Tag Archives: 18 usc 922(g)

New Gun Restoration Rule Sends DOJ Fox to Guard the Henhouse – Update for August 27, 2026

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DOJ ADOPTS FINAL GUN RIGHTS RESTORATION RULE

The Dept of Justice last week published a final rule adopting a procedure for restoring gun rights for people convicted of certain nonviolent felonies.

It’s a victory for the government’s goal of being the gatekeeper on 2nd Amendment rights. It’s a loser for everyone else.

The process will be restrictive and vigorous, coming with a long list of “presumptive disqualifiers.” Those include a conviction at any time in the past for a host of crimes of violence, for brandishing a gun, for witness tampering, or if you’re subject to sex offender registration (to name just a few). There is a 10-year wait for people convicted of drug offense or prior misdemeanor crimes of domestic violence. Gun rights won’t be restored if your conviction is less than five years old or you’re still locked up or on supervised release.

The application requires copies of prior criminal judgments, indictments, plea agreements and a state criminal history for the past 25 years. You must provide contact information for three character references, none of whom is prohibited from possessing a gun. Finally, you have to submit electronic fingerprints.

The program will be run by the Office of Pardon Attorney, a fact which does not provide comfort that decisions on gun rights – given that OPA as recently as July 1st had a 20,000-document backlog of petitions for clemency –  will be made quickly.

A curious and not-very-promising provision of the program is that it will be open on September 25 for six weeks only to “invited candidates.”  No one seems to have explored who the “invited candidates” might be, but given the Administration’s track record of favoring people with money, celebrity status and connections, the chance that the program may be flooded with favored applicants is real. Mel Gibson got his rights back, but there are plenty of MAGA-loving people with money or status in line behind him.

On November 4, the program will open to the public for 5,000 candidates. On January 4, 2027, the process will open to additional candidates, with a $30 processing fee required for the first time.

If your application is denied, you will have the right of judicial review.

Associated Press hopefully reported that the program is a victory for Second Amendment advocates who have long pushed for nonviolent people with felony convictions to be given a pathway to regain their legal right to own firearms.” It quoted Blanche as saying, “The Second Amendment is not a second-class right, and the federal government should not permanently deprive Americans of a constitutional right without regard to whether they pose a danger to public safety,” Blanche said in a statement. The attorney general said the new process will protect “public safety while giving deserving Americans a real path to restoration.”

However, the program may be a fig leaf that lets the Administration avoid a Supreme Court showdown over the 2ndAmendment and 18 USC 922(g) while deciding for itself whose 2nd Amendment rights will be honored and whose will be ignored. If § 922(g)(1) is unconstitutional as applied to some people despite their convictions, setting up a discretionary government process whereby the unconstitutionality may be corrected in the future is hardly comforting. The government may as well set up a panel to decide that you can exercise your 1st Amendment rights to make statements or publish flyers after you submit to a bureaucratic review process.

If a conviction is insufficient to strip 2nd Amendment rights from the start, an argument that you should be convicted of a § 922(g)(1) offense anyway because you didn’t petition the government to give you what you always were constitutionally entitled to is scary.  

Look at Ray Luna.

Ray was convicted of a drug possession felony. Much later, he was caught with a gun and charged as an 18 USC § 922(g) felon in possession. The District Court dismissed the indictment, holding that disarmament over a mere possession conviction – even a felony one z– violated Ray’s 2nd Amendment rights.

The government – the same government that will grant or deny you your 2nd Amendment rights – appealed to the 5th Circuit, arguing that it had information that Ray had really been trafficking drugs, despite the fact that he had not been charged with or convicted of that. Even if he had not, the US Attorney contended, drug possession was analogous to colonial-era laws regulating trafficking in tobacco. This week, the 5th agreed with the District Court and threw out the indictment:

[W]e consider only whether Luna’s predicate felony supports disarmament… For the purposes of assessing [a defendant’s] predicate offenses under § 922(g)(1), we may consider prior convictions that are ‘punishable by imprisonment for a term exceeding one year… Against the government’s request to ‘account [for] [the defendant’s] entire record, which is necessary to properly assess the extent of his violent conduct,’ we reject such an invitation and instead confine our inquiry to [the defendant’s prior] conviction—the only predicate § 922(g)(1) offense—based on the rule of orderliness.

