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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

8th Circuit Affirms ‘Cookie-Cutter’ Approach to Felon Firearm Disenfranchisement – Update for September 9, 2025

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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)

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024)

The Reload, Analysis: Eighth Circuit Ruling Shows Thorny Legal Questions Still Surround Rights Restoration Push (September 7, 2025)

~ Thomas L. Root

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

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ONE TOKE OVER THE 2ND AMENDMENT LINE?

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

Making “Good Enough” on 922(g)(1) the Enemy of 2nd Amendment Perfection – Update for May 19, 2025

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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.

perfectiongood250519Several 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.”

gibsingun250519DOJ 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.”

melyndavincent250218Last 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).

Opposition to Petition for Certiorari, Hunt v. United States, Case No 24-6818 (filed April 25, 2025)

The Reload, The Coming DOJ-SCOTUS Showdown Over Felon Gun Rights (May 18, 2025)

Solicitor General Letter to Sen Richard Durbin (April 11, 2025)

Petition for Certiorari, Vincent v. United States, Case No. 24-1155 (filed May 12, 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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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

Dangerousness (and More) and 922(g) Constitutionality – Update for February 14, 2025

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3RD CIRCUIT’S TROUBLING SUGGESTIONS ON 922(g)(1)

Following its en banc Range v Attorney General II decision– that the 18 USC 922(g)(1) felon-in-possession (F-I-P) statute violates the 2nd Amendment where it prohibits a person with a single disqualifying but nonviolent fraud conviction 25 years before from owning a gun – the 3d Circuit earlier this week remanded a similar case for the trial court to inquire into whether the petitioner had a history of dangerousness.

dice161221Restaurateur George Pitsilides’ hobby is high-stakes poker, an avocation that extended into sports betting and hosting illegal poker tournaments. He was convicted 25 years ago of placing sports bets with a Pennsylvania bookie – law-breaking that must seem quaint to anyone watching Eli and Peyton Manning on the Fanduel ad during the Superbowl – conduct that disqualifies him from gun possession under the F-I-P statute.

In 2019, he sued the government for the right to own a gun, arguing among other things that the F-I-P statute violated the 2nd Amendment as applied to his situation. While the case was on appeal, the Supreme Court handed down decisions in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, cases “which effected a sea change in 2nd Amendment law,” as the 3rd Circuity put it, and required that a record be made of George’s “dangerousness.”

nickdanger220426The Circuit held that while Rahimi and Range II “did not purport to comprehensively define the metes and bounds of justifiable burdens on the 2nd Amendment right, they do, at a minimum, show that disarmament is justified as long as a felon continues to “present a special danger of misusing firearms… in other words, when he would likely pose a physical danger to others if armed.” The appellate court observed that

[a]s evidenced by our opinion in Range II, the determination that a felon does not currently present a special danger of misusing firearms may depend on more than just the nature of his prior felony…. [W]e agree with the 6th Circuit: Courts adjudicating as-applied challenges to 922(g)(1) must consider a convict’s entire criminal history and post-conviction conduct indicative of dangerousness, along with his predicate offense and the conduct giving rise to that conviction, to evaluate whether he meets the threshold for continued disarmament. As Range II illustrated, consideration of intervening conduct plays a crucial role in determining whether application of 922(g)(1) is constitutional under the 2nd Amendment… Indeed, such conduct may be highly probative of whether an individual likely poses an increased risk of “physical danger to others” if armed.

The Circuit ruled that “while bookmaking and pool selling offenses may not involve inherently violent conduct, they may nonetheless, depending on the context and circumstances, involve conduct that endangers the physical safety of others. That assessment necessarily requires individualized factual findings.”

