Background
Aubrey Ellis Franklin was a passenger in a vehicle stopped for a traffic violation in Covington, Kentucky. An officer observed marijuana shake and a backpack near Franklin’s feet. Franklin admitted ownership of the marijuana, and a search of the backpack revealed a loaded 9mm Glock handgun, a ski mask, and additional marijuana. Franklin acknowledged the handgun was his. At the time of the stop, Franklin had previously pleaded guilty to felony possession of methamphetamine and was serving a diverted sentence — a status that qualifies as a felony conviction under Kentucky law for purposes of the felon-in-possession statute.
Franklin was indicted under KRS 527.040 for possession of a firearm by a convicted felon. He moved to dismiss the indictment, arguing the statute was unconstitutional under the Second Amendment of the U.S. Constitution and Section 1 of the Kentucky Constitution. The Kenton Circuit Court denied the motion, found the statute constitutional, and sentenced Franklin to five years’ imprisonment following a conditional guilty plea that preserved his right to appeal the constitutional ruling.
On appeal, Franklin reframed his argument as an as-applied challenge, contending that KRS 527.040 was unconstitutional specifically as applied to nonviolent felons like himself. The Commonwealth countered that Franklin had raised only a facial challenge in the circuit court, and that the as-applied theory was a new argument improper on appeal.
The Court’s Holding
The Kentucky Court of Appeals affirmed the conviction on two grounds. First, the court held that Franklin’s circuit court motion raised only a facial constitutional challenge to KRS 527.040, not an as-applied challenge. Although Franklin’s motion briefly referenced nonviolent offenses, that single mention was unsupported by any substantive argument or facts establishing Franklin’s own nonviolent status. Because the circuit court never considered or ruled on an as-applied challenge, the appellate court declined to address it, consistent with the rule that the Court of Appeals lacks authority to review issues not raised or decided below.
Second, on the facial challenge, the court relied on its recent decision in Commonwealth v. Frazier, 722 S.W.3d 541 (Ky. App. 2025), which had directly addressed the constitutionality of KRS 527.040 in light of New York State Rifle & Pistol Ass’n v. Bruen and United States v. Rahimi. Following Frazier, the court reaffirmed that felon-in-possession statutes are presumptively constitutional as to facial challenges under Heller’s express language, and that neither Bruen nor Rahimi abrogated that presumption. The Kentucky Supreme Court’s prior holding in Posey v. Commonwealth, 185 S.W.3d 170 (Ky. 2006), upholding KRS 527.040 under Section 1 of the Kentucky Constitution, remains valid and binding precedent.
The court rejected Franklin’s reliance on United States v. Williams, 113 F.4th 637 (6th Cir. 2024), which requires a fact-specific dangerousness inquiry for as-applied Second Amendment challenges. That framework is relevant to as-applied challenges, not facial ones, and in any event the court is bound by Kentucky Supreme Court precedent rather than Sixth Circuit authority.
Key Takeaways
- A defendant who raises only a facial constitutional challenge at the trial level cannot reframe the argument as an as-applied challenge for the first time on appeal in Kentucky.
- KRS 527.040, Kentucky’s felon-in-possession statute, remains facially constitutional under both the Second Amendment and Section 1 of the Kentucky Constitution after Bruen and Rahimi, consistent with Heller’s presumption in favor of longstanding felon-disarmament laws.
- The Sixth Circuit’s Williams framework — requiring a fact-specific dangerousness determination for nonviolent felons — applies to as-applied challenges and does not displace the facial constitutionality of felon-in-possession statutes under federal or Kentucky precedent.
- A diverted felony sentence in Kentucky constitutes a felony conviction for purposes of KRS 527.040, per Thomas v. Commonwealth, 95 S.W.3d 828 (Ky. 2003).
Why It Matters
This decision reinforces the Kentucky Court of Appeals’ post-Bruen position that felon-in-possession statutes survive facial Second Amendment challenges without requiring a full historical-tradition analysis, relying instead on the Supreme Court’s own assurances in Heller and McDonald that such laws are presumptively valid. It signals that defendants seeking to challenge these statutes in Kentucky must make careful, fact-specific as-applied arguments at the trial level — preserving the precise claim — rather than relying on broad facial attacks.
The ruling also highlights a deepening circuit split on the appropriate post-Bruen framework for felon-in-possession challenges. The Sixth Circuit’s Williams approach, which demands individualized dangerousness findings, stands in contrast to the approach embraced by the Fourth, Ninth, and Tenth Circuits — and now firmly by Kentucky state courts — which treat Heller’s presumption as sufficient to defeat facial attacks. Practitioners representing clients facing similar charges in Kentucky should expect trial courts to deny facial challenges as foreclosed by Frazier and Posey, and should build a complete as-applied record from the outset if they intend to pursue a nonviolent-felon theory.