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ALERT – ALERT – SOLICITOR GENERAL MOTION ON 922(g)(1) CASES

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC 

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179


The U.S. Solicitor General filed a motion 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 we were pleased to see this paragraph highlighting the same recent data from the US Sentencing Commission:


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, we agree wholeheartedly that "the present conflict is unlikely to resolve itself without further intervention" by the Supreme Court. For a variety of reasons, we are fearful that the Supreme Court will GVR all these cases and try to keep dodging this issue. But it was obvious from the day Bruen was decided that an originalist turn in Second Amendment jurisprudence served to make all broad felon-in-possession criminal statutes constitutionally suspect.  The Supreme Court has let this critical post-Bruen issue — which impacts roughly one in every six (non-immigration) federal prosecutions 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 certiorari on this issue eventually, why not now?


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