Why It Matters

The Department of Justice is asking the Supreme Court to resolve a federal circuit split over whether the felon-in-possession ban violates the Second Amendment. The Fifth Circuit held that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to defendants convicted of nonviolent felonies, such as methamphetamine possession. A new Congressional Research Service report examines the constitutional stakes as the Trump administration's petition in United States v. Hembree moves toward potential Supreme Court review.

The Supreme Court has signaled interest in the case by allowing the defendant to respond to the DOJ petition rather than simply disposing of it. This procedural move suggests the justices may take up the case directly, despite the Court's recent decision in United States v. Hemani (2026) that struck down a separate firearms prohibition on drug users.

The Big Picture

The constitutional landscape shifted after the Supreme Court's 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which announced a history-centric test for evaluating Second Amendment challenges to firearms laws. In 2008, District of Columbia v. Heller had established an individual right to bear arms but called felon-in-possession bans "presumptively lawful."

Federal appeals courts now sharply disagree on whether § 922(g)(1) survives the Bruen test. The Fourth, Eighth, Tenth, and Eleventh Circuits uphold the ban categorically. The Third, Fifth, Sixth, and D.C. Circuits permit as-applied challenges, allowing courts to examine whether the ban applies unconstitutionally to specific defendants, particularly those convicted of nonviolent offenses. The Ninth Circuit has also found the ban unconstitutional as applied to certain defendants. The Supreme Court denied certiorari in dozens of related cases before June 2026, leaving uncertainty in place.

In Hemani, the Supreme Court examined 18 U.S.C. § 922(g)(3), which forbids unlawful users of controlled substances from possessing firearms. The Court found the government had presented insufficient historical support for applying this provision to someone who used marijuana occasionally. Importantly, the Court repeated Heller's disclaimer that the opinion should not be construed to cast doubt on the constitutionality of the felon-in-possession prohibition.

The Bottom Line

Congress will monitor how the Supreme Court responds to the DOJ petition in Hembree, which could result in a definitive ruling on whether § 922(g)(1) comports with the Second Amendment, as it retains authority to amend the statute at any time.

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