Calvin, remember that time you laid out Susie Derkins with the snowball when you were both in 1st grade? If you’re convicted of a nonviolent white-collar crime 40 years in the future, you can bet the DOJ will resurrect the Derkins incident as proof that you should be denied possession of grandpa’s antique .22.

Some 2nd Amendment protection: Sending the foxes to guard the 2nd Amendment henhouse.

Federal Register, Application for Relief From Disabilities Imposed by Federal Laws With Respect to the Acquisition, Receipt, Transfer, Shipment, Transportation, or Possession of Firearms (August 20, 2026)

Associated Press, Justice Department creates a new pathway to restore gun rights for some convicted of felonies (August 17, 2026)

United States v. Luna, Case No. 25-40272, 2026 U.S. App. LEXIS 25846 (5th Cir. Aug. 24, 2026)

~ Thomas L. Root

A Kick In the Fundament for Felon-in-Possession? – Update for June 30, 2026

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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.

READING IS FUNDAMENTAL. GUNS MAY BE, TOO.

The word “fundamental” is fundamental to a lot of what we do. But as a vulgar kid, I was delighted to find out that the root word here – fundament – also meant “buttocks” or even “anus.” What a hoot that was for me back in 7th grade, when such knowledge carried a lot of juvenile humor with it.

Buttocks aside, “fundamental” carries significant constitutional implication, and the Supreme Court’s deliberate and repeated use of it in last week’s Wolford v. Lopez decision was no accident. In Wolford, the high court held that Hawaii’s restrictive firearms-carry law – that made a person lawfully packing heat get permission from any private owner from a neighbor to a store owner before entering the property – violated the 2nd Amendment. While the holding seems to have nothing to do with felon-in-possession laws, it suggests that SCOTUS is slowly moving toward a decision that 18 USC § 922(g)(1) can be unconstitutional when applied to nonviolent felons.

Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman noted that the Wolford v Lopez opinion repeatedly referred to the right to possess a gun for self-defense as a “fundamental right” cited in District of Columbia v. Heller, the 2008 decision that is the great grandfather of modern 2nd Amendment jurisprudence.

Berman suggests the use of the term is no accident:

In this Wolford ruling (as well as last week’s Hemani ruling), the Justices are now acting and talking like the 2nd Amendment is to be regarded and safeguarded like other ‘fundamental Bill of Rights guarantees.’ But if that is true, I do not see how federal and state felon lifetime dispossession laws can be categorically upheld as consistent with the 2nd Amendment. I am unaware of any other fundamental constitutional right — or even fundamental common-law right such as the right of self-defense — that a person could forever lose on the basis of a prior conviction. Would anyone seriously claim that 1st Amendment protected activity, such as writing a book or going to church, could be permanently criminalized by governments if and whenever a person had a prior conviction? If that seems crazy under the 1st Amendment, it would seem modern doctrine also makes it crazy under the 2nd Amendment.

Berman called on SCOTUS to take[] up this issue and… explain what the “fundamental right recognized in Heller” fully means.

It’s not like the Court hasn’t had a chance to do so, as excellent vehicles like Vincent v. United States had been on the relist before whimpering to a certiorari denial.  But like the old Brooklyn Dodgers plaint put it (especially appropriate as the Supremes leave town this week for summer recess), “Just wait until next year…”

Maybe.

Wolford v. Lopez, Case No. 24-1046, 2026 U.S. LEXIS 2720 (June 25, 2026)

United States v. Hemani, Case No. 24-1234, 2026 U.S. LEXIS 2559 (June 18, 2026)

District of Columbia v. Heller, 554 U.S. 570 (2008)

Sentencing Law and Policy, If truly a “fundamental right,” how can lifetime felon bans on gun possession square with the 2nd Amendment? (June 25, 2026)

~ Thomas L. Root

‘Dopers With Guns’ Decision Disappoints the Narratives – Update for June 19, 2026

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SUPREMES AVOID BROAD BRUSH ON HEMANI

Everything these days comes with a narrative. The Knicks only lose one game since April because President Trump was there, but win the next game because Taylor Swift brings the magic. Antifa “operatives” spiked the Reflecting Pool with algae before being arrested by Park Police.

