Tag Archives: 922(g)(1)

Supremes Still Dodging § 922(g)(1) Constitutionality – Update for April 16, 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.

922(g) CONSTITUTIONALITY STILL UNSETTLED

The Supreme Court last month denied certiorari to a dozen pending 18 USC § 922(g)(1) petitions for review filed by people who argued that the statute – which prohibits possession of guns by a variety of different classes of people from wife-beaters to dopers to ex-felons – violates the 2nd Amendment as applied to them. These included what I thought was the best felon-in-possession case before it, Vincent v. United States.

The Vincent petitioner had a felony bad-check charge from 15 years before, but had since beaten her substance abuse, obtained a master’s degree and opened her own substance abuse counseling clinic. The 10th Circuit held that § 922(g)(1) constitutionally prevented her from owning a gun. After multiple relistings, SCOTUS decided it would not use Vincent to address the limitations of § 922(g)(1).

Last week, SCOTUSBlog reviewed the status of Supreme Court gun litigation. With respect to § 922(g)(1), it noted that “Justice Amy Coney Barrett is already on record opining that § 922(g)(1) is unconstitutional as applied to individuals convicted of non-violent crimes. After all, the historical tradition recognized in Rahimi extends only to dangerous individuals.” Several lower courts have agreed.

There is a well-developed circuit split on the question. However, the justices seem to be opting to see how the lower courts decide cases in the wake of whatever guidance it will provide when it decides Hemani in the next 75 days.  

The government has been selective about seeking SCOTUS review in the felon cases it has lost in the lower courts, such as largely limiting itself to decisions involving drug use (most likely to be affected by the decision in Hemani). The United States has also argued that the court should await the results of a DOJ rulemaking to provide a process for ex-felons – such as President Trump – to win back their gun rights. But 2nd Amendment advocates argue that § 922(g)(1) is unconstitutional as applied to nondangerous felons, and a program that bestows gun rights on people the government deems deserving turns a constitutional right into a privilege.

Two weeks ago, the 7th Circuit ruled in two separate cases that 18 USC § 922(g)(1) was not unconstitutional on its face or as applied to a defendant. The Court cited a long list of cases from other circuits finding § 922(g) was consistent with the 2nd Amendment, and said, “It is enough to cite the decisions we have mentioned, plus United States v. Watson, which is being released contemporaneously. Watson and the decisions in other circuits say all that is necessary. As in Watson, we reserve decision on as-applied challenges by persons whose felony convictions do not suggest that firearms would be dangerous in their hands. Some courts of appeals allow such challenges; some do not; in this circuit the issue is open. For a person such as Prince, however, once the general validity of § 922(g)(1) has been established, there is nothing more to say.”

SCOTUSBlog, The who, what, and where of gun control (April 7, 2026)

United States v. Hemani, Case No. 24-1234 (argued March 2, 2026)

United States v. Prince, Case No. 23-3155, 2026 U.S.App. LEXIS 9596 (7th Cir. April 2, 2026)

United States v. Watson, Case No. 24-2432, 2026 U.S.App. LEXIS 9597 (7th Cir. April 2, 2026)

~ Thomas L. Root

Bo, Beer and Beatdowns: ‘How Dangerous is 922(g)(1) Defendant? – Update for March 23, 2026

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6th CIRCUIT EXPANDS ABILITY TO CHALLENGE FELON-IN-POSSESSION CONSTITUTIONALITY

Bo Hostettler is not a quick learner.  After doing 48 months in prison for being a felon in possession of a gun, a violation of 18 USC § 922(g)(1), Bo got caught while on supervised release with, you guessed it, a gun.

Charged again as a felon in possession, Bo argued that 922(g)(1) violated his 2nd Amendment rights, both on its face and as applied to his circumstances. His District Court agreed and dismissed the charges.

The Government appealed to the 6th Circuit. While the appeal was pending, the Circuit re-examined its 2nd Amendment jurisprudence in light of Bruen and Rahimi. The result of that was United States v. Williams, a 2024 decision in which the 6th upheld § 922(g)(1)’s constitutionality  “on its face and as applied to dangerous people. However, we explained that when the government disarms people on a class-wide basis, like it does for felons under § 922(g)(1), individuals must have a reasonable opportunity to prove that they don’t fit the class-wide generalization.”

