Courts Disagree as to Whether the Federal Felon-in-Possession Firearm Prohibition Violates the Second Amendment

Courts Disagree as to Whether the Federal Felon-in-Possession Firearm Prohibition Violates the Second Amendment

Legal Sidebari

Courts Disagree as to Whether the Federal
Felon-in-Possession Firearm Prohibition
Violates the Second Amendment
May 28, 2024
There is growing disagreement among the federal appeals courts as to whether the federal ban on
individuals convicted of a felony possessing firearms, found at 18 U.S.C. § 922(g)(1) and commonly
known as the “felon-in-possession” prohibition, violates the Second Amendment. A federal appeals court
judge recently predicted that “[o]ne day—likely sooner, rather than later—the Supreme Court will address
the constitutionality of Section 922(g)(1) or otherwise provide clearer guidance on whether felons are
protected by the Second Amendment.”
Given that possibility, this Sidebar examines the current circuit split regarding Section 922(g)(1). The
Sidebar begins by providing an overview of the primary Supreme Court cases interpreting the Second
Amendment, including the Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen
that announced a new analytical methodology for Second Amendment challenges to firearms laws. The
Sidebar then summarizes the post-Bruen cases in which federal appeals courts have split as to the
constitutionality of the felon-in-possession prohibition, including a May 9, 2024, ruling from the Ninth
Circuit that the prohibition was unconstitutional as applied to the defendant in that case. The Sidebar
closes with considerations for Congress.
Select Supreme Court Second Amendment
Jurisprudence
Pre-Bruen Cases
The Second Amendment provides, “A well-regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear arms, shall not be infringed.” For most of American history,
the Supreme Court remained largely silent as to the meaning of this provision. In 1939, the Court
suggested in United States v. Miller that the right protected by the Second Amendment is tied to the
maintenance of the militia. Miller gave rise to further opinions in the lower courts regarding whether the
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Second Amendment guarantees an individual right or a collective, militia-based right. Then, in its 2008
decision in District of Columbia v. Heller, the Court adopted the former, individual-right interpretation.
The Court held that the Second Amendment permits “law-abiding, responsible citizens” to possess arms
for a “lawful purpose,” particularly self-defense in the home. The Court added that “nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by
felons,” among other things.
While Heller recognized that the Second Amendment guarantees an individual right to possess arms for at
least some purposes, Heller left unanswered many questions about the scope of the constitutional right.
Accordingly, lower courts following Heller were uncertain as to whether, for example, the Second
Amendment right extends beyond the home to public places. Also, because Heller did not set forth an
explicit framework for assessing whether firearms laws are consistent with the Second Amendment, lower
courts did not always apply a uniform standard of review to challenged laws.
Bruen
In the 2022 case New York State Rifle & Pistol Association v. Bruen, the Supreme Court clarified that the
Second Amendment right is not restricted to the home, declaring that “[n]othing in the Second
Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.” The
Court pointed out that, because the central component of the Second Amendment right is self-defense, the
right applies to at least some public places where confrontation may occur and thus where self-defense
may be needed.
With respect to the applicable standard for measuring the constitutionality of firearms laws, the Court
announced a test requiring courts to view Second Amendment challenges through the dual lenses of text
and history. The Court summarized the test as follows:
[W]hen the Second 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
Second Amendment[.]
The Court offered some additional details on the history-based aspects of the test, explaining that
historical analysis of modern-day gun laws may call for reasoning by analogy to determine whether
historical and modern firearm regulations are “relevantly similar.” The Court identified two primary
considerations for this comparative analysis: first, “whether modern and historical regulations impose a
comparable burden on the right of armed self-defense,” and second, “whether that regulatory burden is
comparably justified.” The Court also instructed lower courts to examine “how and why the regulations
burden a law-abiding citizen’s right to armed self-defense.” With respect to the closeness of the
relationship between historical and modern regulations, the Court indicated that the government need only
“identify a well-established and representative historical analogue, not a historical twin.” The Court also
dispelled any notion that a historical focus would limit the scope of the Second Amendment to arms that
existed in the past: “even though the Second Amendment’s definition of ‘arms’ is fixed according to its
historical understanding, that general definition covers modern instruments that facilitate armed self-
defense.”
Providing an example of how the test could play out, the Court referenced regulations of firearms in
“sensitive places,” such as schools and government buildings. The Court generally took the historical
record to mean that weapons could be prohibited in locations such as “legislative assemblies, polling