Narratives attach to Supreme Court cases as well.

Yesterday, SCOTUS decided that 18 USC § 922(g)(3) – which prohibits people who illegally use controlled substances from possessing guns – could be unconstitutionally applied in certain uses. Defendant Ali Hemani was caught with cocaine, some weed and a gun in his home, and charged under § 922(g)(3). The US District Court for the Eastern District of Texas threw out the case, holding that making gun possession a felony because Ali liked to blow a little dope violated his 2nd Amendment right to keep and bear arms. The 5th Circuit agreed.

The high court’s decision is a “rollicking opinion” that is “worth a read,” the Wall Street Journal said this morning. “Yet it provides few hints of how to draw the line in tougher cases.”

President Trump’s Dept of Justice brought the case to the Supreme Court. The narrative was that DOJ thought it had the perfect unsympathetic defendant, a dual US and Pakistani citizen who had ties to the Iranian Revolutionary Guard Corps and went to Iran to honor Iranian general Qasem Soleimani, killed by a US drone strike. The government claimed Ali’s mother was seen on video saying she hoped her sons would become martyrs for Iran. The narrative was that SCOTUS thought that slamming a bum like Ali would be an easy lift.

Others (including me) thought that the Supreme Court could use a slam-dunk 2nd Amendment case like finding Ali Hemani, who used a little recreational pot and owned a Glock, was constitutionally protected, as a springboard to addressing the stickier questions about the constitutionality of § 922(g)(1), the subsection that bans all felons from ever possessing a gun.

Yesterday, the Court disappointed both narratives, holding in a 9-0 opinion that as applied to Ali, § 922(g)(3) violated his 2nd Amendment rights. The opinion, by Justice Neil Gorsuch, was painfully minimalist:

In many respects, this case is a narrow one. We do not address efforts to ban addicts… or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms… We do not address 18 U.S.C. § 922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). Ibid. We do not even address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.

Not that other Justices were unwilling to raise other issues. Justices Samuel Alito and Elena Kagan, the two who concurred in the judgment only, complained that they wanted to see a narrower opinion. Justices Ketanji Brown Jackson and Sonia Sotomayor spend five pages of their own blasting the New York State Rifle & Pistol Assn. v. Bruen test – on which modern 2nd Amendment jurisprudence turns – as a “failed… experiment” that should be overturned.  Justice Clarence Thomas was expansive in a different direction, writing his own concurring opinion that all of § 922(g) stretches the Commerce Clause too far: “Congress cannot regulate the possession of every thing that ever traveled across state lines.”

Now packing heat legally….

So Hemani is a win for what Ohio State University law professor Doug Berman estimates to be the “few thousand people have been convicted and sentenced under § 922(g)(3) in the last decade, and there could be many thousands more with such a conviction on their records. But, as just noted, Hemani does not necessarily make all these convictions suspect unless the case facts are similar to those in Ali Hemani’s prosecution.”

For those who hoped the case would be a blaze on the trail to getting the 2nd Amendment read into § 922(g)(1), however, Hemani falls short.

United States v. Hemani, Case No. 24-1234, 2026 U.S. LEXIS 2559 (June 18, 2026)

Sentencing Law and Policy, How many (thousands of) 922(g)(3) convictions are now suspect after Hemani? (June 18, 2026)

~ Thomas L. Root

When ‘Danger is My Business,’ 2nd Amendment Offers Scant Protection – Update for June 9, 2026

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HOME IS WHERE THE GUN IS

Curtis Squire had his home searched after a shooting occurred nearby. Police did not find the gun used in the crime, but they did find a different gun. Curtis, who had previous state convictions for conspiracy to possess and distribution of heroin, was charged with being a convicted felon in possession of a gun, a violation of  18 USC § 922(g)(1).

