Background
Javier Villarreal was convicted of violating section 790.23(1)(a), Florida Statutes (2020), which makes it unlawful for any person convicted of a felony to own or possess any firearm, ammunition, or electric weapon or device. On appeal, Villarreal raised multiple issues, including a facial challenge to the constitutionality of the statute under the Second Amendment.
The challenge came in the wake of the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), which established that firearm regulations must be consistent with the nation’s historical tradition of firearm regulation to survive constitutional scrutiny. Villarreal argued that section 790.23(1)(a) fails this historical-tradition test and is facially unconstitutional.
The Court’s Holding
The Sixth DCA affirmed Villarreal’s conviction on all issues and specifically rejected his facial constitutional challenge to section 790.23(1)(a). The court joined a growing consensus among Florida’s District Courts of Appeal, citing Edenfield v. State, 379 So. 3d 5 (Fla. 1st DCA 2023), which rejected an identical facial challenge; Paul v. State, 381 So. 3d 617 (Fla. 4th DCA 2024), which upheld the statute’s constitutionality; and Gibbs v. State, 427 So. 3d 1072 (Fla. 3d DCA 2025), which affirmed with citation to Edenfield.
Notably, the court drew a clear distinction between facial and as-applied challenges. The majority noted that any as-applied challenge Villarreal may have raised below was unpreserved, and the court offered no opinion on such challenges to the statute. In a concurring opinion, Judge Pratt elaborated that section 790.23(1)(a) does not facially violate the Second Amendment because the historical record demonstrates circumstances in which the statute can be constitutionally applied—specifically, disarming felons whose prior convictions demonstrate they pose a danger to the public, as well as disarming traitors and rebels.
Key Takeaways
- All five Florida DCAs that have addressed the issue have now rejected facial Second Amendment challenges to section 790.23(1)(a), creating a strong consensus that the felon-in-possession statute survives post-Bruen scrutiny on its face.
- The court explicitly preserved the question of whether the statute might be unconstitutional as applied to specific individuals—leaving the door open for future as-applied challenges based on the nature of the underlying felony.
- Judge Pratt’s concurrence provides a roadmap for the facial analysis, grounding it in the historical tradition of disarming persons whose convictions demonstrate dangerousness or disloyalty.
Why It Matters
This decision reinforces the now-uniform position among Florida’s appellate courts that the state’s felon-in-possession statute survives facial Second Amendment scrutiny after Bruen. For criminal defense practitioners, the opinion signals that facial challenges to section 790.23(1)(a) are a dead end at the DCA level. However, the explicit preservation of the as-applied question—and the concurrence’s focus on dangerousness as the historical justification—suggests that defendants convicted of non-violent felonies may still have viable constitutional arguments if properly preserved below. Until the Florida Supreme Court or U.S. Supreme Court addresses the issue directly, the DCA consensus stands firm.