The felony charges filed against the suspected gunman in the apparent assassination attempt against former President Donald Trump have been repeatedly challenged — and sometimes dismissed — as unconstitutional in the two years since the Supreme Court decided New York Rifle & Pistol Association v. Bruen, a landmark case that dramatically expanded Second Amendment protections.
On September 16, federal agents charged Ryan Routh, 58, with one count of possession of a firearm by a prohibited person and one count of possession of a firearm with an obliterated serial number. Secret Service agents spotted Routh aiming an AK-47-style rifle through a chain-link fence bordering Trump’s West Palm Beach club while the former president golfed, officials have said. The agents opened fire, and Routh fled the scene. He was apprehended about an hour later while driving into a neighboring county.
Routh has two previous felony convictions, which bars him from owning firearms under a federal law known as the felon gun ban. According to court records, Routh’s rifle, which federal agents recovered at the scene, also had its serial number scratched off — another crime.
Historically, charges like these have been cut-and-dry, and prosecutors have used them to keep potentially violent suspects behind bars. But over the past two years, the Supreme Court’s Bruen decision has cast doubt on whether the laws are constitutional, raising the prospect that Routh could get the charges against him thrown out.
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Since June 2022, more than a thousand people with past felony convictions have used Bruen to challenge the constitutionality of the federal law that bars them from possessing guns, according to an extensive analysis of federal court decisions by The Trace. In at least 30 cases, defendants convinced courts to dismiss criminal charges for violating the felon gun ban.
Routh and his public defender have yet to signal a strategy for his defense, but Eric Ruben, a professor at Southern Methodist University Dedman School of Law, said he expects the alleged gunman to challenge his charges on constitutional grounds. “That’s in part because there are Second Amendment challenges to all weapons-related charges these days,” Ruben said. “The two charges here, we’ve already seen a lot of litigation, some of it successful litigation in other contexts.”
Bruen directed judges to evaluate the constitutionality of gun laws based on the nation’s “history and tradition” of firearm regulation. Modern-day concerns — the efficacy of the laws in preventing crime, technological changes to firearms themselves, or rising rates of gun death — are no longer relevant. The Supreme Court ruled that now, for a gun restriction to be constitutional, it must have a historical analog.
The new standard has set off a wave of legal challenges to gun restrictions across the country, placing dozens of gun laws under threat.
The Trace reviewed more than 1,600 federal court rulings that answered challenges brought over the past two years against an array of federal, state, and local gun laws — from assault weapons restrictions to bans on guns at the U.S. Post Office. More than 1,100 of those cases included a challenge to the felon gun ban, making it the most contested statute.
At least two dozen defendants have also challenged the ban on possessing firearms with obliterated or defaced serial numbers, the second charge Routh faces. In at least one case, a defendant convinced a judge to find the law unconstitutional, though that ruling was later reversed on appeal.
If Routh challenges the charges against him on Second Amendment grounds, he will have to do so in Florida, where he is awaiting trial, and he will likely face an uphill battle. That is because federal courts in Florida are bound by precedent from the 11th Circuit Court of Appeals, which has ruled the felon gun ban constitutional.
“There’s a lot of confusion and courts are disagreeing across the country on whether policies are constitutional under the Supreme Court’s novel test,” Ruben said. “For these two particular charges, there have been scattered opinions that have found them unconstitutional in certain contexts, but they have not had that sort of success in the 11th Circuit, where Florida is.”
The number of divergent rulings on the felon gun ban in particular may prompt the Supreme Court to weigh in. One justice, Amy Coney Barrett, wrote a dissent supporting the restoration of gun rights to nonviolent felons while she was an appeals judge for the 7th Circuit.
David Chipman, a former agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, said it’s likely that Routh will be indicted on additional charges once federal agents conclude their investigation. He said it’s customary for law enforcement to use firearm violations to keep a suspect confined while investigators gather evidence to support more complicated charges like attempted murder.
“Now,” Chipman said, “it’s investigators who have to get out there and get every bit of evidence to make sure a jury knows that this crime is exactly what it looks like — an attempted assassination.”
Editor’s note: A previous version of this article misidentified Eric Ruben’s institutional affiliation. He is a professor at Southern Methodist University Dedman School of Law.
