Blue Brief 2025-2026

The elephant in the room here is the prohibition of gun possession by convicted felons. Tens of thousands of offenders are in federal or state prisons on felon-in-possession charges. Any constitutional limits on these laws would be substantive rather than procedural changes. They would therefore apply not just to cases pending on direct review, but with full retroactivity, even decades after a conviction. Still more ominously, a § 922(g) conviction is the gateway to the fifteen-year minimum sentence for violent recidivists — an exceptionally sinister group — under the Armed Career Criminal Act . Invalidating the felon-in-possession laws would vacate every ACCA conviction. of § 922, such as subsections (g)(1) (disarming convicted felons) and (g)(4) (disarming any person “adjudicated as a mental defective” or “committed to a mental institution”), involve some manner of pre-deprivation process before an individual’s Second Amendment rights are lost. For that reason, they differ from subsection (g)(3) and “nothing in our opinion should be taken to cast doubt” on them. The language here (we cast no doubt) is stronger than the later language about the application of § 922(g) to other users of other drugs (we say nothing “either way”). Concurring in Hemani , Justice Jackson , joined by Justice Sotomayor, argued for the ends-means test proposed by Justice Breyer in Bruen . The felon-in-possession laws are hard to defend In Hemani, Justice Gorsuch thought it important enough to note that: Certain other provisions

on an ends-means basis. A perpetual firearms disqualification that sweeps up such convicted felons as Donald Trump, Martha Stewart, and Mark Wahlberg is patently overbroad. The Reconstruction Congress’s hostility to disarming African Americans sits uneasily with the estimated one-third of the African American adult male population with felony records. Indeed, it is not wholly beyond the realm of reason to speculate that Bruen ’s unusual history and-tradition test was reverse-engineered from the felt necessity of preserving the felon-in possession laws. That this living-constitution approach should appeal to the Court’s conservatives is otherwise difficult to explain. When the felon-in-possession laws do face a Second Amendment challenge in the Court, at least one vote may turn on whether the prosecution comes from a state or a federal court. In a separate Hemani concurrence, Justice Thomas reiterated his not-implausible view that the federal statute, § 922(g), in toto, is beyond Congress’s power under the Commerce Clause. If Justice Thomas adheres to this view, the government would lose a federal case if four other justices concluded that a § 922(g) prosecution violates the Second Amendment. The justices, of course, can always do nothing. This particular elephant may never make it out of the cert pool. If a Second Amendment challenge to the felon-in-possession laws ever does get to a decision on the merits, the justices will face a quite uncomfortable choice.

Donald Dripps

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 13