We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ONE AND DONE
The 8th Circuit last week underscored its hostility to any “as applied” 2nd Amendment challenge to the 18 USC § 922(g)(1) felon-in-possession statute. The Circuit affirmed its holding in United States v.Jackson that “the federal prohibition on possession of firearms by felons is constitutional as a categorical matter. There is no need for a felony-by-felony analysis, and no requirement of an individualized determination of dangerousness as to each person in the class of prohibited persons.”
In 1991, Anthony Browne was a member of the Black Gangster Disciples motorcycle gang/criminal organization. He and some other BGDs followed a rival gang member home. One of Browne’s fellow gang members shot up the place, hitting the intended victim’s mother. While Tony wasn’t the triggerman, he was convicted of committing willful injury and criminal gang participation and got 10 years in prison.
After being released from prison in 1998, Tony got a computer science degree from the University of Iowa and worked for the next 20 years as a software engineer. In 2021, the Dept of Defense granted him a security clearance as part of his job. He also earned an executive order in 2005 from the Iowa governor restoring many of his rights (but not the right to own guns). At age 52, Tony has not had a brush with the law in 34 years.
No matter, the 8th said last week. A “legislature may dispossess forcible felons as a categorical matter,” the Circuit said, and Tony’s argument that under the 2nd Amendment, he is entitled to issuance of a handgun permit unless the sheriff concludes after an individualized determination that Browne is “currently dangerous,” is nothing more than an end run around that.
Writing in The Reload, Jake Fogleman observed that “while he’s no Bryan Range or Melynda Vincent, the distance from [Tony’s] conduct that could credibly lead to him being labeled ‘dangerous’ is significant. There do not appear to be any recent indications that he poses an ongoing threat to the community. On the contrary, he has by all accounts turned his life around. Browne argued his recent history indicates he’s peaceable and, therefore, should have his rights restored. The panel disagreed… ‘Browne’s argument is inconsistent with the relevant history and this court’s conclusions in Jackson. Early American legislatures ordered disarmament and authorized punishment of death for forcible felonies and even for some non-violent offenses… [W]e conclude that the government has satisfied its burden to show that a lifetime restriction on the right of forcible felons to possess firearms, subject to a gubernatorial pardon, is consistent with the Nation’s historical tradition of firearms regulation.”
Browne v. Reynolds, Case No. 24-1952, 2025 U.S.App. LEXIS 22449 (8th Cir. Sept 2, 2025)
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
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)
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
IS DOJ TRYING TO AVOID A SUPREME COURT 922(G)(1) CHALLENGE?
Voltaire wrote (roughly translated) that perfection is the enemy of good enough. Disturbing evidence is emerging that President Trump’s administration is adopting that standard in fighting to keep 18 USC § 922(g)(1) – the felon-in-possession ban that is the most enforced gun law on the federal books – in place.
Several DOJ Supreme Court filings last month urged SCOTUS to reject review of F-I-P cases asking whether § 922(g)(1) can be applied to nonviolent felons consistent with New York State Rifle & Postal Assn v. Bruen, arguing in part that the DOJ’s yet-unformed proposal to use 18 USC § 925(c) to restore gun rights for some felons is good enough.
In March, DOJ ginned up an ad hoc rights restoration program to reward actor and Trump supporter Mel Gibson by giving him back his gun rights despite a domestic violence conviction. Opposition to the decision cost Pardon Attorney Elizabeth Oyer her job. Ultimately, the agency restored the gun rights of 10 people (including Gibson), noting cryptically that each person had submitted “materials… seeking either a pardon or relief from federal firearms disabilities, and it is established to [the Attorney General’s] satisfaction that each individual will not be likely to act in a manner dangerous to public safety and that the granting of the relief to each individual would not be contrary to the public interest.”
DOJ has neither issued any regulations on how former felons might apply for gun rights restoration nor has it responded to multiple requests for details. But that has not stopped DOJ from citing this undisclosed and opaque process as an additional reason for the Supreme Court not to grant review in any felon-in-possession 2nd Amendment cases.
On April 25, Solicitor General John Sauer opposed a petition for cert from a 4th Circuit § 922(g)(1) as-applied denial. “Although there is some disagreement among the courts of appeals regarding whether § 922(g)(1) is susceptible to individualized as-applied challenges, that disagreement is shallow,” SG Sauer wrote, “[a]nd any disagreement among the circuits may evaporate given the Dept of Justice’s recent reestablishment of the administrative process under 18 USC § 925(c) for granting relief from federal firearms disabilities.”