Curtis argued that § 922(g)(1) was unconstitutional under the 2nd Amendment as applied to him, because keeping a gun at home for self-defense was different than taking it out in public, and the history of gun legislation in America recognized as much. He also argued that a drug offense was not inherently violent and was not the kind of crime punished in colonial days by gun confiscation.

Last week, the 5th Circuit disagreed, admitting that Curt’s argument was “novel” but disposing of it nonetheless because what Curtis was convicted of doing – drug dealing – was inherently a dangerous undertaking.

The Circuit held:

[T]he home-based distinction [Squire] attempts to draw within our Nation’s historical tradition is mugged by the reality that our historical laws support his disarmament, even in the special confines of his home. While the Constitution safeguards the core right to keep and bear [arms] inside the home, see District of Columbia v. Heller, 554 U.S. 570, 625-28 (2008), it does not dislocate the government’s regulatory power to strip certain groups of this right, “Congress is entitled to make categorical judgments,” Vidal v. Elster, 602 U.S. 286, 319 (2024) (Barrett, J., concurring in part), including a values-based policy judgment that convicted drug traffickers, such as Squire—whose conviction involved an “inherently dangerous activity,” United States v. Kimble, 142 F.4th 308, 317 (5th Cir. 2025) —may be disarmed under § 922(g)(1) consistent with our historical tradition. That conclusion does not rest upon an “individualized assessment” that Squire is “dangerous,” based on some amorphous understanding of the word. See id. at 318; see also United States v. Mitchell, 160 F.4th 169, 187 (5th Cir. 2025) (“Rahimi did not sweepingly proclaim that ‘dangerousness’ is the new standard for Second Amendment challenges.”). Nor does it reflect a freewheeling judicial balancing of rights and safety. See New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 26 (2022) (explaining the “Constitution demands” that courts jettison “interest balancing” in favor of history and tradition). Instead, Squire’s dangerousness is premised solely on his drug trafficking offense, which places him in “a class of dangerous felons that our regulatory tradition permits legislatures to disarm.” Kimble, 142 F.4th at 318 (emphasis added).

United States v. Squire, Case No. 25-30324, 2026 U.S.App. LEXIS 15873 (5th Cir., June 2, 2026)

~ Thomas L. Root

10th Circuit Says 2nd Amendment Inquiry on § 922(g) Should Focus on Future Dangerousness – Update for September 8, 2025

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MINORITY REPORT

A divided 10th Circuit panel last week added a disturbing gloss onto the issue of the constitutionality of 18 U.S.C. § 922(g) (which prohibits felons, drug users and others from possessing guns), suggesting that courts should consider a defendant’s future dangerousness in an “as applied” challenge to whether the 18 USC § 922(g)(3) prohibition on unlawful drug users possessing guns violates the 2nd Amendment.

The Circuit’s approach is reminiscent of the Tom Cruise dystopian movie “Minority Report,” where the police arrested people for crimes they had yet to commit.

Jared Harrison, who worked at a marijuana dispensary and apparently liked to sample the product, was charged with violating § 922(g)(3), which prohibits firearm possession by “any person… who is an unlawful user of or addicted to any controlled substance.” The Western District of Oklahoma federal district court dismissed the indictment, holding that § 922(g)(3) – as applied to non-intoxicated weed users like Jared (who was not high when he was pulled over and arrested) – violated the 2nd Amendment.

The 10th Circuit reversed.

In the wake of the Supreme Court’s decision in United States v. Rahimi, the 10th noted, “the appropriate [2ndAmendment] analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” The Circuit complained that the district court found that “our historical tradition of firearm regulation is limited to disarming those who have acted dangerously in the past.  But we conclude, contrary to the district court, disarming those believed to pose a risk of future danger is consistent with a “principle[] that underpin[s] our regulatory tradition.”

The government argued that “for those who unlawfully use marijuana, like Mr. Harrison, research ‘amply demonstrate[s] a connection between marijuana use specifically and violence.'” Jared, on the other hand,  contended “marijuana users are not in a class of dangerous people.” The 10th said that to determine whether § 922(g)(3) as applied to Jared was “consistent with” the government’s dubious claim, it “must show non-intoxicated marijuana users pose a risk of future danger,” and it remanded the case to the district court for additional fact-finding.

