Why It Matters
Federal appeals courts remain divided over whether the felon-in-possession law, 18 U.S.C. § 922(g)(1), violates the Second Amendment, according to a new Congressional Research Service (CRS) report.
Six circuits hold the statute categorically constitutional; four hold it may be unconstitutional as applied to defendants convicted of nonviolent felonies. Congress now faces a choice: amend § 922(g)(1) to align with one of the circuit positions, or leave further resolution to the courts.
The Big Picture
The Supreme Court denied review in United States v. Hembree on Oct. 5, leaving the split intact.
The split has persisted through four Supreme Court Second Amendment rulings: District of Columbia v. Heller (2008), New York State Rifle & Pistol Association, Inc. v. Bruen (2022), United States v. Rahimi (2024) and United States v. Hemani (2026). None of these directly decided § 922(g)(1)'s constitutionality. Heller called felon-disarmament prohibitions "presumptively lawful," and Rahimi quoted that language while rejecting a facial challenge to § 922(g)(8). Hemani struck down a prosecution under § 922(g)(3) but repeated Heller's disclaimer about § 922(g)(1).
The Third Circuit held that § 922(g)(1) could not constitutionally be applied to a defendant convicted of food stamp fraud, calling its initial ruling narrow and applicable only to that defendant, and a later panel on remand again held the statute could not be applied to him.
The Fifth Circuit takes a case-by-case approach, upholding § 922(g)(1) for defendants convicted of inherently violent offenses but striking it down where the predicate felony was methamphetamine possession or failure to pay child support.
Separately, the Fifth Circuit ordered en banc rehearing on July 20 in United States v. Squire to consider whether § 922(g)(1) is facially consistent with the Commerce Clause. The Department of Justice had sought Supreme Court review in Hembree, and the Court denied that petition at the start of its October 2026 Term.
The Bottom Line
The denial of certiorari in Hembree does not bar the Supreme Court from accepting a future petition on § 922(g)(1)'s constitutionality. The Fifth Circuit's en banc rehearing in Squire is scheduled for January 2027 and could produce a new ruling on the statute's facial validity.
Congress retains authority to amend the statute in response to or in anticipation of a ruling, with options ranging from codifying one circuit's approach to taking no action.
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