Herbert Gary v. United States

Since the Court issued its ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), frontline defense lawyers and prosecutors, along with district courts and courts of appeals, have grappled with how the holding applies to § 922(g)(1). Is the statute facially invalid? Is it subject to as-applied challenge? If so, how does that challenge work? Criminal defense lawyers and prosecutors have spent hours upon hours litigating these issues. District courts and appellate courts have expended massive amounts of time and energy ruling on these issues. Defense lawyers cannot stop raising the issue because this Court has not given us any final answers. Without answers from this Court, defense lawyers cannot tell clients that challenging the constitutionality of § 922(g)(1) is frivolous, even if the applicable court of appeals has rejected the argument. So, we must keep filing motions. We are stuck in purgatory, or ground hog day, or whatever metaphor strikes your fancy. Perhaps the Court needed to flesh out Bruen on lesser used subsections of § 922(g) before tackling subsection (g)(1). United States v. Rahimi, 602 U.S. 680 (2024) (§ 922(g)(8)); United States v. Hemani, 146 S. Ct. 1677 (2026) (§ 922(g)(3)). That’s understandable. But the time has come. We need an answer on § 922(g)(1) and we need it now. The Question Presented is: Whether 18 U.S.C. § 922(g)(1), the federal statute that prohibits anyone who has been convicted of “a crime punishable by imprisonment for a term exceeding one year” from possessing a firearm, violates the Second Amendment as applied to Petitioner, based solely on prior violent offenses?