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places, and courthouses,” and as such the Court suggested that courts could “use analogies to those
historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of
firearms in new and analogous sensitive places are constitutionally permissible.”
The Bruen Court characterized its decision as clarifying whether the Second Amendment right recognized
in Heller extends beyond the home and applying “[t]he test that we set forth in Heller ... to assess whether
modern firearms regulations are consistent with the Second Amendment’s text and historical
understanding.” Other aspects of Heller, including the decision’s language regarding the presumptive
constitutionality of certain firearms restrictions such as “longstanding prohibitions on the possession of
firearms by felons,” were not before the Bruen Court. As a result, lower courts have been asked to address
the interplay between Heller and Bruen, including whether certain firearms restrictions thought to have
been permissible under Heller are constitutionally invalid post-Bruen.
Circuit Split on the Constitutionality of the “Felon-in-
Possession” Prohibition
Cases Ruling Prohibition Unconstitutional as to Specific Defendants
Under federal law, codified at 18 U.S.C. § 922(g)(1), individuals who have been convicted of a crime
punishable by imprisonment for a term exceeding one year are (with some exceptions) prohibited from
possessing firearms. Following Bruen, the Third and Ninth Circuits have held that the felon-in-possession
ban is unconstitutional as applied to specific parties.
In the Third Circuit case, Range v. Attorney General, Bryan Range had a prior conviction for making false
statements to obtain food stamps in violation of Pennsylvania law, an offense that subjected him to the
felon-in-possession prohibition. Range argued that the felon-in-possession prohibition—which he claimed
prevented him from purchasing a rifle for deer hunting and self-defense purposes—violated the Second
Amendment. A three-judge panel of the Third Circuit ruled in favor of the government. The full, en banc
Third Circuit reversed, agreeing with Range.
Applying Bruen, the en banc court first determined that Range was one of “the people” protected by the
Second Amendment. While the government asserted that the amendment covers only “law-abiding,
responsible citizens,” the court responded, among other things, that the government’s conception of this
phrase was far too restrictive and logically could mean that “every American who gets a traffic ticket is no
longer among ‘the people’ protected by the Second Amendment.” The court thus decided that the plain
text of the Second Amendment implicates the felon-in-possession ban, which would preclude Range from
possessing a rifle to defend himself in the home. Turning to the felon-in-possession ban’s consistency
with a historical tradition of firearm regulation, the court concluded that the historical analogues offered
by the government fell short, as the government did not show that Range belonged to a specific class of
historically disarmed individuals; that historical punishments for nonviolent felonies included lifetime
disarmament; or that historical laws disarming individuals who used firearms in the commission of their
offenses would have applied to Range (who did not use a firearm to commit his fraud offense). The court
thus held 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 in light of his violation of a particular Pennsylvania
law. (For further details on Range, see CRS Legal Sidebar LSB11072, Third Circuit Holds that
Application of Felon-in-Possession Ban Violates the Second Amendment, Creating Circuit Split, by
Matthew D. Trout.)
In the Ninth Circuit case, United States v. Duarte, Steven Duarte had five prior, nonviolent criminal
convictions under California law. After law enforcement observed Duarte tossing a handgun out of a

