some cases, requiring) non-violent felons and “unvirtuous people” to keep and bear arms. 

The public defender’s brief also argues that “dangeorusness” should be the standard when determining whether someone can be barred from exercising their Second Amendment rights, but adds that whatever test is used “must also avoid creating vagueness problems for law enforcement, courts, and citizens”. A definitive ruling by the Supreme Court would be the best way to avoid those issues, rather than letting a circuit court split deepen if they’re not addressed now.

So what will the DOJ say? Under Joe Biden and Attorney General Merrick Garland, the agency took the position that nothing in Bruen or Rahimi called into question the validity of the prohibited person statute, but the DOJ also maintained that the Second Amendment’s protections only apply to “law-abiding citizens”, which suggests that any person convicted of any kind of criminal offense could be denied their right to own and carry a gun. 

I don’t think the Trump administration will adopt that point of view, but it will be interesting to see if they’ll explicitly argue that the Tenth Circuit got it right, and Melynda Vincent should be prohibited from possessing a gun, if they try to dodge the issue by arguing that DOJ is actively restoring 2A rights to those who apply for relief and Vincent would almost certainly be granted a reprieve if she applies, or if they’ll actually side with Vincent and her attorneys. 

I’m hoping they go with the last option, but I wouldn’t be surprised if they try to kick this can down the road a bit. I guess we’ll have to wait another month (at the very least) to find out where the DOJ will land. 

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