‘Danger’ Is the Key to 922(g) constitutionality, Two Circuits Say – Update for August 15, 2025

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A COUPLE OF 922(g) OPINIONS UNDERSCORE “DANGEROUSNESS”

Two decisions last week on the constitutionality of 18 USC § 922(g)(1) – the felon-in-possession statute – and § 922(g)(3) – the drug user-in-possession subsection – convicted the defendants but reflected the United States v. Rahimi trend of focusing on physical danger to the public instead of mere status.

In Louisiana, John Morgan had a prior state conviction for unlawful use of a gun arising from his participation in a drive-by shooting. When he was caught with a gun soon after serving two years in a state joint, he was convicted of being a felon-in-possession.

On appeal, John argued that § 922(g)(1) violated the 2nd Amendment as applied to him. Last week, the 5th Circuit disagreed, affirming his conviction.

Looking at colonial-era “going armed” laws, the Circuit ruled that the 2nd Amendment permitted government to permanently disarm “individuals found to threaten the physical safety of another.” Each statute “restricts gun use to mitigate demonstrated threats of physical violence,” yet “does not broadly restrict arms use by the public generally.” Thus, “[t]he justification behind going armed laws, to ‘mitigate demonstrated threats of physical violence,’ supports a tradition of disarming individuals like Morgan pursuant to § 922(g)(1), whose underlying convictions stemmed from the… commission of violence with a firearm.”

The decision thus suggests that it is a felony conviction for the commission of a violent act, not just a felony conviction, that is needed for § 922(g)(1) to be constitutionally applied to a defendant.

Meanwhile, in the 6th Circuit, a drunken Terrence VanOchten, who incidentally was also high on marijuana, was shooting at a propane tank in his backyard, located in a residential neighborhood. Deputies who arrived to disarm him found three pipe bombs as well as his AR-15. Convicted for the pipe bombs, Terry found his sentencing guidelines raised because he was a drug user in possession of a gun in violation of 18 USC § 922(g)(3).

Last week, the 6th Circuit affirmed his sentence. Terrence argued that sticking him with the Guidelines enhancement was wrong because § 922(g)(3) was applied to him unconstitutionally. Just like the 5th Circuit, the 6th bored in not on the fact that he drank booze and smoked pot, but rather because Terry was a “dangerous individual.” Relying on the Circuit’s decision in United States v. Williams, the Circuit said,

Williams held that 18 USC § 922(g)(1), a statutory companion to  § 922(g)(3)… is constitutional as applied to ‘dangerous individuals’… [B]ased upon historical analogues, Congress may use class-based legislation to disarm people it believes are dangerous, so long as members of that class have an opportunity to show they aren’t… And Congress had in fact done so in § 922(g)(1), disarming felons as a group because it judged them to be dangerous. Thus, we concluded, § 922(g)(1) is constitutional as it applies to ‘dangerous individuals.’

This case falls on the easy side of the line,” the 6th ruled. “In assessing whether VanOchten is dangerous, we need only examine his criminal record… [H]e earned a state law conviction for his conduct on the day he was arrested by Michigan deputies. On that day, he was shooting a rifle in the direction of a propane tank in a residential neighborhood while drunk and high. As this event shows, he misused his gun in a way that could “have caused a major explosion,” injuring himself or harming the person or property of another. His misconduct posed ‘a significant threat of danger’ to himself and others.

United States v. Morgan, Case No 24-30561, 2025 U.S.App. LEXIS 19872 (5th Cir. Aug 6, 2025)

United States v. Vanochten, Case No 23-1901, 2025 U.S.App. LEXIS 20103 (6th Cir. Aug 8, 2025)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

~ Thomas Root

Trump Suggests Marijuana May Be Downgraded as Dangerous Drug – Update for August 14, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

I have been on vacation, taking a break with grandkids from posting. I am back, sunburned and tired but ready to keep reporting.

TRUMP MAY RECLASSIFY MARIJUANA

The Wall Street Journal reported last weekend that President Trump is considering reclassifying marijuana from Schedule I to Schedule III, after marijuana companies have poured millions of dollars into Trump’s political groups.

At a $1 million-a-plate fundraiser at his New Jersey golf club earlier this month, Trump told attendees that he was interested in change, the people, who declined to be named, said.  The Biden administration began a reclassification move with a promised conclusion by December 2024, but Biden left office with that uncompleted.

