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July 14, 2023

Are many district courts ordering Second Amendment briefing in felon-in-possession cases (and are charges and sentencings being impacted)?

The question in the title of this post came to mind upon seeing this new order in US v. Sims, a federal case from Illinois in which the district judge has set a briefing schedule to address an elaborate set of questions in response to a defendant's motion to dismiss a federal firearms charge.  These questions were prompted and framed by the Seventh Circuit's recent remand ruling in Atkinson v. Garland, No. 22-1557 (7th Cir. June 20, 2023) (available here).  I discussed Atkinson in this post last month, noting that the dissenting opinion in that case expressed great concern with "saddling [a district court] with a Ph.D.-level historical inquiry" in order to address a Bruen-based Second Amendment challenge to 18 USC § 922(g)(1), the federal criminal prohibition on felons possessing firearms.

As discussed in a few recent posts here and here, the Supreme Court next year will be addressing a Second Amendment challenge to a different section of federal firearm possession criminalization in US v. Rahimi.  But, according to this 2022 US Sentencing Commission report about federal firearm prosecutions and sentencings, it seems that maybe only a few hundred federal criminal  prosecutions are brought each year under § 922(g)(8), the provision at issue in Rahimi, whereas perhaps more than 6000 federal criminal  prosecutions are brought each year under § 922(g)(1).  We likely will need to wait nearly a year for a SCOTUS decision in Rahimi, and there is no certainty that such a decision will conclusively resolve federal challenges to the broad federal felon-in-possession prohibition.  Federal district courts, which historically have sentenced hundreds of felon-in-possession cases each and every month, likely cannot readily defer resolution of Second Amendment challenges until getting additional guidance from SCOTUS.

Of course, at least one circuit (the Eighth) has seemingly categorically rejected broad constitutional challenges to § 922(g)(1), while another circuit (the Third) has held that some applications of § 922(g)(1) are unconstitutional.  This leads me to assume district courts in the Eight Circuit can readily dismiss any Second Amendment challenge to 18 USC § 922(g)(1), while district courts in the Third Circuit surely need to carefully sort through such claims.  As the Sims order reveals, district courts in the Seventh Circuit may feel obligated to seek elaborate briefing.  And there is been at least one high-profile ruling from a district court in the Fifth Circuit (where Rahimi came from) which declares § 922(g)(1) unconstitutional.

In addition to wondering what district courts around the country are doing, I also wonder whether and how federal prosecutorial charging and bargaining practices are being impacted by all the constitutional uncertainty produced by Bruen.  Are federal prosecutors, at least in some districts, now less likely to bring § 922(g)(1) charges (at least in cases involving nonviolent priors)?  Are federal prosecutors, at least in some districts, now more likely to provide more favorable plea terms in these cases because of the constitutional uncertainty?  (I have speculated that Hunter Biden's plea deal may have been influenced by post-Bruen questions about yet another provision of 922(g).)

Speaking of plea deals, I especially wonder if there maybe be (significant?) sentencing echoes from all this constitutional churn.  Notably, felon-in-possession cases are the hook for the severe 15-year mandatory minimum prison term of the Armed Career Criminal Act (ACCA).  Might some prosecutors agree not to seek ACCA's severe term in exchange for a defendant's waiving of constitutional challenges?  In less aggravated cases, might prosecutors agree to recommend a less severe prison term in order to avoid a Bruen brouhaha?  

I could go on and on speculating about all the federal criminal ripples from Bruen, but I am hoping that in the comments some practitioners might be able to report on what's actually going on in district courts these days with respect to thousands of pending felon-in-possession cases.

Some (of many) prior recent related posts:

July 14, 2023 at 09:51 AM | Permalink


If I'm a district judge, I'm going to apply the long-settled rule that enactments of Congress are presumed to be constitutional until authoritatively declared otherwise. Thus district judges anywhere outside the Third Circuit will conduct business as usual. In the Third Circuit,they need to think more.

If I'm in the USAO (where I was for years), the current debate is not going to make any difference. Until the AG tells me to change course, I too will be doing business as usual. Nor would it make any difference in my sentencing recommendations. If the FIP statute is in fact constitutional (as I must presume it is -- AUSAs aren't Congress or SCOTUS), sentencing recommendations should be crafted the way they always were. If the FIP statute is unconstitutional, there can't be any sentence (or any prosecution) at all.

There is no middle ground to have a "light" sentencing recommendation. If the defendant's lawyer tells me he'll appeal if I don't agree to a watered-down sentencing recommendation, I'll tell him: Fine, go ahead. I need clarity at least as much as you do.

Posted by: Bill Otis | Jul 14, 2023 11:36:12 AM


These cases are all over the place and it is varying widely from district to district. Some districts are refusing to give conditional pleas because they don't want this issue going up.

Others are looking to make structural changes to the plea bargains based on avoiding Bruen challenges (ACCA being frowned upon by many offices these days).

Posted by: Zachary Newland | Jul 17, 2023 12:14:21 PM


One thing that AUSAs may do to hedge against a possible extension of Bruen to 922(g) is, in any case where the gun was used illegally in furtherance of a violent (or drug) offense that violates federal law, charge that other offense, too, and make the defendant eat the other charge.

Da Man

Posted by: Da Man | Jul 18, 2023 12:01:35 PM

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