The Williams court focused on the defendant’s prior convictions for aggravated robbery and attempted murder as “most probative of the defendant’s dangerousness... because they require violence against another person [and] provide at least strong evidence that the individual is dangerous. But even where a defendant has committed those types of crimes, we recognized that 922(g)(1) might be susceptible to an as-applied challenge depending on the unique circumstances of the offenses committed.”

In Bo’s case, the 6th said, the burden lies with him to show he is not dangerous. The district court must consider hisentire criminal history,  not just his felony convictions; and the fact that he was caught with a gun while on supervised release is “potentially relevant.”

The government argued that Bo’s criminal history recited in his Presentence Report was sufficient to prove Bo was dangerous. But the Circuit said that the PSR criminal history contained no information about the underlying circumstances or details of his criminal conduct in those convictions. “Without that information,” the 6th held, “the district court was unable to make the ‘individualized assessment of dangerousness’ that our precedent requires.”

The Circuit remanded Bo’s case to the district court ‘to engage in the requisite factfinding,’ where Bo will have the opportunity to essentially retry all of his prior convictions – misdemeanor and felony – to prove his lack of dangerousness.

Still, this case is important, because the Circuit has provided defendants a roadmap to prove lack of dangerousness, and that map suggests that mere labels – such as “theft” or “assault” yield to the facts of the offense. 

I recall an out-of-town man visiting my hometown about 30 years ago who had the bad luck to be black while enjoying a beer in one of our seedier establishments. Five not-so-black patrons who had consumed too much beer and not enough lessons in racial tolerance harassed him, finally calling him out back to teach him a lesson.

Sadly for the harassers, the black patron was a Marine Corps Force Recon veteran. All five tough guys were whimpering on the ground by the time the police arrived.

Our local prosecutor, understanding that the black out-of-towner did not vote in county elections, but the families of the five attackers did, charged the Marine vet with five counts of assault. The vet finally pled to one Ohio 5th-degree felony assault and got no prison time.

He also undoubtedly never came to this county again.

Hostettler seems to suggest that if the veteran wanted to own a gun, defending himself in a three-to-one contest (if you’re thinking ‘five-to-one’, see this) should be the kind of facts that convince the court that the Marine just wanted to drink his beer.

United States v. Hostettler, Case No 24-3403, 2026 USAppLEXIS 8328 (6th Cir. March 20, 2026)

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

~ Thomas L. Root

Guns, Drugs and Appellate Waivers – Update for March 9, 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.

SUPREME COURT HAS PRISONER-FRIENDLY WEEK…

The Supremes heard oral arguments in two cases last week, and while it is always perilous to predict the outcome from what happens in oral argument, the signs favor two pro-prisoner decisions.

In the closely-watched United States v. Hemani case, the government sought review of a 5th Circuit holding that 18 USC § 922(g)(3) – which prohibits drug abusers from possessing guns – could be applied to a gun owner who smoked pot a few times a week consistent with the 2nd Amendment.

Attorneys for the government compared § 922(g)(3) to colonial-era laws that disarmed “habitual drunkards.” However, Justice Neil Gorsuch wondered whether Hemani even qualified as a “habitual user” of marijuana. Gorsuch observed that the term “habitual drunkard” carried a very different meaning in early American history, because people generally drank alcohol in great quantity. “John Adams,” Gorsuch said, “took a tankard of hard cider with his breakfast every day,” while “James Madison reportedly drank a pint of whiskey every day.”

And if those Founding Fathers were not “habitual drunkards,” Gorsuch asked, “then what do we know about Mr. Hemani? We know he uses marijuana … about every other day… [W]e don’t even know the quantity of how much he uses every other day.”  And the federal government, Gorsuch said, “has not been able to define what a user is.”