It’s tough to accurately predict future criminality. As the dissenting judge put it, “the district court was correct to reject the government’s invitation to strip away Mr. Harrison’s 2nd Amendment rights based only on abstract statistics and “projected” dangerousness. Remanding for factfinding on these issues puts a tremendous burden on Mr. Harrison, one which is inappropriate given that it is the government’s burden to justify § 922(g)(3)’s application in response to his 2ndAmendment challenge.”

United States v. Harrison, Case No. 23-6028, 2025 U.S.App. LEXIS 21978 (10th Cir. Aug 26, 2025)

~ Thomas L. Root

Surprising Support for DOJ Gun Rights Proposal – Update for July 1, 2025

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DEMOCRATS SPLIT ON RESTORING FELON GUN RIGHTS

Jake Fogleman of The Reload, a weekly report on the politics of gun control, reported last weekend that the Dept of Justice’s proposal to reauthorize the long-dormant gun rights restoration process for people convicted of nonviolent felonies appears to be pitting federal and local Democrats against one another.

Last February, President Donald Trump ordered a review of federal gun policy. One of the first proposals to come from that review was a proposed rulemaking to let DOJ use 18 USC § 925 to restore gun rights, essentially waiving 18 USC § 922(g) for those people. The initial recipient of this administrative grace, even before the rulemaking began, was actor and Trump supporter Mel Gibson, disqualified from gun possession by a prior domestic violence conviction.

In the comment period just ended, 16 Democratic state attorneys general – including those representing liberal bastions like California, Hawaii, Illinois, Connecticut and New Jersey – submitted a letter supporting the proposal (subject to what The Reload called “numerous caveats… intended to ensure that no one truly dangerous is able to make it through the process”). But their letter was surprisingly sympathetic to the resurrection of the process.

“While there is no constitutional requirement that mandates any particular form of firearms rights restoration by states or the federal government, as a policy matter, we believe that our residents’ lives should not be defined by the worst mistakes of their pasts,” the letter said.

On the other hand, six Democratic senators and representatives filed comments arguing that the proposed rule is an unlawful exercise of executive power being done to “help violent criminals regain firearms.”

“Given the pervasiveness of gun violence in our nation, this Administration should not be circumventing Congress’s authority to prioritize restoring firearm privileges to individuals convicted of serious or violent crimes,” the Congressional letter said. “Our country is plagued by an epidemic of gun violence.”

The Reload suggested that “part of the driving force behind the rift, at least for those who oppose the new process, [may be] over who is pursuing the new federal policy. Democratic officials, particularly those in Congress, have been under intense pressure from their constituents to demonstrate their resistance to the Trump Administration’s aggressive executive actions in its second term. It’s possible that, under different political circumstances, the lawmakers now vocally opposed to the move might have been more amenable to the idea… In an era in which the Democratic coalition has largely homogenized around a set of hardline gun restrictions, and in which the question of gun rights for felons has primarily been confined to the courts, it is notable to see new differences of opinion on the question emerge in the political arena.”

No doubt, having a rational, consistent means of restoring gun rights to people subject to 922(g) is a good idea. My concern, however, is that adoption of such a plan may make DOJ unwilling to press for a Supreme Court resolution on the constitutionality of 18 USC § 922(g)(1) as applied to nonviolent felons. DOJ already refused to seek certiorari on Range v. Bondi, the 3rd Circuit en banc decision that stands as the best case for limiting § 922(g)(1). That case now binds courts in Pennsylvania, New Jersey and Delaware, but without a SCOTUS decision, it lacks nationwide applicability and, perhaps more important, does not support a 28 USC § 2244 motion to bring a second or successive § 2255 motion.

That procedural fact leaves thousands of prisoners unable to challenge the constitutionality of their convictions in the post-Bruen world.

