Bruen, U.S. v. Bullock, and rethinking bar admission prohibitions in Mississippi
I. Bullock and Bruen
Since Bruen, federal courts have heard numerous Second Amendment challenges under the test announced by Justice Thomas in Bruen. After spending much of my past two summer internships on Bruen issues, the recent U.S. v. Bullock case caught my eye. In it, Judge Reeves held that 18 U.S.C. § 922(g)(1)—which makes it a federal felony for one with a felony conviction to knowingly possess a firearm—was unconstitutional (as-applied) under Bruen.
The defendant, Mr. Bullock, had been previously convicted for aggravated assault and manslaughter after a deadly bar fight in in 1992. Fifteen years after Mr. Bullock was free, he was charged under 922(g)(1) for possessing a handgun in his home. Mr. Bullock’s counsel—Michael Scott and Omodare Jupiter at the Office of the Federal Public Defender—filed an as-applied challenge and motion to dismiss under Bruen.
For those unfamiliar with Bruen, the test requires that (1) when the text of the Second Amendment covers conduct prohibited in a statute, the statute is presumed unconstitutional (2) unless the government can demonstrate historically analogous regulations (of that conduct) from either (but unclear) the ratification eras of the Second and Fourteenth Amendments (1791 and/or 1868).
Judge Reeves explained that as for the first prong of the Bruen test, what must be considered is the conduct the statute regulates (in the Bullock case, knowing possession of a firearm in his home), not the status (previous felon status) of the person performing the conduct. Judge Reeves held that possession of a firearm in the home was covered by the Second Amendment. As to the second prong of the Bruen test, Judge Reeves held that the State failed to demonstrate sufficient historical analogues to justify its position that felons as a class are subject to indefinite disenfranchisement of their Second Amendment rights.
Specifically, Judge Reeves explained that even if the Second Amendment only protects “law-abiding citizens,” Mr. Bullock is law-abiding because he served his time and is now free. Earlier on in the opinion, Judge Reeves reminded us that in both Heller and McDonald—the predecessors to Bruen—the Supreme Court of the United States rejected an “interest-balancing” approach when it comes to the Second Amendment, because “[t]he very enumeration of the right takes out of the hands of government-even the Third Branch of Government the power to decide on a case-by-case basis whether the right is really worth insisting upon.” He went on to cite Justice Barrett when she was a Seventh Circuit Judge, in a dissent she penned where she said, “[n]either felons nor the mentally ill are categorically excluded from our national community.” Finally, Judge Reeves highlighted the more important point Bruen left unanswered, which is how courts are to assess whether someone’s specific felony record excludes them from the reach of the Second Amendment’s text, and if so, whether that is permanent.
II. Persons previously convicted of a felony should not be treated as monolith and per se prohibited from taking the bar exam.
U.S. v. Bullock stands for the proposition that persons with felony convictions are not a category or persons who are permanently stripped of their Second Amendment rights (as-applied). This case also makes us reconsider more broadly how far disenfranchisement stretches per history and tradition, and that felony convictions are not a monolith. Finally, this case reminds us that “felons” are persons, persons who were convicted of what law makers deem a felony. The Mississippi Legislature should have discussions on these reflections as it pertains to bar admissions. Because today, pursuant to Miss. Code Ann. § 73-3-41, persons previously convicted of a felony, manslaughter, or IRS violations in any state are strictly prohibited from being admitted to practice as an attorney in Mississippi.
Let us be reminded, that in Mississippi where marijuana is now legal for medical purposes, there are countless persons incarcerated for sentences ranging from a few days to 30+ years of the nonviolent “crime” of possessing marijuana. One can also wonder whether the medical marijuana industry—which many law students and lawyers now steward—in Mississippi or any state would exist but for the criminalized conduct of those with possession charges. To deny that would be dishonest. At any rate, whether a person has served their sentence for a violent felony like aggravated assault, or a nonviolent felony like marijuana possession, they each then become “law-abiding” citizens as per the reasoning articulated by Judge Reeves in U.S. v. Bullock. Therefore, they too should not be per-se prohibited from sitting for the Mississippi bar exam.
Unfortunately, Mississippi is blanket disenfranchising these (now) law-abiding persons from doing just that. This is especially important to consider in Mississippi, the second most incarcerated state in the world (just behind Louisiana, and both Mississippi and Louisiana incarcerate at twice the U.S. incarceration rate), where a majority of those incarcerated are non-white. To per se prohibit those with felony convictions from sitting for the bar, in a state with a dark history of Black Codes and a world-leading systemically racist incarceration system, is to perpetuate that systemic racism into the admissions criteria of who can or cannot become stewards of the legal system. Furthermore, all states except Texas, Mississippi, and Kansas have lifted these restrictions. The time is now for the Mississippi Bar Association, Mississippi Supreme Court, and law students to initiate a discussion on this and advance with the times. Will Mississippi continue to treat persons with felony convictions as a monolith when it comes to bar admissions?