The issue centers on whether marijuana should be reclassified as a Schedule III drug, which wouldn’t make the drug entirely legal but would ease restrictions on it. It would also allow for tax breaks for some marijuana companies and additional medical research.

At a Monday press conference, however, Trump confirmed that his administration is “looking at” reclassifying marijuana as a less dangerous drug.

“We’re looking at reclassification, and we’ll make a determination over, I’d say, the next few weeks,” The Hill reported.

The Department of Health and Human Services recommended in 2023 that marijuana be reclassified as a Schedule III drug, one that has a “moderate to low potential for physical and psychological dependence.”

Even if marijuana is rescheduled, it would still be a controlled substance that’s subject to federal rules and regulations. Rescheduling would neither decriminalize pot nor make it legal for recreational use on the federal level.

However, it would begin the long, slow slog toward decreasing marijuana penalties and perhaps retroactively revisiting existing marijuana-based sentences.

Wall Street Journal, Trump Weighs Reclassifying Marijuana as Less Dangerous Drug (August 9, 2025)

The Hill, Trump admin may reclassify marijuana: Would that make it legal in the US? (August 12, 2025)

~ Thomas L. Root

 

 

 

 

Will First Step Task Force Make A Difference? – Update for August 1, 2025

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FIRST STEP TASK FORCE FINDING ITS FOOTING

Rick Stover, Senior Deputy Assistant Director of the Federal Bureau of Prisons’ Designation and Sentence Computation Center (DSCC), says that the BOP’s new First Step Act task force has begun evaluating prisoners now in halfway houses who could be transferred to home confinement if they were to receive the full benefit of “stacking” recommended Second Chance Act placement atop FSA time credits.

Writing in Forbes, Walter Pavlo said the task force – with over 30 DSCC analysts assigned – noted that while the SCA limits home confinement to the final 6 months (or 10%) of a sentence, “the end of the sentence is a moving target for some inmates because they continue to earn FSA credits each month even when they are at the halfway house. The Task Force is manually calculating these dates for inmates in halfway houses, because the BOP’s own computer program currently does not calculate these dates once inmates are released [to] halfway houses.” Mr. Stover said the task force is ensuring that such calculations will occur with the recent application updates.

Once that is done, Mr. Stover told Mr. Pavlo, the Task Force will focus on those currently in prison. Mr. Stover said, “As we… move inmates from the halfway houses to home confinement, we expect this to create a sizable number of open beds in many of our halfway houses across the country. This allows us to then revisit the placement dates for inmates currently in our institutions and increase the number of inmates that we can place in the community, and in many instances, allow inmates to get out of prison quicker to begin their transition to go home.”

Mr. Stover is optimistic, Mr. Pavlo reports. “While the Bureau has made marked improvements in our time credit calculation applications since the onset of the FSA statute, more improvements are needed. We have changes forthcoming that will simplify the data for both staff and inmates.”

The BOP effort to push prisoners out to halfway house and home confinement as early as possible is laudable, especially because some prison consultants think that the BOP has discretion to deny inmates their entitlement to FSA credits. I reported a month ago on the U.S. District Court for the District of Columbia’s dismissal of Crowe v. BOP. Former BOP Unit Management Section Chief Susan Giddings (now a private prison consultant), writing for herself and prison consultant Bruce Cameron last week, lauded the dismissal. She said that the Crowe court’s denial of class status

was particularly gratifying for the authors because they have consistently argued that 1) there is nothing in the FSA that eliminated or modified the Bureau’s designation authority, including halfway house and home confinement designations, and 2) the idea that the FSA required the Bureau to transfer an individual solely based their eligibility date regardless of any other compelling issues undermined the requirements of the Second Chance Act (SCA). The SCA required the Bureau to ensure that incarcerated individuals were provided with the same individualized consideration when making prerelease designation decisions as they were when making institution designation decisions. The decision-making process for prerelease placement (i.e., halfway house and home confinement) includes the inmate’s unit team making a prerelease placement recommendation based on a variety of factors, including but not limited to individual release needs, institutional conduct, the current offense, history of success or failure in prior community placement, and criminal history. The completed designation request is then sent to residential reentry staff, who then consider all the information provided by the institution, as well as the community program resources and any community safety issues when making the designation decision.

