DOJ Seeks SCOTUS Guidance on Gun Rights for Felons

AP Photo/Marco Garcia, File

To say the Rahimi case didn't go our way is putting it mildly. It could have been worse, but it could have been a lot better.

Yet the truth of the matter is that there are a lot of people out there who are stripped of their gun rights via various means that probably shouldn't be. It's one thing when a career-armed robber is stripped. It's quite another when someone convicted of tax evasion is.


And, it seems that the Department of Justice has questions as to who should really be prohibited anyway. They're asking the Supreme Court for guidance on this.

US Solicitor General Elizabeth Prelogar filed a supplemental brief with the High Court on Monday to request that the Justices make the federal felony gun ban their next Second Amendment priority. Specifically, the brief asked for review in five separate appellate court cases dealing with the federal gun ban for felonies of varying severity. She argued such a move was necessary because the Court failed to address the issue in its latest Second Amendment decision.

“Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1) ‘s constitutionality,” the brief reads. “Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict.”

The DOJ’s brief is the earliest indication of the legal fallout from the Court’s decision in US v. Rahimi, which upheld the domestic violence restraining order gun ban. It suggests that the federal government is unsatisfied with the Court’s narrow ruling in that case. It is seeking further guidance from the Court that will help lower courts evaluate the extent to which certain felons retain gun rights, something federal circuit courts have been divided over since Bruen.

Instead of providing a sweeping re-evaluation of Bruen, the majority stuck closely to the specific contours of the case against defendant Zachary Rahimi.


DOJ’s request comes as the High Court considers which of its pending Second Amendment case petitions to grant. The brief’s request for expeditious review could sway the Justices to defer to the federal government’s wishes, as it has often done in past cases.


I can't tell you where the Court will fall on this, should they decide to take up the matter. I know where I would have thought they'd have fallen before Rahimi, but now? Not so much.

I can tell you where I think they should fall, and that's in the argument that if a person is considered safe enough to return to society, they're safe enough to be returned with all of their rights intact.

That's probably not a majority opinion by any stretch, especially among the justices, but a reasonable middle point would be with regard to non-violent felons or those who have been free and clear for a long period of time. 

At some point, the prohibition of felons being able to buy guns stops making any kind of sense, even for violent felonies. Sure, they broke the law, but reformed is reformed and we're not doing anyone any favors by continuing to treat such people as if they're still criminals.

The question is whether the Supreme Court will see it this way or if they'll basically allow the status quo to stand.

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