A majority of the justices seemed to agree that § 922(g)(3) may be overbroad, lumping together occasional drug users with people addicted to drugs who threaten public safety. “Is it the government’s position that if I unlawfully use Ambien or I unlawfully use Xanax, then I become dangerous?” Justice Amy Coney Barrett asked the government’s attorney. “What is the government’s evidence that using marijuana a couple times a week makes someone dangerous?” she added.

If the Hemani opinion focuses on “dangerousness,” it may advance arguments that nonviolent felons should not be subject to § 922(g)(1). Politico, however, warned that it is “unclear whether the justices will use the case against Ali Hemani to issue another major ruling on when the government can intrude on the 2nd Amendment right to bear arms.”

A case that has drawn lesser interest (but is maybe more consequential for defendants) is Hunter v. United States. Hunter asks what exceptions exist to federal defendants’ waivers of their right to appeal, language that appears in virtually every one of the 94% of federal cases that end with a guilty plea every year.

SCOTUSBlog reported that “[t]he justices seemed poised to endorse more exceptions than just the two the government endorsed – ones for ineffective assistance of counsel in entering into a plea agreement and for sentences above the statutory maximum. A number of justices also expressed misgivings about relying on contract law to define exceptions to appellate waivers… and a majority seemed likely to hold, at a minimum, that a defendant could escape from an appellate waiver when enforcing it would result in a “miscarriage of justice…”

The National Law Journal observed that DOJ’s “hard line on enforcing plea bargained waivers of appeal took U.S. Supreme Court justices aback,” even suggesting that if a district court were avowedly racist at sentencing, an appeal waiver would prevent the defendant from getting any relief.

Writing last week in his Sentencing Law and Policy blog, Ohio State University law prof Doug Berman argued that broad sentencing appeal waivers “insulate all sorts of sentencing errors from scrutiny and review, and they seem fundamentally inconsistent with the decision by Congress in the Sentencing Reform Act of 1984 to provide both defendants and the government with the right… to seek appellate ‘review of an otherwise final sentence’.”

Berman wrote that he “was pleased to discover at least one Justice (Justice Jackson) seemed drawn to the idea that broad sentencing appeal waivers were void as against public policy, and I was even more pleased that it was not clear that any Justice was eager to embrace the government’s suggestion that broad sentencing appeal waivers were subject to almost no exceptions. I predict the majority of the Court will end up between these extremes, and I am already looking forward to seeing what the middle ground will be.”

United States v. Hemani, Case No. 24-1234 (oral argument March 2, 2026)

Politico, Supreme Court wrestles with gun ban for drug users (March 2, 2026)

SCOTUSBlog, Supreme Court skeptical of law banning drug users from possessing firearms (March 2, 2026)

New York Times, Supreme Court Appears Skeptical of Law Banning Drug Users From Owning Guns (March 2, 2026)

Hunter v. United States, Case No. 24-1063 (oral argument March 3, 2026)

SCOTUSBlog, Justices poised to adopt exceptions to federal criminal defendants’ appellate waivers (March 6, 2026)

National Law Journal, ‘Racist Sentencing Judge?’: DOJ Stuns Supreme Court With Stance on Appeal Waivers (March 4, 2026)

Sentencing Law and Policy, Broad array of Justices express broad concerns about broad appeal waivers in Hunter oral argument (March 3, 2026)

~ Thomas L. Root

Medical Malpractice, Drunk Judges, Armed Dopers – Update for February 5, 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.

ARE THESE SHORTS LEGAL?

Some legal case shorts from the last week:

(1)  BOP Pays Out on Inmate Death from Medical Malpractice –  George Thacker reported to FCI Edgefield camp for a 33-month sentence on December 9, 2022. On Christmas Day, he was so doubled over in pain that he could hardly walk. Instead of performing an exam or medical tests, health services staff gave him ibuprofen and sent him back to his unit.

George died the next day from complications due to a perforated duodenal ulcer and peptic ulcer disease. George’s daughter (who is executor of George’s estate) hired legal counsel and sued the BOP under the Federal Tort Claims Act, alleging medical malpractice.

Last week, George’s daughter and the US Attorney for South Carolina reached an agreement for the government to pay $750,000 to settle the claim. A petition was filed Tuesday seeking the court’s final approval on the settlement.

