The dispute centers on a federal statute that bars firearm possession for individuals convicted of nonviolent felonies.
Eleven years ago in Colorado, Joseph Johnson was found guilty of unauthorized marijuana cultivation, a conviction that carried only probation. Yet because his offense could have been punished by more than a year behind bars, it activated a federal provision that makes firearm ownership illegal for people with such records, effectively turning it into a felony. In 2025, following a traffic stop and a welfare check in Oklahoma that revealed Johnson owned a firearm, he ultimately pleaded guilty to two counts of 18 U.S.C. 922(g)(1) and received a twelve‑month federal sentence.
Earlier this spring, the U.S. Court of Appeals for the Tenth Circuit affirmed Johnson’s conviction, rejecting his claim that it violated the Second Amendment. Johnson has since petitioned the Supreme Court to overturn that ruling by permitting as‑applied challenges to Section 922(g)(1). The petition, slated for review at this Friday’s Supreme Court conference, has drawn support from the Cato Institute and three major gun‑rights groups, which argue that the Second Amendment does not authorize the government to disarm nonviolent felons like Johnson on a blanket basis.
The Supreme Court frequently receives a flood of petitions of this type and often declines to hear them. However, its June decision in United States v. Hemani suggests it may be more inclined to act this term. In Hemani, 18 U.S.C. 922(g)(3) made it a crime for an “unlawful user” of any controlled substance to possess or receive a firearm. The justices unanimously rejected prosecuting a Texas cannabis user under Section 922(g)(3), saying the government cannot disarm people or charge them with illegal gun possession solely because they use marijuana.
In the wake of Hemani, lower courts are weighing what additional evidence is needed to sustain a conviction under Section 922(g)(3). But without Supreme Court guidance on Section 922(g)(1), appellate courts are split on whether the Second Amendment poses any barrier to prosecutions under that provision. While three circuits have allowed individuals with nonviolent felony records to challenge the law as applied to them, such challenges have been blocked in six circuits, including the 10th.
The 10th Circuit’s ruling in Johnson’s case did not surprise, given that the court previously rejected an as‑applied challenge to Section 922(g)(1) in the 2025 case Vincent v. Bondi. That decision involved Melynda Vincent, a Utah social worker who lost her gun rights due to a 2008 conviction for passing a bad check at a grocery store. Like Johnson, Vincent did not serve any time in prison, and her offense did not imply she posed a danger to public safety. But the 10th Circuit concluded that this did not matter.
When the Supreme Court overturned a local handgun ban in the landmark 2008 case District of Columbia v. Heller, the 10th Circuit observed, the majority stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” described in a footnote as “presumptively lawful regulatory measures.” The Court’s 2024 decision in United States v. Rahimi, which upheld a federal law disarming those under domestic violence restraining orders, echoed that phrasing. The 10th Circuit believed this foreclosed Second Amendment challenges to Section 922(g)(1), even by nonviolent offenders.
Not so, argues gun‑policy scholar Joseph G.S. Greenlee in a brief backing Johnson’s petition. The Supreme Court “has established that all firearm regulations must be justified by historical tradition, including the regulations that Heller labeled ‘presumptively lawful,’” Greenlee writes in the brief, filed last Thursday on behalf of the National Rifle Association, the Firearms Policy Coalition, and the Second Amendment Foundation.
When a law limits conduct within the Second Amendment’s “plain text,” the Court stated in the 2022 case New York State Rifle & Pistol Association v. Bruen that the government carries the burden of “demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” That rule aligns with the Court’s description of the “presumptively lawful regulatory measures” in Heller, which noted: “There will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.”
Notably, those “exceptions” included “laws prohibiting the carrying of firearms in sensitive places such as schools and government buildings.” Yet in Bruen, the Supreme Court rejected the argument that New York’s public‑possession restrictions could be justified under that heading, noting there is no historical basis for New York to effectively declare Manhattan a “sensitive place.”
That conclusion, Greenlee contends, shows that Heller’s reference to “longstanding prohibitions” does not shield Section 922(g)(1) from the Bruen test. And when you perform the analysis Bruen requires, he says, you find “there is no tradition that supports disarming peaceable persons.”
Greenlee surveys colonial gun regulations that targeted Black people, Native Americans, Catholics, Puritans, and Antinomians; Founding‑era measures aimed at loyalists and insurrectionists; and 19th‑century restrictions on gun possession by enslaved people, freedmen, “tramps,” rebels, intoxicated or mentally unsound individuals, and those who “threaten the physical safety of another.” The common thread, he argues, is a tradition of disarming people deemed dangerous to public safety or national security.
“America’s historical tradition of firearm regulation supports disarming only dangerous persons—disaffected individuals posing a threat to the government and people with a proven proclivity for violence,” Greenlee writes. “There is no tradition of disarming peaceable citizens.”
Historically, “nonviolent criminals—including nonviolent felons—who did not demonstrate a propensity for violence retained the ability to exercise their right to keep and bear arms,” Greenlee continues. “Indeed, some laws explicitly permitted or even required them to keep and bear arms.” After “completing their sentences,” offenders “had full access” to their Second Amendment rights, and “able-bodied males were required to keep and bear arms under the state and federal militia acts.” No one “was disarmed because the law he violated was classified as a felony.”
Cato Institute lawyers Matthew Cavedon and Laura Bondank emphasize the implications of the broader interpretation embedded in Section 922(g)(1). “The felony label,” they write, “which was once reserved for the gravest crimes, now covers a vast range of conduct with no connection to violence, and legislatures can expand it at will.” They add: “Treating that label as a proxy for danger would allow lawmakers to shrink the Second Amendment’s guarantee simply by drafting new felonies, a power to which no other enumerated right is subject.”
Vincent’s lawyers, who previously sought Supreme Court review of her case, point out that Section 922(g)(1) can be triggered by state offenses such as adultery, defacing a school building, “repeatedly sharing streaming websites’ passwords,” “temporarily using someone else’s car without their consent,” and “using a telephone to make a single anonymous call to annoy or embarrass.” They note that federal law “includes many felonies that involve no danger,” such as “knowingly and unlawfully exporting any fish or wildlife” or making an “unauthorized recording of a movie” in a theater.
“The number of felonies has increased exponentially since the Founding,” Cavedon and Bondank observe. “The category of felonies has outgrown its historical core and now encompasses a vast range of nondangerous conduct… Today, felonies reach well beyond ‘crimes like murder, assault, and rape’ to cover ‘an immense and diverse category’ of behavior, from Johnson’s marijuana cultivation to ‘selling pigs without a license in Massachusetts.’ Yet § 922(g)(1) treats the murderer, Johnson, and the unlicensed pig salesman the same: they both lose their right to keep and bear arms.”
That approach appears constitutionally questionable in light of Hemani, which rejected the government’s claim that people who use marijuana are ipso facto “unusually dangerous” and prone to commit “violent crime.” As the Court saw it, that categorical judgment was too sweeping, obscuring important distinctions relevant to assessing the threat a given defendant poses. “If the government cannot disarm every unlawful drug user without specific inquiry,” Cavedon and Bondank argue, “it cannot do so for everyone convicted of a felony, whatever the nature of the offense.”