The Reload, Analysis: Is Rights Restoration for Convicts a New Dividing Line on Guns for Democrats? (June 29, 2025)

DOJ, Withdrawing the Attorney General’s Delegation of Authority (March 20, 2025)

Letter from 16 State Attorneys General (June 18, 2025)

Letter from Rep Rosa DeLauro et al (June 18, 2025)

 – Thomas L. Root

A Pair and a Half of Shorts – Update for May 30, 2025

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Today, some shorts… just in time for warm summer weather.

shorts250530

SUMMER’S HERE – TIME FOR SOME SHORTS

Shocking News: BOP Healthcare Found Deficient – A report issued last week by the Dept of Justice Inspector General found that the BOP has failed to screen over a third of at-risk inmates for colorectal cancer (CRC). Between low screening offers and inmate refusals, less than half of average-risk inmates had a completed annual CRC screening.

healthbareminimum220603What’s more, out of a sample of 327 inmates, the IG found that around 10% had no documented follow-up after testing positive for CRC. Also, the Report found, the BOP lacked timeliness metrics for access to a colonoscopy for inmates with a positive CRC screening. The IG reported that “inmates in our sample waited an average of 8 months between a positive CRC screening and a colonoscopy.”

During the period covered by the Report, there were about 38,000 federal inmates who fell in the age range and “average risk” level for CRC. About 13,600 of them were not offered a screening, according to the Report.

BOP Director William K. Marshall III took time from being excited about a billion-dollar rebuild of Alcatraz (see below) to blame “longstanding staffing issues” for compromising efforts to screen inmates for colorectal cancer in certain facilities.

DOJ Inspector General, Evaluation of the Federal Bureau of Prisons’ Colorectal Cancer Screening Practices for Inmates and Its Clinical Follow-up on Screenings (Report 25-057, May 20, 2025)

Washington Post, Prisons bureau failed to screen inmates for colorectal cancer, watchdog says (May 20, 2025)

shorts250530

Sentencing Commission Releases 922(g) Data: About 7,500 people are convicted every year for 18 USC § 922(g) offenses, the US Sentencing Commission reported last week.

funwithnumbers170511The USSC said men accounted for 98% of all convictions, with 58% of them being black, 21% white and 17% Hispanic. The average age for defendants at conviction was 36 years old.

The defendants were overwhelmingly US citizens (95%). About 24% were Criminal History Category III and another 24% fell into Criminal History VI (the highest category).

USSC, Section 922(g) firearm offenses (May 22, 2025)

shorts250530

BOP Director Calls Rebuilding Alcatraz “Exciting Opportunity”: BOP Director William K. Marshall III, who has less than $200 million in his FY 2025 budget to make $3 billion in infrastructure repairs to existing prisons, told Fox News a week ago that his team is actively exploring the possibility of reopening Alcatraz, the 330-bed penitentiary on an island in San Francisco Bay.

excited250530Marshall called the project – a late-night idea President Trump hatched late on his inaptly-named “Truth Social” site a month ago – an “exciting opportunity” and one that aligns with the Trump administration’s law-and-order priorities.

Last week, KTVU-TV reported that estimates to make the repairs needed to reopen Alcatraz as a prison are close to $1 billion, plus another $40 million to $100 million a year in maintenance.

Corrections1, BOP director: Reopening Alcatraz is an ‘exciting opportunity’ (May 23, 2025)

KTVU, Bureau of Prisons director ‘excited’ about reopening Alcatraz as max-security prison (May 23, 2025)

– Thomas L. Root

Bryan Gets His Gun – Update for April 24, 2025

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GOVERNMENT ENDS RANGE V. ATTY GENERAL NOT WITH A BANG BUT A WHIMPER

fudd250424Last December, the 3d Circuit held that the 18 USC 922(g)(1) felon-in-possession statute was unconstitutional as applied to Bryan Range. Bryan’s recent criminal history included nothing more than a few traffic tickets and fishing without a license, but a quarter century before, he was convicted of making a false statement to get food stamps for his hungry family. That was enough to trigger the F-I-P prohibition on his possessing a gun.