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window, he was convicted of being a felon in possession of a firearm in violation of Section 922(g)(1).
Duarte claimed that Section 922(g)(1) was unconstitutional as applied to him, and a Ninth Circuit panel
agreed by a 2-1 vote. The majority first acknowledged that prior circuit precedent had upheld Section
922(g)(1) against a Second Amendment challenge, but the majority decided that it was no longer bound
by that pre-Bruen opinion because it did not use or otherwise comply with the analytical approach set
forth in Bruen. The majority next explained that Duarte, an American citizen, was not excluded from
Second Amendment protection on account of his felony convictions because “all Americans” are among
“the people” who possess the Second Amendment right. The majority then held that the government’s
proffered historical analogues for the lifetime felon-in-possession ban were inadequate. The majority
reasoned that the Founders had not enacted laws prohibiting individuals convicted of crimes from
possessing firearms; early laws generally were aimed at disarming certain disloyal individuals,
insurrectionists, and noncitizens; state proposals of the time would only have disarmed individuals
threatening violence or presenting a risk of public injury; harsh punishments were reserved for certain
felony offenses, not all (violent and nonviolent) felonies; and even then, the historic response to the
underlying crime controlled, and some of Duarte’s offenses either were nonexistent or would have been a
misdemeanor at the time of the founding.
Cases Rejecting Second Amendment Challenges to Prohibition
By contrast, following Bruen, the Seventh, Eighth, Tenth, and Eleventh Circuits have rejected
constitutional challenges to Section 922(g)(1) either as applied to particular parties or categorically. In the
Seventh Circuit case, the panel pointed to language from Heller that the ruling does not alter
“longstanding prohibitions on the possession of firearms by felons” and from concurring opinions in
Bruen that Bruen does not modify Heller. The court acknowledged the Third Circuit’s ruling in Range
and assumed there might be “room” for as-applied challenges to Section 922(g)(1). In the case before the
court, however, the Seventh Circuit held that the defendant was not a “law-abiding, responsible” person
protected by the Second Amendment, recounting the defendant’s convictions for “22 felonies, including
aggravated battery of a peace officer and possessing a weapon while in prison.”
In the Eighth Circuit case, the court issued an opinion four days before Range upholding the felon-in-
possession ban as constitutional. That case involved an individual’s criminal conviction for possessing a
firearm while having prior felony convictions for selling a controlled substance. The panel relied on the
Supreme Court’s language in Heller about the felon-in-possession prohibition, and the same concurring
opinions from Bruen, as the backdrop for its analysis. The court then held that historical analogues
supported disarming classes presenting a risk of dangerousness, and that individualized determinations of
such risk were not historically necessary for purposes of disarmament. In a 2-1 decision in a subsequent
case, the Eighth Circuit confirmed that as-applied challenges to Section 922(g)(1), requiring a court to
determine the provision’s constitutionality as applied to a particular felony, were foreclosed in the circuit.
In the Tenth Circuit case, the court determined that post-Heller circuit precedent—affirming the
constitutional validity of Section 922(g)(1) because Heller “appeared to recognize the constitutionality of
longstanding prohibitions on possession of firearms by convicted felons”—remained good law after
Bruen, as the Bruen court “didn’t appear to question the constitutionality” of Section 922(g)(1). The court
upheld the categorical ban on felons possessing firearms, explaining that “we have no basis to draw
constitutional distinctions based on the type of felony involved.” In a later case, the Eleventh Circuit also
held that it remained bound, for similar reasons, to its post-Heller, pre-Bruen circuit precedent rejecting a
Second Amendment challenge to the felon-in-possession prohibition.

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Considerations for Congress
The Supreme Court is currently reviewing a case, United States v. Rahimi, in which the Fifth Circuit
facially invalidated a federal law prohibiting the possession of firearms by persons subject to certain
domestic violence restraining orders. A ruling from the Court in Rahimi may further clarify the meaning
of the Second Amendment and address residual questions regarding how to apply the Bruen methodology
to laws potentially implicating the right to keep and bear arms.
The United States has also asked the Supreme Court to review the Third Circuit’s opinion in Range.
Given that the Court is taking up Rahimi, the United States has requested the Court to hold the petition in
Range pending a ruling in Rahimi and, following such a ruling, either vacate the Third Circuit’s decision
and remand the case back to that court, or fully review Range or another case raising the constitutionality
of Section 922(g)(1). The government’s petition in Range is pending.
Congress may assess how the Rahimi decision, once issued, informs the meaning of the Second
Amendment and the methodology applicable to constitutional challenges to firearms laws. Congress also
may monitor how the Supreme Court responds to the government’s petition in Range, which includes the
possibility that the Court will grant the petition and directly answer whether Section 922(g)(1) comports
with the Second Amendment, or whether and when as-applied challenges may be successfully mounted
against Section 922(g)(1). If the Court does not grant the petition, Congress may leave Section 922(g)(1)
as is or amend it to limit its application in a way that could bring the prohibition in closer alignment with
the positions taken by the Third and Ninth Circuits.

Author Information

Dave S. Sidhu

Legislative Attorney

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