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not use a firearm to commit his fraud offense). The court thus ruled that Section 922(g)(1) could not constitutionally be applied to Range, stressing that its decision was a “narrow” one applicable only to the defendant based on his violation of a particular Pennsylvania law.

The government filed a petition for review with the Supreme Court, pointing out that the Third Circuit’s opinion conflicted with decisions reached by the Eighth Circuit in United States v. Jackson and United States v. Cunningham, and another by the Tenth Circuit in United States v. McCane. The defendants in Jackson and Cunningham had also filed petitions for review in their respective cases. The Court ordered a remand of the Range case on July 2, 2024.

United States v. Daniels: Whether 18 U.S.C. § 922(g)(3), which prohibits the possession of firearms by a person who is an unlawful user of, or is addicted to, a controlled substance, violates the Second Amendment as applied to certain users.

On the same day the government sought review in Range, it also filed a petition seeking review of a case involving 18 U.S.C. § 922(g)(3), which prohibits an individual who is an unlawful user of, or who is addicted to, a controlled substance from possessing a firearm. As with the petition in Range, the government asked the Court to hold the petition pending its ruling in Rahimi and thereafter either vacate and remand the case or proceed with full review of this or another case raising the constitutionality of Section 922(g)(3).

Daniels stemmed from an April 2022 traffic stop in which two law enforcement officers pulled over Patrick Daniels for driving without a license plate. During the stop, the officers found several marijuana cigarette butts and two loaded firearms in the vehicle. Daniels admitted that he had used marijuana since high school and continued to do so regularly. Prosecutors alleged that Daniels was an “unlawful user” of marijuana, a controlled substance under federal law, and charged him with violating Section 922(g)(3).

Daniels moved to dismiss the indictment, asserting that Section 922(g)(3) is inconsistent with the Second Amendment. The district court disagreed, preserving the indictment and allowing the prosecution to proceed. A panel of the Fifth Circuit reversed. The Fifth Circuit first determined that Daniels belonged to the “law-abiding” class of individuals protected by the Second Amendment, reasoning that the universe of “law-abiding” individuals historically excluded only felons and the mentally ill. The court then concluded that the historical regulations advanced by the government were insufficiently comparable to Section 922(g)(3). First, the court explained that the government had not identified any “Founding-era law or practice of disarming ordinary citizens for drunkenness, even if that intoxication was routine.” “[A]t no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another,” the court wrote. The court acknowledged that “[a] few states banned carrying a weapon while actively under the influence,” but the court found these laws to be inapt as they “did not emerge until well after the Civil War.” Additionally, historical regulations offered by the government that disarmed “dangerous” individuals were motivated by different political and social reasons, and regulated different categories of individuals that did not include “ordinary drunkards,” the court concluded. Based on this analysis, the court held that the government failed to carry its burden justifying the application of Section 922(g)(3) to Daniels. Although the majority emphasized the “narrowness” of its holding, which applied only to Daniels and did not invalidate the statute on its face, a concurring opinion stated that it was “hard” to “avoid the conclusion that most, if not all, applications of § 922(g)(3) will likewise be deficient.”

The government filed a petition for Supreme Court review, arguing that the Court should have heard the case because the Fifth Circuit’s decision created a split with pre-Bruen opinions from other circuits, among other things. The Court remanded the case on July 2, 2024.

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Post-Rahimi Remanded Cases: Petitions Filed by Other Parties

• Vincent v. Garland, No. 23-683: “Whether the Second Amendment allows the federal government to permanently disarm Petitioner Melynda Vincent, who has one 15-year-old nonviolent felony conviction for trying to pass a bad check.”

• Jackson v. United States, No. 23-6170: “Whether 18 U.S.C. § 922(g)(1), the statute prohibiting possession of firearms by persons convicted of a crime punishable by imprisonment for a term exceeding one year, violates the Second Amendment as applied to Petitioner Edell Jackson [who had two prior felony convictions for distributing a controlled substance].”

• Cunningham v. United States, No. 23-6602: “Whether, as the Eighth Circuit held, 18 U.S.C. § 922(g)(1) (which prohibits any felon from possessing firearms) is invariably constitutional as applied to any defendant, no matter the case-specific circumstances?” Here, the defendant’s prior felony convictions were for driving under the influence of alcohol and being a felon-in-possession of a firearm in light of the driving-under-the- influence conviction.

• Doss v. United States, No. 23-6842: “Whether, as the Eighth Circuit held, 18 U.S.C. § 922(g)(1) (which prohibits any felon from possessing firearms) is invariably constitutional both facially and as applied to any defendant, no matter the case-specific circumstances?” The Eighth Circuit observed that the defendant had a “lengthy criminal record includ[ing] over 20 convictions, many of them violent.”

After Rahimi was decided, the federal government filed supplemental briefs in each of these cases concerning the constitutionality of Section 922(g)(1). The government asked the Court to “grant the petitions in Doss, Jackson, and either Range or Vincent,” consolidate any such granted cases, and hold any nongranted petitions pending the resolution of the granted cases. If the Court declined plenary review of the constitutionality of Section 922(g)(1), the government requested the Court to “grant, vacate, and remand (GVR) [the petition] in Range and deny certiorari in the remaining [felon-in-possession] cases.” On July 2, 2024, the Court took a third route granting, vacating, and remanding Range and the other cases listed above as well.

Considerations for Congress

On remand, a circuit court may determine that a challenged federal statute is inconsistent with the Second Amendment even upon consideration of the Supreme Court’s opinion in Rahimi. If so, the statute at issue may not be enforced at a minimum as to the challengers, would serve as circuit precedent applicable to subsequent challenges within the circuit to the same statute, and outside of the circuit may influence other federal appeals courts resolving similar Second Amendment questions.

A remanded case may produce an opinion that may be appealed to the Supreme Court. Any such Second Amendment case accepted for review could also inform and impact the statutory framework Congress has enacted to regulate firearms. If the Court does grant review in a Second Amendment case in a subsequent term, the Court may further clarify the status of existing federal firearms laws and the permissible bounds for any future firearms legislation. If the Supreme Court does not ultimately review any of these cases, developments in the courts of appeals may nonetheless offer further guidance for Congress on the constitutional standard established in Bruen and applied in Rahimi.