Federal appeals court says non-dangerous felons shouldn’t lose gun rights forever

A federal appeals court has overturned the gun conviction of a man who had failed to pay child support, saying that sort of crime shouldn’t have cost him his gun rights for the rest of his life.

The 5th U.S. Circuit Court of Appeals ruled Wednesday in a 2-1 decision that as long as he was current in his payments, his past felony conviction doesn’t automatically make him too dangerous to society to possess a firearm.

“So there’s no historical justification to disarm him at that moment — never mind for the rest of his life,” Judge James Ho, a Trump appointee, wrote in the key opinion.

The case is the latest in a string of challenges to federal gun controls following the 2022 Bruen case, which struck down some state restrictions on concealed-carry permits. The Supreme Court said restrictions that would not have been recognizable to the nation’s founders could not survive constitutional scrutiny.

That has left judges to examine federal bans on illegal immigrants, drug users, those with domestic violence protection orders lodged against them and, most prominently, those with felony convictions.

Judge Ho said the founders clearly countenanced denying gun rights to those guilty of violent crimes but that doesn’t automatically include all felonies, defined as crimes that could be punished by a term of more than a year in prison.

The case stemmed from the conviction of Edward Cockerham. He had previously been convicted of failing to pay child support, which under Mississippi law could have earned him up to five years in prison — well above the felony level.

He was given five years of probation. But for purposes of the gun law, it’s the potential sentence, not the actual sentence, that counts.

When Mr. Cockerham was later found with a gun, he was convicted of being a felon in possession of a weapon.

The Department of Justice defended the conviction, arguing that the founders had put debtors in prison and Mr. Cockerham’s failure to pay child support was analogous to that kind of debt.

But Judge Ho said Mr. Cockerham had paid his debt and was released from probation at the time he was found with the gun.

The judge noted that other federal appeals courts have ruled in favor of the government’s argument recently, but he said the facts of Mr. Cockerham’s case demanded this outcome.

“Historical analysis determines whether a particular individual can be disarmed for life,” Judge Ho wrote. “And we are unable to find a historical basis for disarming Cockerham for the rest of his life, just because he was once convicted of failure to pay child support.”

Judge Ho was joined in the ruling by Judge Cory Wilson, a Trump appointee.

Dissenting was Judge Stephen Higginson, an Obama appointee. He said he would have sent the case back to a lower court to explore the facts and changing legal precedents but would not have outright reversed the conviction.

Judge Higginson reminded his colleagues that the 5th Circuit was reversed by the Supreme Court just last year in the Rahimi case, which also dealt with gun rights.

In that case, the 5th Circuit had ruled that the categorical ban on gun possession by those facing domestic violence convictions couldn’t survive the test the high court created in Bruen. The justices reversed that ruling.

Judge Ho, in addition to writing the main opinion Wednesday, wrote a separate concurring opinion defending the 5th Circuit’s logic in the Rahimi case. He said he and his colleagues correctly applied Bruan and it was the Supreme Court that moved the goalposts.

“The Supreme Court reversed our court in Rahimi. In order to do so, it had to reverse what it said in Bruen,” Judge Ho wrote.