US v. Fort
Split Score
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Case Summary
Disposition
Affirmed
The First Circuit affirmed Garrito Fort’s conviction for possessing a firearm as a felon and his 60-month above-Guidelines sentence. The court held that Fort failed to make the threshold showing to present a justification defense and that his as-applied Second Amendment challenge to § 922(g)(1) lacked merit. It also found the sentence substantively reasonable.
Circuit Split Identified
Legal Issue
Whether 18 U.S.C. § 922(g)(1) is subject to, and may be struck down through, an as-applied Second Amendment challenge by individual felons.
Circuit Positions
As-applied Second Amendment challenges to § 922(g)(1) are permissible and can render the statute unconstitutional in particular cases.
As-applied challenges are cognizable; defendant bears burden to show the statute is unconstitutional as applied (but conviction in the case sustained).
As-applied challenges to § 922(g)(1) are foreclosed; the statute is categorically constitutional and courts will not engage in felony-by-felony litigation.
Issue left open; acknowledges possible as-applied challenges but declines to decide under the facts presented.
Conflict Summary
The circuits disagree on the cognizability of as-applied Second Amendment challenges to the federal felon-in-possession statute. The Third and Sixth Circuits permit such challenges (with the Third Circuit having invalidated the statute as applied to a non-violent felon and the Sixth placing the burden on the defendant), while the Eighth and Fourth Circuits hold that § 922(g)(1) is categorically constitutional and reject case-by-case inquiries. The First Circuit in this opinion acknowledges the split but expressly declines to resolve the question, leaving the issue open within the circuit.