*Jacob Rabinovich
I. Introduction
On June 21, 2024, the Supreme Court of the United States ruled that alleged domestic abusers may be disarmed if the court considers them a credible threat against another person’s physical safety.[1] The Supreme Court’s ruling affirmed the federal government’s authority to restrict firearm possession under the Bruen standard that all firearm regulations must be consistent with the United States’ history and tradition of firearm regulation.[2] The 2024 decision opened the door for the federal circuits to begin interpreting Second Amendment regulations as they see fit, with particular regard to whether nonviolent felons could possess firearms.[3]
In 2020 the Supreme Court of the United States, in New York State Rifle & Pistol Association, Inc. v. Bruen, established a new standard for evaluating and interpreting firearms regulations.[4] Rather than maintaining the framework[5] developed after Heller[6] in2008 and McDonald[7]in 2010, the Supreme Court held that “the government must demonstrate that [a] regulation is consistent with this Nation’s historical tradition of firearm regulation.”[8]
Although Chief Justice John Roberts, Justice Samuel Alito, and Justice Brett Kavanaugh affirmed in their concurring opinions to Bruen that the decision should not “‘cast doubt on longstanding prohibitions on the possession of firearms by felons,’”[9] a circuit split nonetheless arose regarding felon firearm possession.[10] Circuits have disagreed on whether restrictions on firearm possession by nonviolent felons[11] violate the Second Amendment.[12] Additionally, Bruen’s new standard for firearm regulation led to varied outcomes across the circuits in Second Amendment challenges.[13]
II. The Circuit Split Immediately Following Bruen
Rather than engaging with the Bruen standard, the Seventh, Eighth, Tenth, and Eleventh Circuits have upheld the constitutionality of Second Amendment regulations under the pre-Bruen precedent.[14] Thus, relying on Heller’s “‘presumptively lawful’ language,’” these circuits summarily denied appeals based upon challenges to the Second Amendment.[15]
Conversely, in United States v. Duarte, the Ninth Circuit applied the Bruen standard, distinguishing Founding-era felonies from modern counterparts through their classifications and consequences.[16] The court’s historical analysis revealed that modern felonies cover a broader range of criminal acts with less severe consequences than those in the Founding era, which were fewer in number and often carried the potential for execution.[17] Therefore, the Ninth Circuit ruled a blanket prohibition on firearm possession by felons was unjustified as applied to nonviolent offenders.[18]
III. Rahimi and its Effects on the Circuit Split
Shortly after the Ninth Circuit’s decision, the Supreme Court held in United States v. Rahimi that Bruen precludes gun ownership for violent felons or individuals who represent “‘a credible threat to the physical safety of another.’”[19] Bruen allowed circuits, like the Ninth, to decide whether that meant nonviolent felons could possess firearms.[20] Although Rahimi did not modify Bruen’s framework or provide new guidance, the Supreme Court granted, vacated, and remanded pending Second Amendment challenges and “instruct[ed] the lower courts to” review them “in light of Rahimi.”[21]. Despite Rahimi’s lack of substantive alterations to the Second Amendment landscape, its procedural impact caused an upheaval within federal circuits.[22] Consequently, decisions like the Ninth Circuit’s Duarte that permitted nonviolent felons to possess firearms were vacated,[23] leaving the circuit split unresolved and exacerbated.[24]
Most recently, the Fifth and Sixth Circuits reviewed Second Amendment challenges under the Rahimi analysis, focusing on the facial constitutionality of certain firearm regulations.[25] On August 23, 2024, the Sixth Circuit, in United States v. Williams, held that the challenged federal regulation was “constitutional on its face and as applied to dangerous people.”[26] The Sixth Circuit then found that convicted felon Mr. Erik Williams failed to demonstrate he was not a dangerous person.[27]
Soon after, on August 28, 2024, the Fifth Circuit in United States v. Connelly addressed whether disarming a sober individual based on past marijuana use—without current intoxication—violated the person’s Second Amendment rights, consistent with Bruen and Rahimi.[28] The Fifth Circuit found a number of federal firearm regulations facially constitutional but rejected their application to appellee Paola Connelly, protecting her Second Amendment right.[29] Without clear guidance from the Supreme Court or amendments from Congress, circuits have been left to determine whether felons, violent or not, may possess firearms based upon their own interpretations of this nation’s history and tradition of firearm regulations.
IV. Conclusion
Following Rahimi, the Supreme Court’s docket currently lacks any Second Amendment challenges.[30] Due to the Supreme Court granting, vacating, and remanding pending Second Amendment challenges in Rahimi, circuits will likely continue issuing scattershot rulings as the Second Amendment regulatory landscape evolves following the blast from Bruen and Rahimi. Alternatively, Congress may resolve the circuit split by expanding Second Amendment protections to nonviolent felons and other nonviolent individuals.