Motion to Approve Settlement and Legal Fees, Docket Entry 28, Wesolowski v. United States, Case No 6:25-cv-6675 (January 27, 2026)

Chattanooga Times Free Press, $750K settlement pending in former Rhea County executive’s 2022 death (January 29, 2026)

(2)     Will He Recommend RDAP for Himself? – U.S. District Judge Thomas Ludington (Eastern District of Michigan) goes to trial at the end of this month on a charge that he crashed a car while “super drunk” near his northern Michigan vacation home.

Last October, Judge Ludington, allegedly crashed his 2019 Cadillac CT6 into two traffic signs near Petoskey, disabling his Caddy and triggering at least one airbag.

He was charged on counts of operating a motor vehicle while intoxicated and operating with a high blood-alcohol content. The “super drunk charge” is punishable by up to 180 days in jail, a $700 fine, 360 hours of community service, and vehicle immobilization. In Michigan, a person is considered drunk with a blood-alcohol level hits 0.08. A person is considered super drunk when BAC hits 0.17. 

mLive, Federal Bay City judge charged in ‘super drunk’ crash in northern Michigan (January 27, 2026)

(3) 5th Circuit declares § 922(g)(1) unconstitutional as applied to defendant – Charles Hembree was convicted of being a felon in possession of a firearm in violation of 18 USC § 922(g)(1) because of a single prior felony conviction for simple possession of methamphetamine. On appeal, Chuck argued that § 922(g)(1) was unconstitutional as applied to his situation.

Last week, the 5th Circuit agreed that convicting Chuck of § 922(g)(1) violated the 2nd Amendment. The Circuit ruled that there was no historical evidence that people possessing contraband that didn’t pose a danger to others were prohibiting from owning guns.

The 5th held that for possessing something prohibited to trigger prohibition on possessing a gun, the item had to be a weapon or something similar that harmed or could harm other people.

United States v. Hembree, Case No 24-60436, 2026 U.S.App. LEXIS 2051 (5th Cir. January 27, 2026)

 

~ Thomas L. Root

Another Circuit Invalidates Felon-in-Possession in Nonviolent Case – Updatebfor January 2, 2026

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5TH CIRCUIT HOLDS 922(g)(1) IS UNCONSTITUTIONAL AS APPLIED TO NONVIOLENT FELON

Ed Cockerham pled guilty for the Mississippi felony of failing to pay child support. He was sentenced to five years of probation, but he could have gotten up to five years in prison. He got his child support paid and was released from probation.

Subsequently, he was caught in possession of a gun, which put him in violation of 18 USC § 922(g)(1) based solely on the child support conviction. The district court refused to hold that § 922(g)(1) was unconstitutional as applied to his case. Ed appealed.

Two weeks ago, the 11th Circuit held that § 922(g)(1) violated the 2nd Amendment as applied to Ed’s Case. The Circuit observed that “historical tradition unquestionably permits the Government to disarm violent criminals… [but] history does not support the proposition that felons lose their 2nd Amendment rights solely because of their status as felons.”

In Ed’s case, he had fully paid the child support debt for which he was convicted at the time he was found in possession of a firearm. “So there’s no historical justification to disarm him at that moment,” the 5th ruled, “never mind for the rest of his life.” While other evidence suggested that Ed might be violent (he had been arrested for assault in the past), the Circuit said the 5th Circuit focuses “on the nature of the predicate offense rather than on the defendant’s broader criminal history or individual characteristics.”

The holding is consistent with the 3rd Circuit’s holding in Range v. Attorney General and the 6th Circuit’s United States v. Williams holding.  It is diametrically opposed to decisions of the 8th, 9th and 10th Circuits. The 10th Circuit case – Vincent v. United States – is on its third Supreme Court relist. 

United States v. Cockerham, Case No. 24-60401, 2025 U.S. App. LEXIS 33001 (5th Cir., December 17, 2025)

~ Thomas L. Root

‘Hell’ vs. Truth on Federal Clemency – Update for November 24, 2025

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GIVING ‘HELL’ TO THE CLEMENCY POWER

President Harry S Truman’s supporters liked to shout, “Give ‘em hell, Harry!” at his rallies. However, as Truman explained it, ‘I never did give them hell. I just told the truth, and they thought it was hell’.”