The en banc opinion held in essence that a prior nonviolent offense that qualified under 18 USC 922(g)(1) to prohibit someone from possessing a gun violated the 2nd Amendment. Applying New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, the Circuit held that Bryan

remains one of ‘the people’ protected by the 2nd Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms. More than two decades after he was convicted of food-stamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm. The record contains no evidence that Range poses a physical danger to others. Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.

This was not the case’s first rodeo. An en banc opinion held the same for Bryan in June 2023, but the Biden Dept of Justice sought Supreme Court review. While the petition was pending, the Supreme Court handed down Rahimi, a case that held that temporarily disarming someone subject to a domestic protection order complied with the 2nd Amendment. SCOTUS remanded all pending 2nd Amendment challenges on its docket – including Range – for reconsideration in light of Rahimi.

gun160711The 3d Circuit ruled that the end of 2024 that nothing in Rahimi changed its position on Bryan’s 2nd Amendment right to buy a hunting rifle. I was fairly sure that the government would head to the Supreme Court again in order to protect America from the dangerous likes of Bryan. Indeed, the DOJ sent signals that it was seriously considering doing just that.

In mid-March, President Trump’s Acting Solicitor General asked the Supreme Court for extra time to decide what to do with Range, reporting that she

has not yet determined whether to file a petition for a writ of certiorari in this case. The additional time sought in this application is needed to continue consultation within the government and to assess the legal and practical impact of the Court of Appeals’ ruling. Additional time is also needed, if a petition is authorized, to permit its preparation and printing.

SCOTUS obliged with an extension until last Tuesday (April 22).

With no fanfare, DOJ let the revised deadline pass without a petition for certiorari being filed. This means that the Range decision is final, and in the 3d Circuit at least, people who have been convicted of nonviolent felonies now have a path to restore their gun rights.

What the DOJ decision not to challenge Range at the Supreme Court might mean for the broader question of the as-applied constitutionality of 922(g)(1) is less clear. It could be that DOJ’s compliance with President Trump’s executive order to lessen the burden on 2nd Amendment rights has led it to permit jurisprudence to develop that ties F-I-P to dangerousness rather than the existence of a prior conviction. It could also be a strategic decision that Range was not the hill the government wanted to die on, and that there are better cases in the SCOTUS pipeline (Duarte, perhaps) for the government to use to draw a line in the F-I-P sand.

circuitsplit220516Ohio State University law professor Doug Berman, writing last December in his Sentencing Law and Policy blog, suggested that “[b]ecause this Range ruling creates a clear circuit split on the constitutionality of 18 USC 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the U.S. Dept of Justice. But maybe the new incoming [DOJ] officials might not want to test the application and reach of the 2nd Amendment in this particular ‘narrow’ case.”

Regardless of the DOJ’s reasons for taking a pass on Range, the en banc decision is now final, and Bryan can have his gun. What is more, the finality is an incremental but very clear step toward resolving the question of how Bruen and Rahimi limit the reach of F-I-P. Certainly, people in 3rd Circuit with F-I-P convictions may have a path open to them (albeit one with procedural hurdles to cross) to challenge their 18 USC § 922(g)(1) convictions.

Dept of Justice, Application for an Extension of Time Within Which to File a Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit, Case No. 24A-881 (March 12, 2025)

Range v. Attorney General, 124 F.4th 218 (3d Cir., December 23, 2024)

Sentencing Law and Policy, En banc 3rd Circuit again finds federal felon-in-possession ban unconstitutional as applied to Bryan Range (December 23, 2024)

– Thomas L. Root

Another Incremental Victory for Felon-In-Possession – Update for March 31, 2025

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5TH CIRCUIT UPHOLDS FELON-IN-POSSESSION CONSTITUTIONALITY AS APPLIED TO DEFENDANT WITH VIOLENT PAST

The 5th Circuit last week upheld the constitutionality of 18 USC § 921(g)(1)’s felon-in-possession statute as applied to a defendant with a prior aggravated battery conviction.