*Jacob Rabinovich is a second-year student at the University of Baltimore School of Law, where he is a Staff Editor for Volume 54 of Law Review, a Legal Writing Fellow, a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society, and an Invitee for the Byron Warnken Moot Court Competition. Last summer, Jacob served as a law clerk at the Law Office of Posner & Cord where he has continued his service as an extern in the fall semester. In May of 2025, Jacob is excited to join Davis, Agnor, Rapaport & Skalny as a Summer Associate.
[1] See United States v. Rahimi, 144 S. Ct. 1889 (2024).
[2] See Josh Gerstein, Alleged domestic abusers can’t own guns, Supreme Court rules, Politico (June 21, 2024, 11:13 AM), https://www.politico.com/news/2024/06/21/alleged-domestic-abusers-cant-own-guns-supreme-court-rules-00164412; Rahimi, 144 S. Ct. 1889 (2024).
[3] See infra Section III.
[4] See New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).
[5] See, e.g., United States v. Williams, 113 F.4th 637, 643 (6th Cir. 2024) (explaining the two-step framework as first inquiring “whether the challenged regulation burdens conduct that historically fell within the scope” of the Second Amendment and, if so, whether the regulation’s ends justified the means.).
[6] See District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
[7] See McDonald v. City of Chicago, 561 U.S. 742 (2010).
[8] Bruen, 597 U.S. at 17.
[9] Id. at 81 (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)).
[10] See Dave S. Sidhu, Courts Disagree as to Whether the Federal Felon-in-Possession Firearm Prohibition Violates the Second Amendment 1 (Congressional Research Service, 2024).
[11] The Court defines nonviolent felons as felons without a past record of being physically violent or a potential of being a credible threat to another person’s physical safety. See contra Rahimi, 144 S. Ct 1889 at 1901–02. See also Williams, 113 F.4th at 657–68.
[12] See Sidhu supra note 10, at 1 and accompanying text; United States v. Duarte, 108 F.4th 786, 787 (9th Cir. 2024) (Vandyke, J., dissenting).
[13] See discussion infra Sections II, III.
[14] See Sidhu supra note 10, at 4 and accompanying text; Duarte, 108 F.4th at 787 (Vandyke, J., dissenting) (citations omitted).
[15] See Williams, 113 F.4th at 644; See, e.g., United States v. Dubois, 94 F.4th 1284, 1291–92 (11th Cir. Mar. 5, 2024).
[16] See United States v. Duarte, 101 F.4th 657, 689–91 (9th Cir. 2024) (finding that nonviolent felons would not have received the grave consequences of committing a felony in the Founding-era, and thus, should be considered one of “the people” protected by the Second Amendment.). Edvard Pettersson, Ninth Circuit finds that convicted felons also have Second Amendment rights, Courthouse News Service (May 9, 2024), https://www.courthousenews.com/ninth-circuit-finds-that-convicted-felons-also-have-second-amendment-rights/ (“In the case of felonies that in the 18th and 19th centuries were traditionally punished with death, forfeiture of the offender’s estate or a life sentence, Bea said, we might ‘venture to assume it settled that these offenses were of a kind the Founding generation thought serious enough to warrant the permanent loss of the offender’s Second Amendment right.’”).
[17] See Duarte, 101 F.4th at 689–91; Pettersson, supra note 16 and accompanying text.
[18] See Duarte, 101 F.4th at 691.
[19] Rahimi, 144 S. Ct 1889 at 1901–02.
[20] See, e.g., Duarte, 101 F.4th 657.
[21] Duarte, 108 F.4th at 787–88 (Vandyke, J., dissenting).
[22] See, e.g., Duarte, 108 F.4th 786.
[23] See, e.g., id.
[24] See, e.g., Mike Vilensky, Federal Ban on Felons Having a Gun Faces Appeals Court Scrutiny, Bloomberg Law (July 23, 2024, 12:55 PM), https://news.bloomberglaw.com/litigation/federal-ban-on-felons-having-a-gun-faces-appeals-court-scrutiny.
[25] See United States v. Williams, 113 F.4th 637 (6th Cir 2024); United States v. Connelly, No. 23-50312 2024 WL 3963874 (5th Cir. Aug. 28, 2024).
[26] Williams, 113 F.4th at 662–63.
[27] See Annelise Gilbert, Sixth Circuit Upholds Federal Ban on Felons Having a Gun Bloomberg Law (Aug. 23, 2024, 8:48 PM), https://news.bloomberglaw.com/litigation/sixth-circuit-upholds-federal-ban-on-felons-having-a-gun.
[28] Jordan Rubin, 5th Circuit sides with nonviolent marijuana user in Second Amendment appeal, MSNBC (Aug. 29, 2024, 1:23 PM), https://www.msnbc.com/deadline-white-house/deadline-legal-blog/5th-circuit-nonviolent-marijuana-user-second-amendment-rcna168773.
[29] See Connelly, 2024 WL 3963874 at *1, *3, *10; see supra note 25 and accompanying text.
[30] See United States v. Duarte, 108 F.4th 786, 788 (9th Cir. 2024) (Vandyke, J., dissenting).
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