I once again heard from a reader last week that some of the guys at his facility thought I was too negative about President Trump. Seven years ago, I wrote glowingly about his support for the First Step Act, still the most consequential piece of criminal justice reform legislation in the last 30 years. But Trump has done nothing for federal criminal justice reform since then, and that’s the truth. To my critics, it just seems like ‘hell’.

‘Hell’, you ask? Minnesota constitutional lawyer Marshall Tanick last week aptly described the hellscape of Trump clemencies:

In addition to the unconditional pardons issued on the first day of his current term to all 1,500-plus January 6th rioters, as he promised during the campaign, with Floridians comprising the largest state group, and the 77 more recently to white collar election denier operatives, the president has issued more than 1,600 pardons and commutations of sentences this year. Nearly all of them, with a few exceptions like star baseball player Darryl Strawberry, have been given to political supporters and financial donors to his campaign or their relatives or those with business interests aligned with the president and his family. Most of them were charged and many convicted of massive fraudulent schemes.

A transparent theme has been political leanings, as reflected in his explanation for commuting the seven-year sentence of mendacious Republican former Congress member George Santos after serving a puny four months. The president said he released the discredited New Yorker from confinement because he did “ALWAYS VOTE REPUBLICAN,” as if that is the criterion for the exercise of presidential lenity.

Still waiting for your pardon or commutation? You probably don’t fit the criteria. Not like Dan Wilson, a man who – perhaps alone in American history – has received two presidential pardons in a single year. Wilson, a Kentucky militia member who joined the Capitol riot on Jan. 6, 2021, was indicted for that and as a felon-in-possession under 18 USC § 922(g)(1) for the guns agents found when they searched his home on a J6-based search warrant.

Trump had already erased Wilson’s felony conviction for his role in the riot when he issued his Inauguration Day pardon for all of the 1,500 participants in the attack. But Wilson remained in prison because the federal court concluded that the pardon was limited to J6 conduct and did not extend to separate crimes. Dan still had three years to serve for the 922(g)(1).

Last week, Trump quietly pardoned Wilson for the felon-in-possession count, reasoning that “because the search of Mr. Wilson’s home was due to the events of January 6, and they should have never been there in the first place…” according to a White House official.

In a separate action, Trump pardoned Suzanne Ellen Kaye for having threatened to shoot federal agents if they came to her house to question her about January 6th. The White House said her case was “clearly a case of disfavored First Amendment political speech being prosecuted and an excessive sentence.”

Meanwhile, if you were not at the January 6th riot, your clemency application will sit at the Office of Pardon Attorney. As I noted last week, only 1% of Trump’s clemencies this year went through the OPA.

‘But wait,’ you say. ‘You don’t have to be a rioter or election denier to get a pardon.’ Right you are. Just last week, Trump also pardoned Joseph Schwartz, a nursing home magnate who was sentenced last April to 36 months in prison for failing to pay $38 million in payroll taxes withheld from employees’ earnings. Schwartz hired a couple of right-wing lobbyists, paying them $960,000 to secure a pardon. Although Trump’s own interim US Attorney at the time, Alina Habba, said last April the offense deserved prison time (recommending a shocking 12 months and a day sentence), Trump signed off on the pardon. Schwartz walked out of FCI Otisville camp last week after serving three months.

A White House official, asked by the Washington Post whether Trump or others in the White House or Justice Department had met with Schwartz’s lobbyists, responded with a statement:

No one from White House Counsel nor [White House pardon czar] Alice Johnson met with the individuals named. Either way, the President is the final decision-maker on all pardons, and any one spending money to lobby for pardons is foolishly wasting funds.

Uh-huh.