Comparing the battery offense to Colonial era “armed and affray” laws, the Circuit ruled that the 2nd Amendment permits disarming people like the defendant, Jeremy Schnur.

violent160620The 5th said Jeremy’s “violent aggravated battery conviction is analogous to, and arguably more dangerous than, the ‘prototypical affray [which] involved fighting in public,’ the precursor to the ‘going armed’ laws punishable by arms forfeiture… These affray and going armed laws were intended to “mitigate demonstrated threats of physical violence similar to that displayed by Schnur when he perpetrated the aggravated battery offense [and] supports a tradition of disarming individuals like Schnur pursuant to § 922(g)(1), whose underlying conviction stemmed from the threat and commission of violence.”

The 5th’s approach continues to suggest that those with nonviolent felonies in their background cannot be held subject to the felon-in-possession statute consistent with the 2nd Amendment. This approach has been adopted by the 3rd Circuit in Range v. Atty General and suggested by the 6th Circuit in United States v. Williams. The same question is currently on en banc review in the 9th Circuit’s United States v. Duarte.

United States v. Schnur, Case No. 23-60621, 2025 U.S. App. LEXIS 7030 (5th Cir. March 26, 2025)

– Thomas L. Root

St. Vincent Must Remain Unarmed, 10th Says – Update for February 18, 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.

ADDING TO THE 922(g)(1) MAYHEM…

melyndavincent250218You may remember Melynda Vincent, a woman convicted of bank fraud 15 years ago for writing some bad checks while in the throes of drug addiction. Since then, Melynda cleaned up, graduated from a drug treatment program, earned an undergraduate degree and two graduate degrees, and founded the Utah Harm Reduction Coalition – a nonprofit organization for drug treatment and criminal-justice reform – and a mental health counseling service, Life Changes Counseling.

She’s a poster child for rehabilitation. No, more than that, maybe for sainthood, someone who turned a horrific past and debilitating addiction into something that will benefit countless people (and make society safer).  A therapist who has ‘walked the walk’ the people she counsels are on right now.

In 2021, Melynda sued to be allowed to own a gun. No matter that she might be a saint. The 10th Circuit held that 18 USC § 922(g)(1)’s felon-in-possession prohibition on gun possession was constitutional as applied to her. After all, she was a felon and that was the end of the story.

At the time, Melynda took her argument to the Supreme Court. SCOTUS sat on her petition for certiorari (along with the government’s request that the high court review the 3d Circuit’s Range decision), and then finally GVR’d her, sending the case back to the 10th for reconsideration in light of United States v. Rahimi.

‘Hint, hint,’ SCOTUS seemed to be saying to the Circuit, ‘take a look at her ‘dangerousness’ before you rubber-stamp a denial based on pre-Rahimi law.

Last week, the 10th ignored the hint. It held that despite New York State Rifle & Pistol Assn v. Bruen and despite Rahimi, its 2009 decision in United States v. McCane that § 922(g)(1) was constitutional when applied to any felon in any situation was still good law. The Circuit relied “on the Supreme Court’s 2008 statement in District of Columbia v. Heller that it was not ‘cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons’” and Rahimi’s recognition of “the presumptive lawfulness of these longstanding prohibitions,” quoting Heller.

“Longstanding?” Prior to 1961, no federal law would have prohibited someone in Melynda’s situation from possessing guns. As the first Range opinion noted, “modern laws have no longstanding analogue in or national history and tradition of firearm regulation.”

The 10th noted that the 4th, the 8th and the 11th Circuits also “have held that Rahimi doesn’t abrogate their earlier precedents upholding the constitutionality of § 922(g)(1).”

stvincentB250218Melynda is as sympathetic a felon-in-possession petitioner as anyone could find, maybe even more so than Bryan Range (who, after all, had one ticket for fishing without a license ticket in the 25 years since his food stamp conviction). If § 922(g)(1)‘s felon-in-possession prohibition does not violate the 2nd Amendment as applied to St. Melynda Vincent, the “presumptive lawfulness of these longstanding prohibitions” must be an irrebutable one.

Expect Melynda’s request for Supreme Court review to drop onto the SCOTUS docket before Memorial Day.

Vincent v. Bondi, Case No 21-4121, 2025 USAppLEXIS 3179 (10th Cir. Feb 11, 2025)

– Thomas L. Root