I disagree with Dr. Giddings and Mr. Cameron that Crowe went as far as they argues it does and that the decision is a good thing. Walt Pavlo may agree with me. He implicitly suggests that keeping inmates in BOP prisons when they are legally eligible for less restrictive incarceration may be due to a BOP mindset as much as anything. Earlier this week, Mr. Pavlo described the problem as being that

the BOP has lacked leadership to lead it into the modern era of incarceration. It is an Agency that prospered during the days of locking up drug offenders that saw the federal prison population top over 220,000 in 2013. Then as buildings became old and decrepit, it failed to keep up and now BOP employees sit in the same rotting, molded facilities that house the inmates they watch.

Dr. Giddings and Mr. Cameron seem confident that BOP decisionmakers will do the right thing by the inmates they oversee, and that they both need and will responsibly use the authority to withhold FSA placement based on SCA factors that they argue that the law provides. Their view is shared by a number of commentators and many US Attorneys’ offices, and is worth noting.

At the same time, Mr. Pavlo’s blunt suggestion that Bureau employees are locked in old thinking is a notion shared by its own cohort of observers.  New BOP Director Marshall so far has made some promising moves, including the Task Force. Now, the Task Force has to perform.

Forbes, Bureau of Prisons Task Force Taking Shape, Challenges Remain (July  23, 2025)

Giddings, Crowe, et al. v Federal Bureau of Prisons, et al: Common Sense for the Win! (July 25, 2025)

LISA, Class Action FSA Credit Lawsuit Against the BOP Case Dismissed (June 16, 2025)

Forbes, Bureau Of Prisons Could Fix First Step Act, If It Had The Will (July 29, 2025)

~ Thomas L. Root

He’s A Ramblin’ Man – Update for July 31, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

POT MAKES YOU TALK TOO MUCH

Aldo Cordova Perez led police on a merry chase when they tried a buy-bust on his drug dealing. After Aldo’s escapade was cut short by a concrete post impaling the front of his getaway car, police cuffed him… and he started to ramble.

Aldo congratulated the gendarmes on the car chase. He admired their physicality in tackling him. He told them he smoked marijuana daily, and that he had a .22 rifle on a shelf at home.

Oh, Aldo. You should know that remaining silent isn’t just a right, it’s a pretty good idea. Aldo’s freely volunteered information about his gun at home tipped the locals that they should call the Feds. The Feds ran with Aldo said, and they charged him with being an illegal drug user in possession of a gun, a violation of 18 USC § 922(g)(3).

Amazingly, the jury acquitted him on drug trafficking – the “large quantity of methamphetamine in a box on the front-passenger-seat floorboard” did not impress the jurors – but they convicted Aldo of the § 922(g)(3) offense.

Aldo appealed, arguing that § 922(g)(3) violated the 2nd Amendment as applied to the facts of his case. Last week, the 8th Circuit agreed.

Citing its decision in United States v. Cooper, the Circuit said, “[W]e have already held that without more, neither drug use generally nor marijuana use specifically automatically extinguishes an individual’s 2nd Amendment right… And the government here did not provide enough evidence to show that marijuana use alone could reasonably be seen to make any user ‘an unacceptable risk of dangerousness’ to others by merely possessing a firearm. Indeed, defining a class of drug users simply by the suggestion that they might sometimes be dangerous, without more, is insufficient for categorical disarmament…

The 8th remanded the case for the trial court to determine “either individually or categorically, and either on the trial record or, to the extent necessary, via an evidentiary hearing—whether Cordova Perez’s marijuana use: 1) caused him to ‘act like someone who is both mentally ill and dangerous’; or 2) would or did make him ‘induce terror, or pose a credible threat to the physical safety of others with a firearm.’” The Circuit said, “We believe the district court is best positioned to reassess Cordova Perez’s as-applied challenge in light of Cooper.”

United States v. Perez, Case No 24-1553, 2025 USAppLEXIS 18095 (8th Cir. July 22, 2025)

United States v. Cooper, 127 F.4th 1092 (8th Cir. 2025)

~ Thomas L. Root

District Court Can Come For You Well After You Think It’s Over – Update for July 29, 2025

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PAY THE MAN, SHIRLEY

In 2014, Mikel Mims was convicted of conspiracy to commit wire fraud.  The district court sentenced her to probation and ordered her to pay $255,620 in restitution.  After Mikey completed probation in 2017, she stopped paying restitution despite her still owing about $200,000.

