Might Trump’s Justice Department conclude broad prohibitions on gun possession by drug users and convicted persons are unconstitutional?

February 10, 2025

The question in the title of this post is prompted in part by this recent Executive Order from Prez Trump titled “Protecting Second Amendment Rights.” Among its notable provisions, this EO directs Attorney General Bondi to review, inter alia, “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 Second Amendment rights.”

As regular readers know, ever since the Supreme Court’s landmark 2008 Heller decision found that the Second Amendment protected an enforceable individual right to possess arms, I have been questioning the constitutionality of various provisions of 18 USC § 922(g) which criminalizes any gun possession by various persons. Over the two decades since Heller, the US Justice Department has consistently defended (mostly successfully) these provisions again various Second Amendment claims. However, since the Supreme Court’s landmark 2022 Bruen decision, a number of courts have started to find various 922(g) provisions unconstitutional (or potentially unconstitutional) as applied.

Over at the Lisa Foundation, Tom Root is all over this matter with this new post headlined “Trump Executive Order Hints At Felon-In-Possession About Face.” Tom’s post provides this helpful context (with helpful links from the original)

I have been speculating for a few months about whether [Prez Trump’s] 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.

The 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’s 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….

[The Trump EO] 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.

I share the view that it is too early to assume anything about what Trump’s Justice Department might do on any of these fronts. But with a long textured history of court rulings, thousands of federal 922(g) prosecutions brought each year, and real challenges defending broad modern gun possession prohibitions on originalist grounds, this AG review is very much worth watching.

Some of many, many prior posts: