‘Danger’ Is the Key to 922(g) constitutionality, Two Circuits Say – Update for August 15, 2025

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A COUPLE OF 922(g) OPINIONS UNDERSCORE “DANGEROUSNESS”

Two decisions last week on the constitutionality of 18 USC § 922(g)(1) – the felon-in-possession statute – and § 922(g)(3) – the drug user-in-possession subsection – convicted the defendants but reflected the United States v. Rahimi trend of focusing on physical danger to the public instead of mere status.

In Louisiana, John Morgan had a prior state conviction for unlawful use of a gun arising from his participation in a drive-by shooting. When he was caught with a gun soon after serving two years in a state joint, he was convicted of being a felon-in-possession.

On appeal, John argued that § 922(g)(1) violated the 2^nd Amendment as applied to him. Last week, the 5^th Circuit disagreed, affirming his conviction.

Looking at colonial-era “going armed” laws, the Circuit ruled that the 2^nd Amendment permitted government to permanently disarm “individuals found to threaten the physical safety of another.” Each statute “restricts gun use to mitigate demonstrated threats of physical violence,” yet “does not broadly restrict arms use by the public generally.” Thus, “[t]he justification behind going armed laws, to ‘mitigate demonstrated threats of physical violence,’ supports a tradition of disarming individuals like Morgan pursuant to § 922(g)(1), whose underlying convictions stemmed from the… commission of violence with a firearm.”

The decision thus suggests that it is a felony conviction for the commission of a violent act, not just a felony conviction, that is needed for § 922(g)(1) to be constitutionally applied to a defendant.

Meanwhile, in the 6^th Circuit, a drunken Terrence VanOchten, who incidentally was also high on marijuana, was shooting at a propane tank in his backyard, located in a residential neighborhood. Deputies who arrived to disarm him found three pipe bombs as well as his AR-15. Convicted for the pipe bombs, Terry found his sentencing guidelines raised because he was a drug user in possession of a gun in violation of 18 USC § 922(g)(3).

Last week, the 6th Circuit affirmed his sentence. Terrence argued that sticking him with the Guidelines enhancement was wrong because § 922(g)(3) was applied to him unconstitutionally. Just like the 5^th Circuit, the 6^th bored in not on the fact that he drank booze and smoked pot, but rather because Terry was a “dangerous individual.” Relying on the Circuit’s decision in United States v. Williams, the Circuit said,

Williams held that 18 USC § 922(g)(1), a statutory companion to  § 922(g)(3)… is constitutional as applied to ‘dangerous individuals’… [B]ased upon historical analogues, Congress may use class-based legislation to disarm people it believes are dangerous, so long as members of that class have an opportunity to show they aren’t… And Congress had in fact done so in § 922(g)(1), disarming felons as a group because it judged them to be dangerous. Thus, we concluded, § 922(g)(1) is constitutional as it applies to ‘dangerous individuals.’

This case falls on the easy side of the line,” the 6^th ruled. “In assessing whether VanOchten is dangerous, we need only examine his criminal record… [H]e earned a state law conviction for his conduct on the day he was arrested by Michigan deputies. On that day, he was shooting a rifle in the direction of a propane tank in a residential neighborhood while drunk and high. As this event shows, he misused his gun in a way that could “have caused a major explosion,” injuring himself or harming the person or property of another. His misconduct posed ‘a significant threat of danger’ to himself and others.

United States v. Morgan, Case No 24-30561, 2025 U.S.App. LEXIS 19872 (5th Cir. Aug 6, 2025)

United States v. Vanochten, Case No 23-1901, 2025 U.S.App. LEXIS 20103 (6th Cir. Aug 8, 2025)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

~ Thomas Root