After all, she was beyond her criminal sentence. The court had nothing to hold over her. Right?

Wrong. Five years later, the district court – acting within Mikey’s original criminal case – ordered her to bring her payments current. Citing the Mandatory Victims Restitution Act and the Federal Debt Collection Procedures Act of 1990, the district court concluded that it still had jurisdiction to enforce restitution in the underlying criminal case. The district court ordered Mike to pay up.

Mikel appealed, arguing that she had completed her probation and that the district court no longer had jurisdiction in her original criminal case to order compliance. She contended that she was off scot-free! Two weeks ago, the 11th Circuit disagreed.

No one contested that the district court had jurisdiction over Mike’s underlying criminal offense and could order her to pay restitution as part of her criminal judgment. Starting there, the 11th Circuit applied the ancillary jurisdiction doctrine, which “recognizes federal courts’ jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them,” to hold that the district court’s hold on Mikel extended far beyond the end of Mikel’s criminal sentence. 

The ancillary jurisdiction doctrine “enable[s] a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees,” the Circuit ruled.  “We have historically recognized that district courts have “inherent power to enforce compliance with their lawful orders through civil contempt… Here, the district court lawfully entered the restitution order as part of Mims’s criminal judgment… Accordingly, we conclude that the district court had ancillary jurisdiction to enforce the restitution order it had included in Mims’s criminal sentence via the compliance order.”

The district court can’t impose prison time or extend probation in the criminal case. Rather, its enforcement power is limited to the civil contempt power, but the Circuit nonetheless held that the district court can continue to hold sway over a defendant far beyond the end of supervised release or probation.

United States v. Mims, Case No. 22-13215 (11th Cir., July 15, 2025)

~ Thomas L. Root

And Now a Word From Our Sponsor – Update for July 28, 2025

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NEWSLETTERS HANGING BY A THREAD

I’ve been writing the LISA Newsletter for nine years and seven months now. Whether I will make it to 10 years is anyone’s guess.

Back in the day, the Federal Bureau of Prisons provided inmates with the weekly BNA Criminal Law Reporter, first in print in the facility law libraries and later on inmate computers. Bloomberg acquired BNA in 2011, and the CLR ceased publication seven years later. As I recall (and my memory may be faulty, as my wife will attest), the BOP dropped CLR in about 2015 or 2016 when Bloomberg jacked up the subscription fee).

Any number of legal newsletters from law firms, paralegal services, and advocacy organizations have popped up in the last decade, chiefly because inmate email made distribution inexpensive and quick. LISA’s was one of them. None of us had the staff and resources of Bloomberg BNA, but then no one was charging for the service, either. The newsletters filled a void.

I sent the first LISA weekly newsletter out on November 29, 2015, to 13 subscribers. That was about 502 newsletters ago. My subscriber count went up quickly, leveling off somewhere beyond 10,000 prisoners and another 500 people outside of prison.

The BOP Corrlinks system helped a lot. It was clunky, the kind of thing you would expect to find on a Commodore 64 running Windows 3.1 (circa 1992), but it allowed the formation of groups of up to 1,000 people per group.

Until the end of last September, I could distribute 12,000 newsletters on Sunday night in about 15 minutes, sending to 12 groups of 1,000 subscribers each. But then progress…

At that time, the BOP dramatically changed its Corrlinks program to only permit 10 prisoners in each group. The only way to send the newsletter was with an outside service that could dedicate computers to the task, automatically logging on and sending to group after group after group. Even with 2024 computing power, we could only send about 2,000 newsletters a day, and some were missed as the Corrlinks system would lock out accounts for hours if it detected that too many emails had been sent in a given period.

It was messy but survivable.

Then, two weeks ago, the BOP changed the Corrlinks system again. Now, no email may be sent to more than one inmate recipient at a time. This means that we would have to send over 10,000 emails each week in order to deliver the newsletter to everyone who wants it. Our delivery people at Contxts (gocontxt.com) – a great group who had been providing computer delivery services to LISA and other legal newsletters without charge while they perfected their inmate messaging system – had been delivering about 2,000 newsletters a day until last week. Under the new system, we were lucky to get more than 400 a day sent out without being locked, and even that effort required substantial computer resources.

Last Thursday night, Contxts reluctantly informed us that newsletter delivery was soaking up a lot of resources for a frustratingly small throughput of newsletters. return. The company could no longer provide the newsletter distribution service.

