Florida AG Says Gun Bans for Non-Violent Felons a No-No

Florida Attorney General James Uthmeier has been one of the best friends to gun owners in the state since assuming office, and now he’s lending a hand to some residents who would like to be gun owners but can’t because of their criminal history. 

Uthmeier has released an advisory opinion that says the state’s ban on gun ownership for all those convicted of a felony offense is unconstitutional, at least as it applies to non-violent and non-dangerous individuals. The AG’s opinion was sent to the rst District Court of Appeal last month in support of a defendant named Christopher Morgan, who was charged after a traffic stop where he informed police he was in possession of a pistol.

Morgan has a 2007 conviction from Pennsylvania for carrying a concealed firearm without a permit; a third-degree felony in the Keystone State at the time, and was subsequently charged in Florida with being a prohibited person in possession of a firearm. Last September, Uthmeier’s office declined to assist Morgan in his argument that the state law violates his Second Amendment rights, but after Morgan pled no contest with the ability to appeal the conviction Uthmeier has now reversed course. 

In a subsequent brief filed on Feb. 13 of this year, the attorney general wrote that upon “studied reflection, the Attorney General has concluded that the conviction does indeed infringe Morgan’s right, as a nondangerous felon, to keep and bear arms. The State must therefore confess error and urge this Court to reverse.”

He later wrote: “Properly understood, the Second Amendment permits the government to dispossess felons whose convictions indicate that the felon is dangerous, but not merely all felons as a categorical matter.”

Uthmeier is due to file a supplemental brief in the case by the middle of this week. He promised the First DCA that supplemental brief will “discuss the lack of historical evidence supporting the dispossession of all felons, as distinct from the strong historical evidence supporting the disposition of dangerous felons.”

“That history would assist the Court in resolving this important issue,” he added.

Uthmeier’s brief is likely going to find a wide audience outside of Florida, at least among defense attorneys with clients accused of violating Section 922(g)(1) of federal statute, which prohibits gun possession for anyone convicted of a crime punishable by more than a year in prison. There have been dozens of 922(g)(1) cases appealed to the Supreme Court since the Bruen decision, but so far SCOTUS has yet to take a case despite splits in the lower courts on the issue. 

The AG’s change of heart is also being applauded by some Second Amendment advocates in the Sunshine State. 

“His memorandum shows a lot of intellectual honesty that we’ve missed from a lot of other attorneys general, because he recognizes that his first and foremost duty is to the Constitution of the United States and the Constitution of Florida, then to follow the laws of the Legislature,” said Eric Friday, general counsel for Florida Carry, a gun rights advocacy group. “I think the attorney general has some role in saying when a law the Legislature passes is unconstitutional, he’s not going to defend it.”

Attorneys general are expected to defend the laws of the state (or federal government), but as Friday says, they also swear an oath to defend the Constitution, and if a law adopted by the legislature or Congress violates our framework of government those AGs have a duty to challenge it… or at the very least decline to defend it. 

It will be fascinating to see how this plays out across the state. The appellate court doesn’t have to go along with Uthmeier’s interpretation, but if it does it’s possible that gun control groups could seek to intervene and appeal to the state Supreme Court in an attempt to keep the current law in place. And if the appellate court does side with Uthmeier, we can expect many Floridians with non-violent convictions in their past to try to regain their Second Amendment rights as well… at least at the state level. 

The Department of Justice is also expected to roll out its own rights restoration process in the very near future, providing another avenue for currently prohibited persons to once again be able to legally exercise their Second Amendment rights. Future administrations can shut down that process, though, and I think it’s still important and necessary for SCOTUS to weigh in on the constitutionality of 922(g)(1) in the near future, despite the Court doing its best to kick that can down the road.  

Editor’s Note: Republicans like Uthmeier are doing everything they can to protect and secure our Second Amendment rights.

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