Felon in Possession of a Firearm: The "Bruen Challenge"
A "Bruen challenge" offers a novel constitutional defense against federal felon-in-possession firearm charges under 18 U.S.C. § 922(g)(1), arguing the law is inconsistent with the nation's historical tradition of firearm regulation.
Put simply, if you have a prior felony conviction, federal law imposes a lifetime ban on your ability to possess a firearm.
However, a recent Supreme Court landmark decision has created a unique opportunity to challenge this strict prohibition in court.
By challenging the historical basis of this law, defendants have a new avenue to fight severe federal charges.
If you or a loved one is facing a federal firearm charge, it is critical to explore every possible defense from the moment of your first contact with law enforcement. Contact Eisner Gorin, LLP at (818) 781-1570 or visit our contact page.
Can a Convicted Felon Legally Possess a Firearm?
As the law is currently written, no. Under 18 U.S.C. § 922(g)(1), it is a federal crime for anyone convicted of an offense punishable by more than one year in prison (i.e., a felony) to possess a firearm or ammunition.
Essentially, this statute acts as a blanket ban that strips individuals with felony convictions of their Second Amendment rights.
To understand the significance of this statute, we must look at how broadly it applies. The law does not distinguish between violent and non-violent felonies.
Whether you were convicted of armed robbery, wire fraud, or simple drug possession, 18 U.S.C. § 922(g)(1) applies equally.
A conviction for violating this statute can result in up to 15 years in federal prison, substantial fines, and a prolonged period of supervised release.
What is a "Bruen Challenge" in a Felon-in-Possession Case?
A Bruen Challenge is a legal argument that challenges the validity of felony firearm possession charges on historical grounds.
In a felon-in-possession case, the Bruen challenge asserts that § 922(g)(1) is unconstitutional because there is no historical tradition from the Founding era that supports permanently disarming all citizens with felony convictions, especially nonviolent ones. This defense strategy challenges the statute's core validity.
Background of the Bruen Challenge
The Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen fundamentally changed how courts assess gun control laws.
This ruling requires the government to prove that any modern firearm regulation is consistent with the nation's historical tradition of firearm regulation, thereby establishing a new, stricter standard.
Before Bruen , courts used a "means-end scrutiny" test, balancing the government's interest in public safety against an individual's Second Amendment rights.
Bruen replaced this with a "text-and-history test." Under this new test, if the Second Amendment's plain text covers the conduct in question, the government must demonstrate that the law aligns with historical precedents from the Founding era (late 1700s).
In short, if there is no similar historical regulation, the modern law may be unconstitutional. This shift allows defendants to argue that broad bans, such as the felon-in-possession law, lack a sufficient historical basis.
How We Structure a Bruen Challenge
There are a few key elements our attorneys utilize when building a Bruen challenge:
- "The People": The Second Amendment protects the right of "the people" to keep and bear arms. The defense argues that individuals with felony convictions are still part of "the people" and retain constitutional protections.
- Lack of Historical Analogue: The central pillar of the challenge is historical. We argue that the government cannot point to laws from the 18th century that are "relevantly similar" to a blanket ban on all felons possessing firearms. While the Founders may have disarmed active insurrectionists, they did not categorically disarm everyone who committed a crime.
- Unconstitutionality: Because the government cannot meet its burden under the text-and-history test, the statute is argued to be unconstitutional, either entirely or as it applies to the specific defendant.
Are Bruen Challenges Successful in the Courts?
Yes, but only to a point. Appeals courts have split over how Bruen applies.
Courts currently interpret Bruen challenges into two categories: facial challenges, which argue the law is always unconstitutional, and as-applied challenges, which argue the law is unconstitutional based on the specific facts of a defendant's past conviction. The latter approach has seen significantly more success in the federal courts.
Facial Challenges vs. As-Applied Challenges
A facial challenge asserts that § 922(g)(1) is unconstitutional in every possible application. Courts have almost universally rejected this broad approach, maintaining that the government has a historical basis for disarming genuinely dangerous individuals.
An as-applied challenge is a highly targeted argument. It claims that while the law might be constitutional for violent offenders, it is unconstitutional as it is being applied to this specific defendant.
To illustrate: if a defendant is charged under § 922(g)(1) because they possessed a hunting rifle, but their underlying felony was a non-violent tax evasion conviction from twenty years ago, an attorney would argue that permanently disarming a non-violent taxpayer is entirely inconsistent with Founding-era regulations.
Relevant Court Cases
Case law surrounding these challenges is evolving rapidly. Two major cases highlight this shift:
- Range v. Attorney General: In this significant Third Circuit case, an "as-applied" challenge was successful for a defendant with a nonviolent misdemeanor conviction (punishable by over a year). The court found no historical tradition to permanently disarm someone for a non-violent financial crime.
- United States v. Rahimi: In this 2024 Supreme Court case, the Court upheld a firearm ban for individuals under domestic violence restraining orders. While it didn't address felons directly, it reinforced the government's ability to disarm "dangerous" individuals. Prosecutors now rely heavily on Rahimi to argue that felons are inherently dangerous, making a nuanced defense even more critical.
Related Federal Firearm and Weapons Offenses
Felon-in-possession cases under 18 U.S.C. § 922(g)(1) are often charged alongside other federal firearm offenses. Prosecutors frequently add these related charges during an investigation involving guns, ammunition, or violent conduct.
Understanding these related offenses is important because they can significantly increase potential penalties.
18 U.S.C. § 924(c) – Using a Firearm During a Crime of Violence
This federal statute makes it a crime to use, carry, or possess a firearm during and in relation to a violent crime or drug trafficking offense. A conviction carries mandatory minimum prison sentences that must run consecutively to any other sentence.