For now, I will continue to write the newsletter. I post it online every Sunday night and email it to about 500 people outside of the BOP system. If you want your people to forward you the email, have them send a request to newsletter@lisa-legalinfo.com or cut and paste right from the LISA website at www.lisa-legalinfo.com.

We are working on finding a way to deliver the newsletter again. Printing and mailing the newsletter costs well over $1.50 per mailing, and that does not include the cost of labor. Email delivery is essential to the future of the newsletter.

~ Thomas L. Root

Sentencing Commission Hears About Retroactivity – Update for July 25, 2025

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SENTENCING COMMISSION HOLDS GUIDELINE RETROACTIVITY HEARING

At a hearing last week, the US Sentencing Commission heard from prosecutors, public defenders, and advocates for and against making some of the proposed Guideline changes that will become effective in November retroactive.

The Federal Defender Sentencing Guideline Committee made the case bluntly: “If ever there has ever been a time for the Commission to make retroactive guideline amendments, it is now. The reality is simple, indisputable, and unacceptable: the [BOP] is unable to humanely and safely hold the people in its custody… The BOP is in the midst of multiple, self-described crises, which are decades in the making and from which the BOP has neither the plan nor the means to escape.”

A retroactivity decision will come next month.

US Sentencing Commission, Public Hearing on Retroactivity (July 16, 2025)

Federal Public Defenders, Comment on Possible Retroactive Application (July 16, 2025)

~ Thomas L. Root

A Short Rocket of BOP News – Update for July 24, 2025

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LAST WEEK AT THE BUREAU OF PRISONS

You’d think that the sole focus of the Federal Bureau of Prisons in the last week had been how to produce celebrity prisoner Ghislaine Maxwell for a Congressional deposition. But from Duluth to Alcatraz, there was a lot else going on as well. Here’s the short rocket…

Marshall Establishes FSA Task Force:   Bureau of Prisons Director William K. Marshall III announced the established of an FSA Task Force at the BOP’s Grand Prairie, Texas, Designation and Sentence Computation Center.

Marshall cited inmate “frustration that their paperwork for home confinement under the First Step Act (FSA) wasn’t being processed by staff despite Director Marshall’s directive to maximize the use of community placement. But at the same time, the staff told [Marshall] that the systems they rely on weren’t always showing the right dates… The majority of staff were doing their best with the information they had, but, unfortunately, they were taking the blame from inmates and families who thought they were dragging their feet. That wasn’t fair to them.”

The task force will identify prisoners in halfway houses who are eligible for home confinement; manually calculate home confinement dates that “stack[] both the FSA and Second Chance Act;” and ‘[r]eview eligible incarcerated individuals inside institutions for additional community placement opportunities.”

Writing in Forbes, Walter Pavlo said, “Having a person serve a portion of their sentence in the community is not something new and has been used for decades by the BOP. However, the Agency has been slow to move inmates after the [First Step Act] was codified… in January 2022. The initiative is part of Director Marshall’s broader strategy of “Leadership in Action,” which has included institutional walk-throughs, direct engagement with frontline staff, and timely operational changes based on what he hears.”

BOP, Director Marshall Launches FSA Task Force (July 14, 2025)

Forbes, Bureau of Prisons Launches First Step Act Task Force (July 14, 2025)

Alcatraz Moves Forward:  Never mind that the price tag has blown through $2 billion to renovate a prison closed for 60 years that only houses 325 prisoners and has no water supply. A visit to Alcatraz Island in San Francisco Bay last week by Attorney General Bondi, Dept of the Interior Secretary Doug Burgum, Marshall, and BOP Deputy Director Joshua J. Smith makes it clear that President Trump’s May musings on social media that he wanted to reopen Alcatraz as a federal prison to “house America’s most ruthless and violent offenders” and remove criminals “who came into our country illegally,” is going to happen.

A BOP press release underscores that reopening Alcatraz is pure symbolism, the fevered dream of President Trump: “Reopening Alcatraz isn’t just about a building, it’s about sending a message: crime doesn’t pay, and justice will be served. If feasible, Alcatraz will stand as a beacon of American resolve, where the most dangerous offenders face accountability. For the public, it’s a promise fulfilled—a stronger, safer America. And for President Trump, it’s a project that will make our nation proud.”