The Reload, a gun law newsletter, said, “The Trump Administration’s preferred approach to gun rights for convicted felons [is] one that would grant a high degree of discretion and centralize the decision-making within the executive branch rather than through a widely applicable legal precedent, as gun-rights advocates have long sought in court. As a result, it may undermine many of the movement’s best cases by undercutting the claims of sympathetic plaintiffs.”
The Government seems to be deliberately avoiding picking a Supreme Court § 922(g)(1) fight that it doesn’t think it can win. I reported previously that DOJ decided against filing for cert after losing a 3rd Circuit en banc decision on § 922(g)(1)’s constitutionality. In a letter to the Senate Judiciary Committee, the Solicitor General said, “In the case of Bryan Range, a Pennsylvania man with a 30-year-old state misdemeanor conviction for understating his income on a food stamp application, the Third Circuit ruled the ban violated his Second Amendment rights… The Department of Justice has concluded that a petition for a writ of certiorari is not warranted in this case,” Solicitor General John Sauer wrote a letter sent to the Senate Judiciary Committee last month. “The Third Circuit’s decision is narrow, leaving § 922(g)(1) untouched except in the most unusual applications.”
Two weeks ago, the 9th Circuit in United States v. Duarte joined the 4th, 8th, 10th and 11th Circuits in refusing to distinguish between violent and non-violent criminals for the purposes of F-I-P constitutionality. The Reload said, “Assuming Duarte appeals the decision, which seems likely, it could present a compelling opportunity for the High Court to address the now deepened circuit split with the 3rd, 5th, and 6th Circuits, which have all recognized an ability for individualized challenges to the federal ban by non-violent offenders.”
Last week, a cert petition filed in Vincent v. Bondi may derail the DOJ’s efforts to avoid a Supreme Court reckoning on F-I-P. Melynda Vincent is the poster child for an as-applied challenge to § 922(g)(1), a woman who was convicted 17 years ago of felony bank fraud for passing a fraudulent $498 check when she was homeless and an addict. She got no jail time. Since then, she rehabbed, became a mom, earned several master’s degrees, and started her own rehab counseling firm. Nevertheless, § 922(g)(1) permanently keeps her from possessing a gun to protect her family.
The Reload said that SCOTUS may find ruling on F-I-P easier “by accepting a case like Vincent’s, where even most hardline gun-control advocates would have a difficult time arguing she is too dangerous for consideration.”
DOJ may oppose Vincent by arguing that its new § 925(c) gun rights restoration procedure, whatever it may be, is good enough to take care of her wish to possess a gun. But if § 922(g)(1) violates the 2nd Amendment as applied to Melynda Vincent, then some amorphous and opaque DOJ procedure to restore gun rights on the whim of the AG hardly cures the violation. What’s more, it means that some, if not many, of the tens of thousands of federal prisoners doing time for a potentially unconstitutional offense will be left out in the cold.
The “good enough” of a § 925(c) rights restoration will not be sufficient substitute for the “perfection” of a Supreme Court ruling on § 922(g)(1).
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Today marks our 1700th post since our beginning in 2015.
RANGE REDUX
A little more than two years ago, a 3d Circuit panel of three appellate judges held that arch-criminal Bryan Range – a man whose rap sheet included traffic tickets, fishing without a license and a misdemeanor false statement 25 years ago to get food stamps for his hungry family – had no 2nd Amendment right to own a hunting rifle or buy a shotgun.
The government sought Supreme Court review, but while the petition was pending, the Supremes handed down United States v Rahimi, a case that held that the temporary disarming of someone under a court-issued domestic protection order could be disarmed without offending the 2nd Amendment. SCOTUS remanded all of the 2nd Amendment challenges on its docket – including the Range decision – for reconsideration in light of Rahimi.
Since then, the 8th Circuit decided that Edell Jackson, a convicted drug dealer, could be disarmed under 18 USC § 922(g)(1) consistent with the 2nd Amendment. The 6th Circuit held in United States v. Williams that a felon with violent offenses in his past was properly subject to 922(g)(1) consistent with the 2nd Amendment (leaving open the question of § 922(g)(1)’s effect on people with nonviolent felonies), and – just last week – the 4th Circuit said that anyone with a felony conviction was outside the protection of the 2nd Amendment.
Now, the en banc 3rd Circuit has delivered for Bryan like Santa on Christmas Eve, holding last Monday that Bryan Range’s right to own a gun remains protected by the 2nd Amendment despite his quarter-century-old fraud offense.
