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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 2^nd 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 10^th 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 2^nd 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 7^th 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 2^nd 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

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 2^nd 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