New post-Rahimi SG filing urges SCOTUS to “grant plenary review to resolve Section 922(g)(1)’s constitutionality”

June 25, 2024

In this post yesterday, I highlighted why the Supreme Court’s Second Amendment ruling in US v. Rahimi (basics here), did not make it any easier to figure out if the most prosecuted federal criminal gun prohibition, 18 USC § 922(g)(1), is or is not constitutionally sound in many (most?) cases. This provision, often described as “felon in possession,” formally prohibits all sorts of firearm activity and possession for anyone and everyone who has “been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” In the comments to the post, the discussion turned to some of the pending cases on this issue and speculated about what the Justices might do with these cases.

Helpfiully, a kind reader made sure I did not miss this new SCOTUS filing from US Solicitor General covering five pending cases challenging the constitutionality of the broad “felon in possession” prohibition. Here is how this filing starts:

These five cases present the question whether 18 U.S.C. 922(g)(1), the statute prohibiting a person from possessing a firearm if he has been convicted of “a crime punishable by imprisonment for a term exceeding one year,” ibid., violates the Second Amendment. In each case, we asked this Court to hold the petition for a writ of certiorari pending its decision in United States v. Rahimi, No. 22-915 (June 21, 2024). Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1)’s constitutionality. In particular, the Court should grant the petitions in Doss, Jackson, and either Range or Vincent; consolidate the granted cases for briefing and argument; and hold the remaining petitions pending the resolution of the granted cases. If the Court chooses not to take that course, it should grant, vacate, and remand (GVR) in Range and deny certiorari in the remaining cases.

The rest of the filing makes the case for resolving this constitutional question in short order, and I was pleased to see this paragraph highlighting the same recent data from the US Sentencing Commission that I flagged in my post:

Although Rahimi undermines the reasoning of the decisions holding Section 922(g)(1) invalid, the present conflict is unlikely to resolve itself without further intervention by this Court. And the costs of deferring this Court’s review would be substantial: Disagreement about Section 922(g)(1)’s constitutionality has already had widespread and disruptive effects. Out of the approximately 64,000 criminal cases reported to the Sentencing Commission in Fiscal Year 2022, more than 7600 involved convictions under Section 922(g)(1). See U.S. Sentencing Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses 1. Those convictions accounted for nearly 12% of all federal criminal cases. See ibid. Uncertainty about the statute’s constitutionality thus affects a significant proportion of the federal criminal docket.

Based on part on the vague (and sometimes contradictory) language in Rahimi, I agree wholeheartedly that “the present conflict is unlikely to resolve itself without further intervention” by the Supreme Court. For a variety of reasons, I am fearful that SCOTUS will GVR all these cases and try to keep dodging this issue. But it was obvious to me from the day Bruen was decided (see my post here from two years ago) that an originalist turn in Second Amendment jurisprudence served to make all broad felon-in-possession criminal statutes constitutionally suspect. SCOTUS has let this critical post-Bruen issue — which impacts roughly one in every six (non-immigration) federal propecutions as well as the Second Amendment rights of up to 10% of the US population — develop (and fester) long enough. The Justices will have to grant cert on this issue evetually, why not now?

A few (of many) prior related posts (recent and past):