Applying New York State Rifle & Pistol Association v. Bruen and Rahimi, the en banc Circuit “reject[ed] the Government’s contention that ‘felons are not among “the people” protected by the 2nd Amendment’ [and] that Bryan Range remains among ‘the people’ despite his 1995 false statement conviction. The 3d then rules that
[h]aving determined that Range is one of “the people,” we turn to the easy question: whether § 922(g)(1) regulates 2nd Amendment conduct. It does.
Against this backdrop, it’s important to remember that Range’s crime—making a false statement on an application for food stamps—did not involve a firearm, so there was no criminal instrument to forfeit. And even if there were, government confiscation of the instruments of crime (or a convicted criminal’s entire estate) differs from a status-based lifetime ban on firearm possession. The Government has not cited a single statute or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit a crime. Nor has the Government cited forfeiture cases in which the convict was prevented from regaining his possessions, including firearms (unless forfeiture preceded execution). That’s true whether the object forfeited to the government was a firearm used to hunt out of season, a car used to transport cocaine, or a mobile home used as a methamphetamine lab. And of those three, only firearms are mentioned in the Bill of Rights.
For the reasons stated, we hold that the Government has not shown that the principles underlying the Nation’s historical tradition of firearms regulation support depriving Range of his 2nd Amendment right to possess a firearm.
The Circuit noted that its decision “is a narrow one. Bryan Range challenged the constitutionality of 18 USC § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).” This suggests that those with prior convictions might have to apply piecemeal for confirmation that their 2nd Amendment rights remain intact.
The 6th Circuit has implied the same, complaining that the defendant – who was arguing in appeal of a § 922(g)(1) conviction that application of the felon-in-possession statute violated the 2nd Amendment – never sought to have his 2nd Amendment rights confirmed until he was caught with a gun.
For now, Range II is a breath of fresh air. The Circuit held resoundingly 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.”
Range creates a clear and well-defined circuit split on the constitutionality of 18 USC § 922(g)(1). This is probably not the end of the inquiry, although perhaps the Trump Dept of Justice may not share the current administration’s ardor for seeking certiorari on every 922(g)(1) case to come down the pike.
Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, noted that Bryan’s “case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime. Because 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 US Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the 2ndAmendment in this particular ‘narrow’ case.”
Range v. AG United States, Case No. 21-2835 (3d Cir. Dec. 23, 2024) 2024 U.S. App. LEXIS 32560, at *1
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
“Mull’s argument is foreclosed by 8th Circuit precedent,” the appellate court said, citing United States v. Jackson, a decision holding that even after United States v. Rahimi, 18 USC 922(g)(1) does “not violate the 2nd Amendment as applied to defendant whose predicate offenses were non-violent drug offenses.”
The Circuit also noted its decision two weeks ago in United States v. Cunningham that Jackson forecloses any argument that there must be a “felony-by-felony determinations regarding the constitutionality of § 922(g)(1) as applied to a particular defendant”), the opposite of what the 6th Circuit held in its Williams holding.
United States v. Mull, Case No. 23-3424, 2024 U.S.App. LEXIS 21943 (8th Cir. Aug 29, 2024)
5th Circuit Holds Alien-In-Possession is Constitutional But Sober Doper-in-Possession is Not: Last week, the 5th Circuit split on a pair of § 922(g) cases.
The § 922(g)(3) prohibition on people who use illegal drugs possessing guns is a different matter. In United States v. Connelly, the Circuit held that while § 922(g)(3) is not unconstitutional in all situations (such as some on meth shooting up farmers’ mailboxes), it is unconstitutional as applied to a defendant who uses weed and coke occasionally but is a “sober citizen not presently under an impairing influence and… [not] was intoxicated when she was arrested.”
The 5th said that by regulating a defendant based on habitual or occasional drug use, § 922(g)(3) imposed a far greater burden on her 2nd Amendment rights than history and the tradition of firearms regulation can support.
Kansas District Court Holds § 922(o) on Possessing Machine Gun is Unconstitutional ‘As Applied’: Complaining that the statutory definition of a machine gun is “extremely broad,” enough to encompass aircraft-mounted automatic cannon to a small stun gun to a BB gun that shoots multiple rounds of projectiles using compressed air,” a district court ruled that 18 USC § 922(o) – that outlaws possession of a “machinegun” (and only the U.S. Code calls a machine gun a “machinegun”) – is unconstitutional as applied to “bearable arms” such as defendant Tamori Morgan’s select-fire AR-15 and his Glock giggle switch (that makes a Glock pistol full auto).
