We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. 

DEMOCRATS SPLIT ON RESTORING FELON GUN RIGHTS

Jake Fogleman of The Reload, a weekly report on the politics of gun control, reported last weekend that the Dept of Justice’s proposal to reauthorize the long-dormant gun rights restoration process for people convicted of nonviolent felonies appears to be pitting federal and local Democrats against one another.

Last February, President Donald Trump ordered a review of federal gun policy. One of the first proposals to come from that review was a proposed rulemaking to let DOJ use 18 USC § 925 to restore gun rights, essentially waiving 18 USC § 922(g) for those people. The initial recipient of this administrative grace, even before the rulemaking began, was actor and Trump supporter Mel Gibson, disqualified from gun possession by a prior domestic violence conviction.

In the comment period just ended, 16 Democratic state attorneys general – including those representing liberal bastions like California, Hawaii, Illinois, Connecticut and New Jersey – submitted a letter supporting the proposal (subject to what The Reload called “numerous caveats… intended to ensure that no one truly dangerous is able to make it through the process”). But their letter was surprisingly sympathetic to the resurrection of the process.

“While there is no constitutional requirement that mandates any particular form of firearms rights restoration by states or the federal government, as a policy matter, we believe that our residents’ lives should not be defined by the worst mistakes of their pasts,” the letter said.

On the other hand, six Democratic senators and representatives filed comments arguing that the proposed rule is an unlawful exercise of executive power being done to “help violent criminals regain firearms.”

“Given the pervasiveness of gun violence in our nation, this Administration should not be circumventing Congress’s authority to prioritize restoring firearm privileges to individuals convicted of serious or violent crimes,” the Congressional letter said. “Our country is plagued by an epidemic of gun violence.”

The Reload suggested that “part of the driving force behind the rift, at least for those who oppose the new process, [may be] over who is pursuing the new federal policy. Democratic officials, particularly those in Congress, have been under intense pressure from their constituents to demonstrate their resistance to the Trump Administration’s aggressive executive actions in its second term. It’s possible that, under different political circumstances, the lawmakers now vocally opposed to the move might have been more amenable to the idea… In an era in which the Democratic coalition has largely homogenized around a set of hardline gun restrictions, and in which the question of gun rights for felons has primarily been confined to the courts, it is notable to see new differences of opinion on the question emerge in the political arena.”

No doubt, having a rational, consistent means of restoring gun rights to people subject to 922(g) is a good idea. My concern, however, is that adoption of such a plan may make DOJ unwilling to press for a Supreme Court resolution on the constitutionality of 18 USC § 922(g)(1) as applied to nonviolent felons. DOJ already refused to seek certiorari on Range v. Bondi, the 3^rd Circuit en banc decision that stands as the best case for limiting § 922(g)(1). That case now binds courts in Pennsylvania, New Jersey and Delaware, but without a SCOTUS decision, it lacks nationwide applicability and, perhaps more important, does not support a 28 USC § 2244 motion to bring a second or successive § 2255 motion.

That procedural fact leaves thousands of prisoners unable to challenge the constitutionality of their convictions in the post-Bruen world.

The Reload, Analysis: Is Rights Restoration for Convicts a New Dividing Line on Guns for Democrats? (June 29, 2025)

DOJ, Withdrawing the Attorney General’s Delegation of Authority (March 20, 2025)

Letter from 16 State Attorneys General (June 18, 2025)

Letter from Rep Rosa DeLauro et al (June 18, 2025)

 – Thomas L. Root