Alcatraz was closed as a maximum-security prison in 1963 after 29 years of operation, because it was too expensive to continue operating. Now managed by the National Park Service, the island is one of San Francisco’s most popular tourist destinations.

BOP, The Rebirth of Alcatraz (July 17, 2025)

NY Times, Trump’s Plan to Reopen Alcatraz Appears to Move Forward With Officials’ Visit (Jul 17)

FPC Duluth to Remain Open: Seven months after the then-BOP Director Colette Peters listed FPC Duluth with six other facilities that would be closed because of “aging and dilapidated infrastructure,” new BOP boss William K. Marshall III announced last week after a site inspection that the minimum-security camp “will not be deactivated.”

Currently, there are only about 258 inmates remaining at the facility, but officials anticipate repopulating the camp to its rated capacity of about 800 prisoners. The camp is located on the grounds of the former Duluth Air Force Base.

Minnesota Public Radio, Duluth prison camp to remain open, reversing earlier decision to ‘deactivate’ the facility (July 16, 2025)

ICE Sending Immigrant Detainees to FDC Honolulu, Proposes Using Fort Dix: Under normal circumstances, scoring an all-expenses-paid trip to Hawaii would be a Wheel of Fortune moment.  But these are not normal circumstances.

It turns out that over 70 immigrant detainees, some from as far east as Florida, are being flown to imprisonment at the Federal Detention Center in Honolulu.

The Honolulu Civil Beat quoted one immigration lawyer as saying that a client “was taken into custody in Florida and went to two detention centers there before he was transferred to Louisiana, Arizona and two facilities in California before finally coming to Hawaiʻi.” Attorneys are complaining that the endless moves and distances make consultation with their clients almost impossible.

Homeland Security Secretary Tom Homan said over the weekend that 60,000 immigrants are currently in custody, with plans for 40,000 more.

Still, air conditioning in the Aloha State may be better than a tent in the South Jersey heat. Last week, Secretary of Defense Pete Hegseth approved the use of Joint Base McGuire-Dix-Lakehurst, where FCI Fort Dix is located, to confine immigrants. The Defense Department said detainees would be confined in “temporary soft-sided holding facilities,” suggesting for now that facilities at the aging FCI Fort Dix – located on base grounds – will not be used.

Honolulu Civil Beat, ICE Is Moving Immigrants Arrested On The Mainland To Honolulu (July 16, 2025)

Philadelphia Inquirer, Trump administration plans to hold immigration detainees on South Jersey military base (July 18, 2025)

~ Thomas L. Root

DOJ Publishes New Gun Rights Restoration Program Proposal – Update for July 22, 2025

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SPEAKING OF GUNS, AS WE ARE…

The Dept of Justice last Friday released the long-awaited proposed rules for convicted felons and other disqualified people to win restoration of their gun rights.

In March, the DOJ restored gun rights to a handful of people disqualified by 18 USC § 922(g), most famously actor and Trump supporter Mel Gibson, disqualified under 18 USC § 922(g)(9) for a misdemeanor domestic violence conviction over a decade ago. At the time, Attorney General Pam Bondi said the DOJ would be crafting a program for people covered by § 922(g) to apply for restoration of gun rights under its authority to do so granted by 18 USC § 925(c).

The DOJ’s 48-page notice of proposed rulemaking (NPRM) outlines the history of firearms rights restoration, the legal authority,  the policy rationale for such a program, the offenders the rule will exclude, and how applicants will be evaluated.

“For too long, countless Americans with criminal histories have been permanently disenfranchised from exercising the right to keep and bear arms—a right every bit as constitutionally enshrined as the right to vote, the right to free speech, and the right to free exercise of religion—irrespective of whether they actually pose a threat,” Bondi said in a press release. “No longer.”

The proposed rule holds that people who were fugitives from justice (§ 922(g)(2)), unlawful drug users (§ 922(g)(2)), people subject to domestic violence restraining orders (§ 922(g)(8)), and illegal immigrants (§ 922(g)(5)) would be “presumptively ineligible for relief and therefore denied relief absent extraordinary circumstances.” The proposed rule also lists individual violent felony offenses, sex crimes, and other crimes “closely associated with dangerousness,” such as threatening or stalking offenses, that would be grounds for presumptive denial.

The rule would provide that people with certain offenses, which are “less serious or indicative of violence,” can have their presumption of denial mitigated by the passage of time since the offense occurred. The proposal says that for some crimes, like drug-distribution or misdemeanor domestic violence, that “bear a more direct relationship to violence,” DOJ will consider applicants without a presumption of denial only after ten years have passed following completion of probation, parole, or supervised release period. All non-violent offenders would be required to wait five years after completing their punishment before DOJ will process their applications.

The rule states that the DOJ will reject a narrow “categorical approach” that examines only the disqualifying conviction. Instead, it will review the applicant’s history and characteristics, including his or her entire criminal history, non-charged conduct, known associations, and inquiries to local law enforcement.

The NPRM makes it fairly clear that a prime motivator for the rights restoration program is to give the Government an argument that deciding that courts need not decide the constitutionality of 18 USC § 922(g)(1) because an alternative gun rights restoration is in place: “As recognized by courts, a functional section 925(c) process would render much of this litigation unnecessary and ensure that individuals meeting the relevant criteria may possess firearms under federal law in a manner consistent with the Second Amendment, while still protecting public safety.”

Written comments are due October 20, 2025.

This is nothing more than an administrative band-aid. If someone like Melynda Vincent, whose 15-year-old bank fraud conviction should not have disqualified her from gun ownership under the Second Amendment, was never constitutionally stripped of her right to own a gun, then a government argument that she is entitled to jump through a protracted application hoop to win back Second Amendment rights she never lost is specious.

 

DOJ, Application for Relief from Disabilities Imposed by Federal Laws with Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms (90 FR 34394, July 18, 2025)

DOJ, Justice Department Publishes Proposed Rule to Grant Relief to Certain Individuals Precluded from Possessing Firearms (July 18, 2025)

~ Thomas L. Root

The Guns of August Come Early – Update for July 21, 2025

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ONE TOKE OVER THE 2ND AMENDMENT LINE?

Remember how your mother scolded you to take good care of your stuff? The lesson didn’t stick with college student Erik Harris. A few days after he bought two handguns in close succession, Erik got “really drunk” and high at a party. One of his guns disappeared.

As soon as Erik sobered up, he reported the gun stolen and bought a replacement. Incidentally, on each purchase, Erik indicated on the ATF form that he was not an “unlawful user of or addicted to marijuana.”

When Erik’s missing gun turned up in a felon’s possession, police questioned Erik. Remember how your mother told you that the policeman is your friend? That lesson did stick with Erik… to his detriment.

Erik admitted to the cops that he smoked weed regularly, including earlier that same day. He acknowledged that he probably was an “unlawful user” of marijuana and that maybe he wasn’t completely “honest”  when he filled out the ATF form.

Remember that bit you’ve heard in the police shows on TV about “you have the right to remain silent?” That’s not just a right, it’s a pretty darn good idea. Honesty turned out not to be the best policy for Erik. The government charged him with three counts of possessing a gun as an “unlawful [drug] user” under 18 USC § 922(g)(3) and another three counts under § 922(a)(6) for lying to buy each one. Erik got convicted.

Last week, the 3rd Circuit held that § 922(g)(3) didn’t violate the 2nd Amendment on its face because it is completely constitutional to deny guns to unlawful drug users who could pose a risk to others if armed. The nation’s founding-era laws temporarily disarmed people who were dangerously drunk or mentally ill, because their impaired mental state posed a risk to others. Section 922(g)(3)’s temporary restriction on gun rights is analogous to these historical restrictions, the Circuit said, because it addresses a similar problem, the risk of danger due to an altered mental state and imposes a similar burden of temporary disarmament.

But § 922(g)(3) might not apply to Erik, the 3rd conceded, because the District Court did not find that his frequent marijuana use increased the risk that he could not handle guns safely. “Whether Harris’s § 922(g)(3) conviction is constitutional turns on many facts unanswered by the existing record,” so it remanded the case for fact-finding, including on how recently he had smoked prior to gun possession, whether the pot affected his judgment and impulse control, or caused psychosis, and marijuana’s long-term physical and mental effects.

The significance of the decision is the 3rd Circuit’s use once again of an individual dangerousness analysis – like it did in Range – to decide whether § 922(g) was constitutional as applied in a particular situation.

United States v. Harris, Case No. 21-3031, 2025 U.S.App. LEXIS 17293 (3d Cir. July 14, 2025)

– Thomas L. Root