Eric Oh | Do Federal Firearm Bans for Convicted Felons Violate the Second Amendment?

Background

After serving a state sentence for illegal use of a firearm, John Wayne Morgan Jr. was stopped by police in Louisiana in 2023 while riding in a vehicle containing four loaded guns, one of which was stolen. He was indicted on two federal charges: (1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and (2) possessing unregistered firearms, in violation of 26 U.S.C. § 5861(d).

Morgan moved to dismiss both counts, arguing that the statutes violated the Second Amendment under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). In this case, the Supreme Court established a two-step framework for Second Amendment issues. First, courts ask whether the Amendment’s plain text covers the conduct at issue. If it does, the burden shifts to the government, and they must then demonstrate the existence of longstanding historical tradition of disarming those with criminal histories such as Morgan. Morgan contended that, under this test, the government could not justify § 922(g)(1) as applied to him because there was no founding-era tradition of disarming individuals based solely on a felony conviction rather than on demonstrated dangerousness.

The district court denied his motion. Morgan pleaded guilty to the felon-in-possession charge in exchange for dismissal of the unregistered firearms count but preserved his right to appeal.

In United States v. Morgan, 147 F.4th 522 (5th Cir. 2025), the Fifth Circuit affirmed his conviction, holding that § 922(g)(1) is constitutional as applied to Morgan. The court reasoned that founding-era “going armed” laws, which disarmed individuals who threatened public safety, provided a sufficient historical analogue for the statute. Applying the two-step framework, the court concluded that the government may disarm those who have demonstrated dangerousness through violent firearm use.

Issue

Does 18 U.S.C. § 922(g)(1), which prohibits convicted felons from possessing firearms, violate the Second Amendment on its face or as applied?

The Split

Since Bruen, the federal circuits have been divided on how to apply the Supreme Court’s historical test to § 922(g)(1), particularly when the felony is nonviolent. On one side of the split, the Fifth, Sixth, Eighth, and Tenth Circuits have upheld § 922(g)(1), although each courts uses a different historical rationale. On the other side, the Third Circuit has struck down the statute when applied to a nonviolent offender. The split hinges on how courts interpret “dangerousness” and whether the status of being a felon alone is enough historical analogue to lead to disarmament.

The Fifth and Eighth Circuits

The Fifth and Eighth Circuits have both upheld § 922(g)(1) as consistent with the nation’s historical tradition of disarming those individuals who pose dangers to public safety, but they diverge in how they interpret “dangerousness.” The Fifth Circuit views dangerousness in terms of actual violence or conduct indicating a threat to public peace. The court analogized Morgan’s previous firearm related conviction to founding era “going armed” laws which targeted those who posed risks of actual violence. Under this view, § 922(g)(1) is permissible when applied to those whose previous conducts demonstrate a present-day analogue to historical dangerousness.

The Eighth Circuit, on the other hand, does not care for the actual violence standard as shown in United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024). Here, the court rejected a challenge to § 922(g)(1), holding that legislatures have the authority to disarm those who deviate from legal norms, even if done so in a non-violent manner. The court concluded that the government could constitutionally ban firearm possession solely due to felony status as it demonstrates a general failure to comply with the law.

The Sixth Circuit

The Sixth Circuit in United States v. Goins, 118 F.4th 794 (6th Cir. 2024), held that § 922(g)(1) can constitutionally apply to individuals on probation for driving under the influence as consistent with historical practices. The court held that those under criminal supervision as a probationary period lacked the full rights of law-abiding citizens. The Sixth Circuit took on an intermediate approach which focuses more on the defendant’s criminal supervision status rather than violence or civic virtue.

The Tenth Circuit

The Tenth Circuit in Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025), held that § 922(g)(1) can constitutionally apply to nonviolent felons on the grounds that tradition shows the disarming of individuals that demonstrate a lack of law-abidingness which in this case resulted from bank fraud. It drew on founding-era practices which restricted rights for oath breakers and those who engaged in deception ultimately concluding that nonviolent fraud offenses could justify disarmament.

The Third Circuit

The Third Circuit was the only circuit court to strike down the statute when applied to nonviolent offenders. In Range v. AG United States, 69 F.4th 96 (3d Cir. 2023), the court held that § 922(g)(1) violated the Second Amendment when applied to an individual convicted of welfare fraud. Historical records showed that founding-era disarmament practices only targeted dangerous individuals who were rebels, insurgents, or anyone who posed actual immediate threats to the community. Anything broader was rejected and insufficiently tied to historical evidence so given the Third Circuit’s encounter with a nonviolent offense, § 922(g)(1) would not be constitutionally applied. 

Looking Forward

The future of laws regarding firearm possession by felons will depend on how courts interpret the historical tradition test provided by Bruen. As challenges continue, judges may have to decide whether the Second Amendment protects those with nonviolent convictions or whether dangerousness alone can be what leads to disarmament.

Going forward, courts will likely continue to divide themselves into three approaches as reflected in the current circuit split. Some courts may adopt a dangerousness-based framework that allows disarmament only for individuals whose past conduct shows a clear threat to public safety. Other circuits may continue to rely on broader concepts of law abidingness and civic trustworthiness treating felony status alone as sufficient cause for disarmament. Lastly, some circuits will require specific historical analogues and debate whether modern offenses have similar founding era connections before allowing disarmament.

If the Supreme Court eventually decides this issue, the decision will redefine the scope of the Second Amendment and set out how far Congress may go in restricting gun ownership based on criminal history. Until this is done, the constitutionality of felons possessing firearms will be unsettled with varying standards across federal circuits leading to outcomes of as applied challenges depending heavily on where a case is brought.

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