I’m not alone in criticizing Trump’s gross abuse of clemency (at the expense of federal prisoners who deserve thoughtful consideration if not outright grant of commutation or pardon). Law professor Mark Osler, a national clemency expert, wrote last week on Sentencing Matters Substack:

These are hard days for people like me who believe that the pardon power is an essential part of the Constitution and a beautiful machine that embodies one of our primary national virtues: a belief in second chances. While clemency has been subjected to sharp criticism before (most recently, in the wake of Bill Clinton’s shady pardon of fugitive financier Marc Rich), the wave of criticism now — most often turning on President Trump’s grants to loyalists, celebrities, and business associates — has sometimes included outright calls to simply get rid of the federal pardon power.

Conservative writer Jonah Goldberg wrote last week that

[t]he president has some unique powers… including the sole, final authority to grant pardons. Pardons cannot be reviewed or repealed by Congress or the courts. It’s time we changed that—and the only way to do so is by amending the Constitution.

There are two reasons for getting rid of the president’s power to pardon. The first is the grotesque abuses of that power by Presidents Trump and Biden. In his first term, Trump issued a series of egregious pardons for, among others, lackeys, war criminals and political allies.

Biden then issued blanket and preemptive pardons for his family and various political allies… and a raft of other pardons and commutations that Biden allegedly just outsourced to ideologues on his staff.

Back in office in 2025, Trump has outdone Biden and himself. He launched his second term by granting mass pardons to the goons who beat police with flagpoles and stormed the Capitol on his behalf on January 6, 2021. Since then, he’s pardoned a rogues’ gallery of donors, partisan allies, and people with business ties to him or his family…

This coming week, the White House will pardon two turkeys out of the 219 million to be slaughtered in the US over the next 12 months. That puts a turkey’s odds of clemency at about 1:110 million. Sadly, for federal prisoners without money or political ties to the Trump Administration, the odds are not much better.

I’m for any president, regardless of party, who properly uses the clemency power to correct injustice. That has not been Trump in 2025. 

Just truth. Not hell.

Naples News, Presidential pardon process needs to be changed (November 20, 2025)

Washington Post, The case of a felon who paid lobbyists nearly $1 million to seek a Trump pardon (November 22, 2025)

Politico, Trump re-pardons a Jan. 6 defendant to erase unrelated gun conviction (November 15, 2025)

NPR, Trump issues two pardons related to Jan. 6 investigation (November 15, 2025)

Sentencing Matters Substack, A Terrible Use of a Beautiful Machine (November 17, 2025)

Los Angeles Times, Instead of Addressing Injustice, Pardons Only Pervert Justice (November 19, 2025)

USA Today, You can choose the names of turkeys to get a presidential pardon. Here’s how. (November 22, 2025)

~ Thomas L. Root

5th Circuit on the Gun Possession “Dangerousness” Bandwagon – Update for September 5, 2025

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5TH CIRCUIT SUGGESTS 922(g)(1) CAN’T APPLY TO NONVIOLENT OFFENDERS

Earnest Clark was on probation for a state aggravated assault with a gun charge when he was caught with yet another gun. He challenged his conviction for being a felon-in-possession (18 USC § 922(g)(1)) as violating his 2nd Amendment rights.

Last week, the 5th Circuit upheld his conviction but in a way that provides a roadmap for such “as-applied” challenges. (An “as-applied” challenge argues that while the F-I-P statute may not always violate the 2nd Amendment, it does violate the 2nd Amendment as it is applied to the individual facts of the defendant’s case).

The 5th agreed that Ernie’s conduct – possessing a gun – was plainly covered by the 2nd Amendment. However, the Circuit held, disarming him was consistent with the nation’s historical tradition of firearm regulation. Ernie’s predicate felony of aggravated assault with a firearm was a violent crime. The appellate court ruled that disarming people with violent criminal histories is consistent with historical tradition. Even if Ernie’s offense involved only negligent discharge of a firearm, it still fell “within the tradition” of disarming people who menace others with firearms or disrupt public order.

What’s more, the 5th held, Earnest possessed the gun while on probation, and § 922(g)(1) is constitutional when applied to those who possess firearms while on probation or supervised release.