The court rejected the Government’s attempt to show that 18th-century law provides a basis for § 922(o). Those laws banned breaching the peace with unusual or dangerous weapons, but unlike those laws, the Court ruled, § 922(o) “says nothing about the manner in which machineguns are carried or displayed. Instead, § 922(o) criminalizes the mere possession of such weapons without regard to how the possessor uses them.”
The Court also rejected the Government’s argument that the 2nd Amendment “would allow weapons to be prohibited solely on the basis that they are ‘dangerous and unusual” or ‘highly unusual in society at large.’”
The Court noted that possessing a machine gun is not illegal, but rather only possessing a machine gun that is not registered:
There are over 740,000 legally registered machineguns in the United States today,” the Court said. “Machineguns have been in existence for well over a century. While the federal government has regulated transfer and possession of such weapons since passage of the National Firearms Act in 1934,” even now, “it is perfectly legal for a person who has not been divested of his firearm rights under some other provision of law to acquire and possess a machinegun… In that sense, machineguns are not unusual. The government fails to address these facts, and thus fails to meet its burden to demonstrate that possession of the types of weapons at issue in this case are lawfully prohibited under the 2nd Amendment.
On a Reload podcast, 2nd Amendment attorney Matt Larosiere predicted the case is quite likely to be appealed and unlikely to win at the next level, but nevertheless the Morgan decision “would help him and other gun-rights activists in future cases against the ban as well as other portions of the NFA.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE 10TH GIVETH, THE 10TH TAKETH AWAY
In the world of gun restrictions, all eyes are on the Supreme Court, which will decide United States v. Rahimi – and maybe the future of the 2nd Amendment – sometime between now and June. But litigation over 18 USC § 922(g), the laundry list of people who the government says should not have guns or ammo, in the lower courts continues unabated.
Out in the wild, wild west, the 10th Circuit last week handed down a pair of 18 USC § 922(g) decisions, giving defendants a mixed bag.
In one case, Colorado defendant Kenneth Devereaux was convicted of being a felon in possession of a gun (violation of 18 USC § 922(g)(1)). He received a 2-level enhancement in his Guidelines range because the district judge considered a prior conviction for assault under 18 USC § 113(a)(6) to be a crime of violence.
Last week, the 10th Circuit disagreed. A “§ 113(a)(6) assault can be committed recklessly,” the Circuit observed, but since the 2021 Supreme Court decision in Borden v. United States, “a reckless offense categorically does not have as an element the use, attempted use, or threatened use of physical force against the person of another.”
Section 113(a)(6) “sets forth a single indivisible assault offense, to which only the categorical… approach [applies],” the 10th ruled. “Because an assault resulting in serious bodily injury under § 113(a)(6) can be committed recklessly, after Borden it cannot qualify as a crime of violence…”
Things did not go so well for Jonathan Morales-Lopez. He and a buddy were caught stealing guns from a Utah gun store. When he was frisked, the police found a loaded Smith and Wesson he had previously stolen from the same store stuffed in his pants and a personal-use amount of meth in a plastic bag.
The State of Utah did its number on Jonathan for the theft, but the Feds picked up the gun case. He was charged as an unlawful drug user in possession of a gun under 18 USC § 922(g)(3). After he was convicted, Jon argued that § 922(g)(3) was unconstitutionally vague, violating his 5th Amendment rights. The district court agreed with Jon, and the government appealed.
“When the validity of a statute is drawn in question, and even if a serious doubt of constitutionality is raised,” the Circuit wrote, “it is a cardinal principle that courts]will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” To avoid the vagueness problem, the 10th said, courts have interpreted § 922(g)(3) to convict a defendant only if the Government “introduced sufficient evidence of a temporal nexus between the drug use and firearm possession.”
Here, the appeals court said, that wasn’t even a close call. Jon was carrying his personal meth stash in his pocket and told the police after his arrest that he couldn’t remember much because he was high on the controlled substance at the time. “The facts presented at trial, coupled with reasonable inferences drawn from those facts, could support the conclusion that Morales-Lopez was an “unlawful user” of methamphetamine,” the Circuit held, “one whose use was ‘regular and ongoing, while in possession of a stolen firearm.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
RAHIMI ORAL ARGUMENT NEXT WEEK IS HIGH STAKES FOR SECOND AMENDMENT
On Tuesday, the Supreme Court will hear oral arguments in United States v. Rahimi, a case that will determine the constitutionality of 18 USC § 922(g)(8), the subsection of the federal firearms possession statute that bars people subject to domestic protection orders from having guns or ammo. Rahimi may well do more than that, addressing the constitutionality of all of 922(g) – including possession of guns by felons.