18 U.S.C. § 922(a)(1) – Unlicensed Firearms Dealing
Federal law requires individuals who regularly sell firearms for profit to obtain a federal firearms license (FFL). Selling guns without the proper license can result in federal criminal charges and significant penalties.
18 U.S.C. § 922(a)(6) – False Statements in Firearm Transactions
Providing false information when purchasing a firearm from a licensed dealer is a federal offense. This often involves so-called “straw purchases,” where someone buys a firearm on behalf of another person who cannot legally possess one.
18 U.S.C. § 922(g)(9) – Firearm Possession After Domestic Violence Conviction
Federal law prohibits individuals convicted of certain domestic violence misdemeanors from possessing firearms or ammunition. Even a misdemeanor domestic violence conviction can result in a lifetime federal firearm prohibition.
18 U.S.C. § 922(k) – Possessing a Firearm With a Removed Serial Number
It is illegal under federal law to possess a firearm whose serial number has been altered, removed, or destroyed. These charges are often brought when law enforcement believes the firearm was intended to avoid tracing.
18 U.S.C. § 922(n) – Possession of a Firearm While Under Indictment
Federal law also prohibits individuals who are currently under indictment for a felony offense from shipping, transporting, or receiving firearms in interstate commerce.
18 U.S.C. § 371 – Conspiracy to Commit a Federal Firearm Offense
When two or more people agree to commit a federal firearm offense and take a step toward completing the plan, they may be charged with conspiracy. Conspiracy charges are commonly added in multi-defendant gun cases.
Frequently Asked Questions
Can all felons challenge the firearm ban under Bruen?
Not necessarily. Courts are more likely to consider challenges involving nonviolent offenses and older convictions.
Has the Supreme Court ruled that the felon-in-possession law is unconstitutional?
No. The Supreme Court has not invalidated the law, and it remains enforceable in most cases.
Are Bruen's challenges successful?
Some defendants have succeeded with as-applied challenges, but the law continues to evolve and results vary between federal circuits.
Can other defenses still apply?
Yes. Even if a constitutional challenge fails, traditional defenses—such as lack of possession or illegal searches—may still lead to dismissal or acquittal.
Why You Need a Skilled Federal Defense Team for a Bruen Challenge
Despite the recent changes in case law, the courts are not easily swayed. A Bruen challenge requires crafting a highly technical, historically researched argument that carefully distinguishes your specific background from the government's standard definitions of "dangerousness."
Success is not automatic, and these cases require specialized constitutional knowledge.
Our firm handles these complex issues through a meticulous, strategic process. Here is how we build a defense:
- Crafting a Nuanced Historical Argument: We dive deep into historical statutes from the 1700s and 1800s to demonstrate that your specific type of prior conviction would not have resulted in permanent disarmament at the nation's founding.
- Distinguishing Your Case: We meticulously analyze the facts of your prior conviction. We work to frame your past as nonviolent, arguing that you do not fit the historical archetype of a "dangerous" individual that the government can lawfully disarm under the Rahimi standard.
- Challenging Evidence and Procedure: Beyond the constitutional challenge, a good attorney will utilize traditional defenses. We scrutinize whether law enforcement had probable cause for the search that uncovered the firearm, whether you actually had "knowing possession" of the weapon, and whether your Miranda rights were violated during the investigation.
- Navigating Evolving Case Law: Because different federal circuits are reaching different conclusions, our firm stays constantly updated on the latest appellate decisions to build the strongest possible argument based on current precedents.
Our structure is optimized for cases where exposure is serious, complexity is high, or collateral damage is severe. In complex or high-exposure cases, clients can expect a multi-lawyer review and a structured second opinion on strategy.
This team model ensures your defense is robust, thoroughly vetted, and ready for federal court. From your first contact with law enforcement through trial and potential post-conviction appeals, we guide you every step of the way.
Hypothetical Case Study: The "Non-Violent" As-Applied Challenge
Consider the case of "Robert," who was charged under 18 U.S.C. § 922(g)(1) after federal agents discovered a firearm in his home during a routine check. Robert's predicate felony was a 15-year-old conviction for conspiracy to commit wire fraud —a non-violent financial crime.
Under the pre- Bruen "means-end" scrutiny, Robert would have had almost no defense. However, the legal team at Eisner Gorin, LLP launched an as-applied Bruen challenge, arguing that Robert remains one of "the people" protected by the Second Amendment.
Our defense focused on the lack of a historical analogue. We conducted an exhaustive review of 18th-century "disarmament" laws, demonstrating that at the time of the Founding, permanent disarmament was reserved for individuals perceived as threats to the state's safety (such as active insurrectionists), not for those convicted of non-violent commercial crimes.
By distinguishing Robert's background from the "dangerousness" standard established in United States v. Rahimi, we successfully argued that the lifetime ban was unconstitutional as applied to his specific history, resulting in the dismissal of the federal indictment.
Contact a Federal Defense Lawyer
In summary, while the Supreme Court's Bruen decision has created an opportunity to challenge federal felon-in-possession charges on constitutional grounds, doing so successfully requires a highly skilled legal team.
The text-and-history test shifts the burden to the government to prove that disarming you is consistent with the nation's founding traditions.
However, success depends heavily on a carefully crafted, historically based legal argument tailored to the specific facts of your case, particularly emphasizing the non-violent nature of any prior convictions.
Do not assume a conviction is inevitable just because you have a prior record. At Eisner Gorin, LLP, our federal defense lawyers can handle these complex constitutional arguments and negotiate effectively on your behalf.
Schedule your confidential case review today by calling (818) 781-1570 or using our contact page.