The case strongly suggests that, consistent with the 2nd Amendment, someone with a nonviolent conviction who is not on probation cannot be convicted of F-I-P. What’s more, the decision advances the national trend of drawing a constitutional line between violent and nonviolent predicate offenses in F-I-P cases.

United States v. Clark, Case No. 24-60531, 2025 U.S.App. LEXIS 21452 (5th Cir. August 21, 2025)

~ Thomas L. Root

Vincent Case Has Sights on SCOTUS Review – Update for July 10, 2025

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‘CAN’T IGNORE THIS ONE,’ PARTIES MAY TELL SCOTUS IN 922(g)(1) CASE

I have written before about 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 has 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 focused on drug treatment and criminal-justice reform – as well as a mental health counseling service, Life Changes Counseling.

In February, the 10th Circuit said, “So what? You still can’t own a gun.” Melynda has filed for Supreme Court certiorari, and she has picked up both the Federal Public Defenders and the National Rifle Association as amici (filing briefs in support of her petition).

Most interesting is this: the DOJ was due to oppose her petition in June. It got an extension until July 11 and then last week asked for and got a second extension until August 11. 

It may be that DOJ, opposed to such petitions in the past but lately avoiding the issue (as in not seeking certiorari in the 3rd Circuit Range case), does not yet know what to do.

I have said before that Vincent is the best case out there to put the constitutionality of 18 USC § 922(g)(1) in front of the Justices. The DOJ’s position on this is something to watch closely.

Vincent v. Bondi, Case No. 24-1155 (petition for certiorari pending)

– Thomas L. Root

A Change in DOJ Approch to 922(g)(1)? – Update for April 11, 2025

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CURIOUS DEVELOPMENT(?) ON § 922(g)(1)

You may remember that the leading case on whether the 18 USC § 922(g)(1) felon-in-possession (F-I-P) statute complies with the 2nd Amendment is the 3rd Circuit decision, Range v. Garland (now renamed in honor of new Attorney General Pam Bondi).

gunfreezone170330Bryan Range, disqualified from owning a gun because of a conviction 25 years ago, sued the government, arguing that F-I-P was unconstitutional as applied to his case, because his conviction was non-violent – a food-stamp false statement case – and it was 25 years in the past. The 3rd Circuit agreed in an en banc opinion in 2023, and the government took it to the Supreme Court.

SCOTUS remanded it for further consideration in light of United States v. Rahimi. Last December, the 3rd Circuit again found F-I-P unconstitutional as applied to Bryan’s situation.

Late last month, Bondi filed for a 30-day extension to decide whether to ask the Supreme Court to accept the case for review. She said, “The Acting Solicitor General 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…”

On February 7, President Trump gave Bondi 30 days to submit a policy plan for enacting pro-gun reforms. Nearly two months later, nothing has been done.

gun160711Trump directed that “[w]ithin 30 days of the date of this order, the Attorney General shall examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the 2nd Amendment rights of our citizens, and present a proposed plan of action to the President, through the Domestic Policy Advisor, to protect the Second Amendment rights of all Americans.”

The 30-day due date for that report would have been March 9th, but that day came and went without any movement from Bondi or the White House. When this omission got some attention, the Department of Justice told ABC News that the deadline was extended to March 16. That date passed, too, with no report. Since then, according to The Reload, DOJ has not produced the report or provided any updates as to when it will be released.

gibsongun250411However, the New York Times reported a week ago that the DOJ was about to restore gun rights to actor Mel Gibson and 9 other people. The Times said, “The decision, which also applies to nine others, was approved by Attorney General Pam Bondi, according to the people, who spoke on the condition of anonymity for fear of retaliation. The specifics are expected to be published in The Federal Register…”

Attorney General, Bondi v. Range, Case No. 24A881 (March 12, 2025)

White House, Executive Order – Protecting 2nd Amendment Rights (February 7, 2025)

The Reload, Where Is the DOJ’s Second Amendment Report? (April 6, 2025)

New York Times, Mel Gibson’s Gun Rights to Be Restored by Justice Dept. (April 3, 2025)

– Thomas L. Root

St. Vincent Must Remain Unarmed, 10th Says – Update for February 18, 2025

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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