We hold that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s “unqualified command.
Bruen superseded the Court’s long-standing practice of allowing the government to weigh its interest in public safety against the possibility of imposing a limitation on 2nd Amendment rights.
Since Bruen, several 922(g)-based restrictions have been declared unconstitutional. Possession of guns by people who are subject to domestic protection orders, who use controlled substances – illegal under 922(g)(3), and who have been convicted of nonviolent criminal offenses, illegal under 922(g)(1), have been held to be unconstitutional under Bruen. The government has sought certiorari on all of these decisions, suggesting to the Supreme Court that a Rahimi decision can clean them all up (and in the government’s favor).
Social and public health advocates argue in essence that “validating the federal law prohibiting persons subject to domestic violence protective orders from gun possession will literally mean the difference between life or death for many victims of abuse, their family, friends, law enforcement, and the broader community,” as the Bloomberg School of Public Health puts it.
Rahimi provides the Supreme Court with an opportunity to clarify how lower courts should apply the new framework laid out in Bruen. This will significantly impact the continued viability of current gun laws and the ability of legislators to address what the Bloomberg School calls “the ongoing gun violence epidemic.”
But others suggest that 922(g)(8) looks “more like a political performance than a serious effort to reduce abusive behavior.” Writing in Law & Liberty, George Mason University laws professor Nelson Lund argues that nevertheless, “the government’s brief [in Rahimi] may look like little more than a Hail Mary pass aimed at persuading the Justices to revise or deceptively “clarify” the novel Bruen test. This gambit, however, could very well succeed. The Bruenholding has its roots in a dissenting opinion written by then-Judge Kavanaugh before he was promoted to the Supreme Court. His opinion was exposed to serious objections arising largely from the paucity of historical evidence that could support a viable history-and-tradition test. Bruen suffers from the same weakness, and it was clear from the start that the Court would find itself driven toward reliance on means-end analysis, although not necessarily the very deferential form that Bruen rejected.”
Mr. Rahimi fired off a few rounds at a fast-food joint when his friend’s credit card was declined.
Robert Leider, an assistant professor at George Mason University’s Antonin Scalia Law School in Arlington, Virginia, said at a Federalist Society forum in September that “the real legal question that everyone is interested in with Rahimi is to see how the court clarifies and applies the text, history and tradition test that it announced two terms ago in Bruen. Unquestionably, the government sought review in this case to water down the test.”
Solicitor General Elizabeth B. Prelogar took steps to expedite the review of Rahimi, citing the “substantial disruption” that invalidation of the domestic violence gun restriction would create. Meanwhile, as the American Bar Association Journal put it, Prof. Leider said the Solicitor General “slow-walked [the] cert petition in another gun case, in which the full U.S. Court of Appeals for the 3rd Circuit in June struck down the so-called felon-in-possession statute, barring those sentenced to prison for more than one year from possessing a firearm.”
That 3rd Circuit case, Range v. Atty General, involves a man convicted of food stamp fraud 25 years before who was prevented from buying a gun.
“Mr. Rahimi is the poster child for irresponsible gun possession,” Leider said. “I think the government wanted this case and not the Range welfare fraud case because this case is much easier on the judgment line.”
He’s right that Rahimi is a tough case for those hoping that Bruenmay ultimately limit the proscription on nonviolent felons owning guns (such as the case in the 3rd Circuit en banc decision in Range v. Attorney General. The evidence suggests that the presence of firearms in abusive relationships increases the risk of injury and death substantially.
After seeking cert on the Range decision, the government suggested the Court sit on the petition until a decision is handed down in Rahimi.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
7TH REMANDS 2ND AMENDMENT GUN POSSESSION CASE IN WAKE OF BRUEN
Patrick Atkinson was convicted 25 years ago of federal mail fraud. After maintaining an otherwise clean record for a generation, he wanted a gun. But because 18 USC § 922(g)(1) bars gun possession for anyone convicted of “a crime punishable by imprisonment for a term exceeding one year,” he could not buy one. He sued seeking to have § 922(g)(1) declared unconstitutional as applied to him.
Last week, the 7th Circuit sent it back for consideration in light of Bruen’s holding.
