Felon in Possession After Rahimi

The Circuit Split Over As-Applied Second Amendment Challenges to 18 U.S.C. § 922(g)(1) After Bruen and Rahimi

The felon-in-possession ban, 18 U.S.C. § 922, declares that "[i]t shall be unlawful for any person" "who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year" to possess a firearm or ammunition in or affecting commerce. The framework for testing that prohibition comes from New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022): "when the Second Amendment’s plain text covers an individual’s conduct," the Constitution presumptively protects it, and "to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation." United States v. Rahimi, 602 U.S. 680 (2024) then clarified that "the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin the Nation's regulatory tradition" — a court asks whether the new law is "relevantly similar" to laws the tradition is understood to permit — while repeating Heller’s assurance that prohibitions on the possession of firearms by "felons and the mentally ill" are "presumptively lawful." Applying those instructions to § 922(g)(1), the courts of appeals have split.

One circuit sustains as-applied challenges. Sitting en banc on remand after Rahimi, the Third Circuit in Bryan Range v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024) repeated Heller’s explanation that "the people" as used throughout the Constitution "unambiguously refers to all members of the political community, not an unspecified subset," and held that a man convicted decades earlier of food-stamp fraud kept his right to keep and bear arms: "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 Second Amendment rights." The court stressed that "[o]ur decision today is a narrow one," tied to a record of a single non-violent conviction, a completed sentence, and no evidence of danger.

Most circuits have gone the other way. In USA v. Steven Duarte, 137 F.4th 743 (9th Cir. 2025), the en banc Ninth Circuit announced: "Today, we align ourselves with the Fourth, Eighth, Tenth and Eleventh Circuits and hold that § 922(g)(1) is not unconstitutional as applied to non-violent felons like Steven Duarte." The court agreed that a felon, as "a member of the national community," is "part of ‘the people’" whom the Constitution presumptively protects, but concluded that "§ 922(g)(1)’s permanent and categorical disarmament of felons is consistent with this Nation’s historical tradition of firearm regulations," because legislatures historically could punish the most severe crimes with permanent deprivations of liberty and could "disarm on a categorical basis those who present a ‘special danger of misuse’ of firearms." The Eighth Circuit, on its own post-Rahimi remand in United States v. Edell Jackson, 110 F.4th 1120 (8th Cir. 2024), was more categorical still, concluding "that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1)": "legislatures traditionally possessed discretion to disqualify categories of people from possessing firearms to address a danger of misuse by those who deviated from legal norms, not merely to address a person's demonstrated propensity for violence," and history shows "no requirement for an individualized determination of dangerousness as to each person in a class of prohibited persons."

The Sixth Circuit charted a middle course. United States v. Erick Williams, 113 F.4th 637 (6th Cir. 2024) held "that § 922(g)(1) is constitutional on its face and as applied to dangerous people," yet left the as-applied door open: because "[o]ur nation's history shows that the government may require individuals in a disarmed class to prove they aren't dangerous in order to regain their right to possess arms," "in an as-applied challenge to § 922(g)(1), the burden rests on Williams to show he's not dangerous." The court supplied the metric — "A person convicted of a crime is ‘dangerous,’ and can thus be disarmed, if he has committed (1) a crime ‘against the body of another human being,’ including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary" — and a court may "consider a defendant's entire criminal record—not just the specific felony underlying his § 922(g)(1) conviction."

The current shape of the split, then, has three positions. The Third Circuit stands alone in holding § 922(g)(1) unconstitutional as applied to a non-dangerous, non-violent offender, on a deliberately narrow, record-specific basis. At least five circuits — the Fourth, Eighth, Ninth, Tenth, and Eleventh — reject as-applied challenges by non-violent felons categorically, treating felons as a class that legislatures may permanently disarm without individualized findings of dangerousness. And the Sixth Circuit nominally preserves as-applied relief but assigns the defendant the burden of proving he is not dangerous, with crimes against the person and inherently dangerous offenses such as drug trafficking and burglary all but disqualifying — a standard under which relief will rarely issue. Every position rests on the same Bruen and Rahimi framework; the circuits divide over whether the historical tradition of disarmament turns on felon status as such or on an individualized showing of danger, a question on which the disagreement is now squarely presented, en banc courts on both sides, for Supreme Court resolution.