The US Department of Justice (DOJ) asked the US Supreme Court to clarify whether 18 U.S.C. 922(g)(1) can constitutionally prohibit both violent and non-violent offenders equally from owning guns in light of the Second Amendment, which guarantees the right to keep and bear arms.

The current situation arises out of numerous petitions which question the constitutional validity of 18 U.S.C. 922(g)(1). The section provides that possessing any firearm or ammunition is unlawful if the person has been convicted of a crime punishable by imprisonment for a term exceeding one year. The relevant brief highlights that the current legal opinion on the matter is divided and thus is inconsistently applied throughout the district and appeal courts. While some courts have held that a restriction on possession of firearms by convicted felons is consistent with the Second Amendment, others have held it to be inconsistent.

The issue is particularly relevant in light of the recent decision in United States v. Rahimi, wherein the Supreme Court held that “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment,” therefore upholding 18 U.S.C. 922(g)(9), which restricts possession of firearms by anyone “who has been convicted in any court of a misdemeanour crime of domestic violence.” This was added to the Code by way of an amendment in 1996.

The DOJ emphasized the importance of deciding the constitutionality of the law, given the inconsistent interpretation and application at the moment. Further, it was stated that “[o]ut of the approximately 64,000 criminal cases reported to the Sentencing Commission in Fiscal Year 2022, more than 7600 involved convictions under Section 922(g)(1)…[t]hose convictions accounted for nearly 12 percent of all federal criminal cases.”

The matter is intimately connected to public safety, as a strict restraint of ownership of arms by people with a history of criminality could directly mitigate the occurrences of gun violence in America.

The DOJ urged the court to do a plenary review of the matter across a range of felonies to account for the large breadth of application of the law. Alternatively, it urged the court to issue a “grant, vacate and remand” (GVR) order.