The Second Amendment Blues

[By Nicole Kaplan]

You may be wondering about the state of Second Amendment litigation involving 18 U.S.C. § 922(g)(1) — the ban on possession of guns by those with a felony conviction. Well, you’re in good company. The whole country is wondering!

Last year, federal defense attorneys from several circuits AND the U.S. government asked the Supreme Court to take a case and tell us, in the words of the immortal Marvin Gaye, “What’s Going On?” Unfortunately, the justices were NSYNC with each other and said, “Bye Bye Bye.” They sent every case back to their respective circuits for reconsideration after their decision in United States v. Rahimi, 602 U.S. 680 (2024) (upholding federal law prohibiting people with domestic violence restraining orders from possessing firearms, 18 U.S.C. § 922(g)(8)), including the accidental lead Eleventh Circuit case, United States v. Dubois I, 94 F.4th 1284 (11th Cir. 2024).

In United States v. Dubois II, 139 F.4th 887 (11th Cir. 2025), the Eleventh Circuit revisited its old precedent in United States v. Rozier, 598 F.3d 768 (11th Cir. 2010), and said, “I’m Stuck on You”. Who knew Judge Bill Pryor was such a Lionel Ritchie fan? So, Mr. Dubois is headed for an en banc petition and then a petition for certiorari (both of which will be penned by yours truly). Let’s hope the Supreme Court doesn’t “Spin [him] right round, baby right round” but instead gives us some clear guidance on the parameters of viable as-applied challenges. If you have a § 922(g)(1) case and are wondering if a challenge is viable for your client, “Call me, maybe!