Yesterday the Ninth Circuit via a lengthy en banc ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2025) (available here), rejected a Second Amendment challenge to the federal criminal law, 18 USC § 922(g)(1), that makes it a serious felony for a person with the equivalent of a prior felony to possess a firearm. The full opinion with the opinion for the court and three additional opinions runs 127 pages. Helpfully, the start of the main opinion provides a useful summary of the state of lower-court law on this oft-litigated issue:
Duarte argues that § 922(g)(1) is unconstitutional as applied to non-violent felons like him under Bruen’s analytical framework. While this is an issue of first impression for our court, we do not write on a blank slate, as Courts of Appeals across the nation have been wrestling with fresh challenges to the viability of § 922(g)(1) in the wake of Bruen. Four circuits have upheld the categorical application of § 922(g)(1) to all felons. See United States v. Hunt, 123 F.4th 697, 707–08 (4th Cir. 2024) (rejecting an as-applied challenge on a categorical basis); United States v. Jackson, 110 F.4th 1120, 1129 (8th Cir. 2024) (same); Vincent v. Bondi, 127 F.4th 1263, 1265–66 (10th Cir. 2025) (rejecting an as-applied challenge because neither Bruen nor United States v. Rahimi, 602 U.S. 680 (2024), abrogated circuit precedent foreclosing such a challenge); United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024), cert. granted, judgment vacated, No. 24-5744, 2025 WL 76413 (U.S. Jan. 13, 2025) (holding that Bruen did not abrogate circuit precedent foreclosing such challenges).
Other circuits have rejected as-applied challenges, but have left open the possibility that § 922(g)(1) might be unconstitutional as applied to at least some felons. See United States v. Diaz, 116 F.4th 458, 471 (5th Cir. 2024) (rejecting an as-applied challenge because the defendant’s underlying felony was sufficiently similar to a death-eligible felony at the founding); United States v. Williams, 113 F.4th 637, 661–62 (6th Cir. 2024) (rejecting an as-applied challenge because the defendant’s criminal record sufficiently showed that he was dangerous enough to warrant disarmament). By contrast, the Third Circuit has held that § 922(g)(1) is unconstitutional as applied to a felon who was convicted of making a false statement to secure food stamps. See Range v. Att’y Gen., 124 F.4th 218, 222–23 (3d Cir. 2024) (en banc). And, as of the date of this writing, the First and Second Circuits have declined to address constitutional challenges to § 922(g)(1) on the merits, while the Seventh Circuit has yet to definitively resolve an as-applied challenge. See United States v. Langston, 110 F.4th 408, 419–20 (1st Cir. 2024) (rejecting an as-applied challenge because there was no “plain” error); United States v. Caves, No. 23-6176-CR, 2024 WL 5220649, at *1 (2d Cir. Dec. 26, 2024) (same); United States v. Gay, 98 F.4th 843, 846–47 (7th Cir. 2024) (assuming for the sake of argument that there is some room for an as-applied challenge, but rejecting the defendant’s specific as-applied challenge because his prior felonies included aggravated battery of a peace officer and possession of a weapon while in prison).
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 Supreme Court has so far dodged this issue, which has been broadly litigated since Heller was decided back in 2008 and which has generated considerably more lower court division since Bruen and Rahimi reoriented Second Amendment jurisprudence. WIth this latest ruling in the largest circuit, and with the Justice Deparment’s new efforts to restore gun rights to more persons with criminal convictions (noted here), I suspect the Justices might see even more reasons to avoid taking up this issue in the days ahead.
A few of many prior related posts:
- Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi
- After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possession charge
- Sixth Circuit panel rules federal prohibition of felon gun possession is “constitutional on its face and as applied to dangerous people”
- Third Circuit panel states “Second Amendment’s touchstone is dangerousness” when remanding rights claim by person with multiple gambling-related offenses
- New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law
- Notable new accounting of post-Bruen Second Amendment claims brought by 1,450 criminal defendants
- What kind of Second Amendment case will be next for SCOTUS after Bruen and Rahimi?