So what is so troubling about this ruling? A couple of things. First, the Pitsilides court described the en banc Range II decision as turning on several factors, including having “lived an essentially law-abiding life since” the 25-year-old crime, had no history of violence, “had never knowingly violated 922(g)(1)’s prohibition while subject to it, posed no risk of danger to the public, and then filed a declaratory judgment action seeking authorization to bear arms prospectively.” The holding suggests that whether the F-I-P statute can constitutionally be applied to a defendant depends on him or her first seeking government permission (in the form of a declaratory ruling) before possessing a gun.

f**kdraft250214Imagine this standard being applied to free speech: A state law making the wearing clothing emblazoned with the phrase “f**ck the draft” a crime because of the exhibition of an obscene word would violate the 1st Amendment only if the wearer had not violated the unconstitutional statute to begin with and had won a judicial holding that the statute was unconstitutional before donning the offending shirt. (The shirt was the featured garb in Cohen v. California).

The second problem is with the squishiness of the term “dangerousness.” As Ohio State law professor Doug Berman aptly described the issue in his Sentencing Law and Policy blog earlier this week:

I have dozens of questions about how a “dangerousness” standard is to apply in the 2nd Amendment context, and I will flag just a few here.

For starters, there are many folks who were clearly dangerous, and were convicted of possibly dangerous crimes in their twenties, who thereafter mature and are no clearly longer dangerous years later. Do these folks have 2nd Amendment rights? More broadly, data show that women as a class are much less likely to commit violent crimes than men, so does this suggest women with criminal records are more likely to have 2nd Amendment rights than men because they are, generally speaking, less dangerous? And, procedurally, who has burden on the issue of “dangerousness” in civil and criminal cases? I assume Pitsilides will have to prove by a preponderance that he is not dangerous in this civil case that he brought, but does the Government now need to prove dangerousness beyond a reasonable doubt in every 18 USC 922(g) criminal prosecution?

The F-I-P “as applied” 2nd Amendment battle is just warming up.

Pitsilides v. Barr, Case No. 21-3320, 2025 U.S. App. LEXIS 3007 (3d Cir. Feb. 10, 2025)

Sentencing Policy and Law, Third Circuit panel states “Second Amendment’s touchstone is dangerousness” when remanding rights claim by person with multiple gambling-related offenses (February 12, 2025)

– Thomas L. Root

Trump Executive Order Hints At Felon-In-Possession About Face – Update for February 10, 2025

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PRESIDENT (AND FELON) TRUMP MAY CARE ABOUT § 922(g)(1)

OK, President Trump is a convicted felon. But millions of Americans know how easy it is to end up with that label.

Because Trump is now a guy surrounded by men and women with guns but not himself allowed to touch one due to 18 USC § 922(g)(1) – the felon-in-possession statute – I have been speculating for a few months about whether his personal stake in being able to again pack his personalized “Trump .45” Glock would cause him to do something about the issue of F-I-P constitutionality.

Trumpgun250113The 3d Circuit has underscored its view that § 922(g)(1) can be unconstitutional as applied to a nonviolent felon (Range v. Attorney General) and the 6th Circuit has hinted that it feels the same (United States v. Williams). The 9th Circuit said as much in United States v. Duarte, but that holding is on en banc review and probably won’t survive. Some other circuits have gone the other way.

After New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, there’s been little doubt that the “as applied” 2nd Amendment question that swirling around the F-I-P statute will reach the Supreme Court sooner rather than later. Likewise, the Dept of Justice’s intractable opposition to any loosening of gun restrictions has been a feature of every court challenge of § 922(g), not just F-I-P but also drug user in possession, person-under-indictment in possession and domestic abuser-in-possession.

trumpglock45250210Last Friday, Trump issued an executive order that strongly hints that the DOJ will soon be changing its views. The EO directed Pam Bondi, the new Attorney General, to “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… to protect the 2nd Amendment rights of all Americans.” The EO specifically orders her to review “[t]he positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their 2nd Amendment rights.”

This does not mean that the DOJ will drop its opposition to any or all of the varied “prohibited person in possession” issue raised by § 922(g), even whether F-I-P is constitutional as applied to a nonviolent defendant whose convictions are a quarter century old like Bryan Range. But it is a clear signal that the next SCOTUS § 922(g) case may feature a much kinder, gentler DOJ that we’ve seen so far.

White House, Executive Order: Protecting Second Amendment Rights (February 7, 2024)

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

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

United States v. Duarte, 108 F.4th 786 (9th Cir. 2024)

– Thomas L. Root