“Bruen announced a new framework for analyzing restrictions on the possession of firearms,” the Circuit ruled. “The new approach anchors itself exclusively in the 2nd Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively proving that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms… The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen. In these circumstances, we think the best course is to remand to allow the district court to undertake the Bruen analysis in the first instance.”
Two recent decisions have considered the constitutionality of the felon-in-possession statute. On June 8, the 3rd Circuit held the statute unconstitutional in Range v. Attorney General. Six days before that, the 8th Circuit ruled the opposite way in United States v. Jackson.
Atkinson v. Garland, Case No. 22-1557, 2023 U.S. App, LEXIS 15357 (7th Cir., June 20, 2023)
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
This was followed by the predictable questions from prisoners: “When can I use the Range decision to get my § 922(g) conviction vacated? And how about getting rid of my aggravated identity theft conviction under § 1028A?”
Very good questions, and inquiries for which the hopemongers who will write any motion for a federal prisoner in exchange for a modest fee – let’s call them what they are, hopemongers – have a ready answer. That answer usually starts with, “Pay me…”
Now let’s ask the professor. Or, because he’s nowhere around, ask me…
To be sure, a lot of people could be affected by the decisions, provided there’s a procedural route to raise them. About 21% of federal prisoners have a § 922(g) conviction, while about 2% are doing time for aggravated ID theft. That’s a potential of about 35,000 felon-in-possession and 3,500 § 1028A defendants.
Range: Remember first that the Range decision is only binding in the 3rd Circuit. If your case isn’t from there, Range doesn’t help you. In fact, as I reported a week ago, the 8th Circuit just went the other way in its United States v. Jackson decision.
However, if your 1-year deadline for filing a § 2255 motion hasn’t expired, by all means challenge § 922(g) constitutionality in your motion. But if your time has expired, your options are limited. Under 28 USC § 2255(f)(3), you can file within a year of a new SCOTUS ruling on the constitutionality of a statute, but Range is not a Supreme Court case. If you have already lost your § 2255 motion, you have to get Court of Appeals permission to file another § 2255 and that standard likewise requires that the motivating decision be from the Supreme Court.
So how about a 28 USC § 2241 petition? We’ll know a lot more about § 2241s in a few weeks when SCOTUS decides Jones v Hendrix. For now, fitting a Range-type claim into the standards for bringing a § 2241 (under the § 2255(e) saving clause) will be tough.
For § 922(g) defendants, it may be worth a shot if your conviction came from a 3rd Circuit district court. For everyone else, it’s a waiting game…
ID Theft: For those beyond the § 2255 filing deadline, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the saving clause.
Because Dubin is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s argument that it could easily have been), the route of filing a second or successive § 2255 (under the rules set up by § 2255(h)) is probably unavailable.
General Pro Tip: If you’re proceeding on § 2255 or § 2241, find competent help. Procedural questions are boring but vitally important to winning.
Ohio State University law prof Doug Berman observed last week that “offenders now looking to pursue what might be called “Dubin claims” could, of course, face procedural barriers of all sorts. But the still-open-ended sentence reduction authority of 3582 might be one ready means for at least some (over-sentenced) prisoners to secure relief…”
The 8th Circuit last week underscored its hostility to any “as applied” 2nd Amendment challenge to the 18 USC § 922(g)(1) felon-in-possession statute. The Circuit affirmed its holding in United States v. Jackson that “the federal prohibition on possession of firearms by felons is constitutional as a categorical matter. There is no need for a felony-by-felony analysis, and no requirement of an individualized determination of dangerousness as to each person in the class of prohibited persons.”
Writing in The Reload, Jake Fogleman observed that “while he’s no Bryan Range or Melynda Vincent, the distance from [Tony’s] conduct that could credibly lead to him being labeled ‘dangerous’ is significant. There do not appear to be any recent indications that he poses an ongoing threat to the community. On the contrary, he has by all accounts turned his life around. Browne argued his recent history indicates he’s peaceable and, therefore, should have his rights restored. The panel disagreed… ‘Browne’s argument is inconsistent with the relevant history and this court’s conclusions in Jackson. Early American legislatures ordered disarmament and authorized punishment of death for forcible felonies and even for some non-violent offenses… [W]e conclude that the government has satisfied its burden to show that a lifetime restriction on the right of forcible felons to possess firearms, subject to a gubernatorial pardon, is consistent with the Nation’s historical tradition of firearms regulation.”
