By Tanya Metaksa
What’s New—Why is SCOTUS after Bruen allowing the definition of 18 U.S.C. § 922(g)(1) to remain Circuit dependent?; California: On Sept. 26, Governor Gavin Newsom signed six more onerous bills; Two States implement anti-gun owner regulations: New Jersey and Virginia; The Trump DOJ fights back in Minnesota.
Why is SCOTUS after Bruen allowing the definition of 18 U.S.C. § 922(g)(1) to remain Circuit dependent?
Since Rahimi, the Supreme Court has handled challenges to 18 U.S.C. § 922(g)(1) by remanding rather than resolving them. The Court has issued no merits decision addressing either the statute’s facial constitutionality or the availability of as-applied Second Amendment challenges. Instead, on July 2, 2024, it granted certiorari, vacated, and remanded (GVR) a group of § 922(g)(1) cases—including Garland v. Range and Jackson v. United States—for further consideration in light of Rahimi. Those GVRs establish only that Rahimi may bear materially on the analysis; they do not establish what Rahimi requires.
This procedural course has left the central constitutional question unresolved. Rahimi upheld § 922(g)(8) where the defendant was subject to a court order containing a qualifying finding that he posed a credible threat to another person’s physical safety. Section 922(g)(1), by contrast, ordinarily imposes a permanent firearms disability based on conviction of a qualifying offense, without a separate present-dangerousness finding. The Court has not decided whether that difference is constitutionally dispositive, whether historical tradition supports categorical disarmament of all persons convicted of qualifying crimes, or whether the government must provide a more particularized historical justification in at least some nonviolent-offense cases.
Jackson illustrates the limited force of the Court’s intervention. Following the GVR, the Eighth Circuit concluded that Rahimi “does not change” its earlier determination and again upheld § 922(g)(1) as applied to a defendant with drug-distribution convictions. The Supreme Court’s GVR neither ratified that categorical approach nor rejected the more individualized approach associated with Range; it left both questions for continuing development in the courts of appeals.
The Court’s post-Rahimi approach is therefore best understood as an exercise in controlled percolation. It has treated Rahimi as sufficiently relevant to invalidate pre-Rahimi appellate judgments, but it has declined to select a vehicle for deciding the underlying scope of Congress’s authority to permanently disarm people with qualifying convictions. Unless and until the Court grants plenary review, the constitutional status of § 922(g)(1)—especially as applied to persons with nonviolent or remote convictions—remains circuit-dependent.
This approach may have its reasons, but when SCOTUS handles challenges to the Second Amendment concerning such issues as so-called “assault weapons,” firearm type and common usage, magazine carry limits, carry laws, sensitive places, possession in specific places, age-based restrictions, accessory and component regulation, firearms commerce, transfer controls, registration and purchase prerequisites, serialization, storage, transportation, discharge restrictions, NFA act regulations, interstate commerce, civil liability, state preemption, local regulation, and emergency powers, law abiding gun owners hope and pray that the resolution is not Circuit dependent. As we have learned since the Bruen decision many of the twelve Circuits appear to have a strong anti-Second Amendment bias.
State Legislatures: Still in session:
States running through to Dec. 31: Michigan, New Jersey, and Ohio. Pennsylvania session runs through November 30, 2027.
California: On Sept. 26, Governor Newsom signed:
- AB1743 expands the state’s gun-owner data-sharing system, allowing more people to access information in California’s firearms databases. That’s concerning in a state where officials already leaked the personal data of thousands of gun owners and carry permit holders in a major 2022 breach.
- AB 1753: Applies existing Gun Violence Restraining Order procedures and penalties to ammunition possession, in addition to firearms. This expansion of the GVRO framework raises Second Amendment and due-process concerns.
- AB-1974 establishes a California framework for the voluntary surrender of firearms to law-enforcement agencies for temporary safekeeping,
- AB 2047: Restrict the sale or transfer of certain 3D printers unless they include “firearm blocking technology.” Opponents argue that the required technology is not currently feasible and argue that the measure could affect lawful uses of 3D-printing technology, including education, medicine, and manufacturing.
- SB 948: Substantially changes California’s Firearm Safety Certificate regime by converting what has largely been a certificate-and-test prerequisite for many firearm transactions into a more demanding training requirement. Beginning in 2028, an applicant would need to complete at least four hours of prescribed instruction, including classroom education and live-fire training, before qualifying for an FSC
- SB 1220: Expands the California misdemeanors that carry a collateral, 10-year firearm prohibition. Under the measure, a person convicted of unlawfully possessing, selling, transferring, or otherwise dealing in a firearm whose identifying marks or serial number have been altered may lose the ability to possess firearms for a decade—even though the underlying conduct was already criminalized as a misdemeanor.
Two States implement anti-gun owner regulations
New Jersey: Virginia Attorney General Jay Jones has created a Firearms Accountability & Industry Responsibility (FAIR) Unit to enforce the Commonwealth’s new Firearm Industry Standards of Responsible Conduct. Housed within the Attorney General’s Civil and Criminal Justice & Public Safety Divisions, the unit is intended to bring civil actions against manufacturers, distributors, retailers, and other firearm-industry members under Virginia Code § 59.1-148.6.
Virginia’s new law passed by the 2026 legislature authorizes the Attorney General and private plaintiffs to sue firearm-industry members for allegedly contributing to a public nuisance through conduct deemed “unreasonable under all the circumstances.” It also requires industry members to adopt “reasonable controls” governing the manufacture, sale, distribution, use, and marketing of firearm-related products. The statute does not define those standards with specificity, leaving businesses uncertain about what practices will be considered adequate.
The law permits both state enforcement and private civil suits by persons claiming injury from a prohibited act or omission. Courts may award broad “appropriate relief,” and a claimant need not prove that the industry member intended to create a public nuisance or cause public harm. In practical terms, liability may turn on a court’s later assessment of whether a dealer’s or manufacturer’s conduct and internal controls were sufficiently “reasonable.”
Critics argue that this approach replaces clear legislative rules with open-ended standards enforced through litigation. They contend that otherwise lawful firearm businesses may face costly suits even when they comply with express statutory and regulatory requirements, because the Attorney General or private plaintiffs can argue that additional, unwritten precautions were required.
A Virginia retailer interviewed by News5 similarly reported receiving little practical guidance about what the new law requires and expressed concern that the statute will be used to pressure gun dealers, distributors, and manufacturers out of the Commonwealth.
Washington: Washington State Patrol’s initial implementation framework for Washington’s 2025 permit-to-purchase law has drawn criticism for creating high costs, administrative bottlenecks, training uncertainty, and expanded restrictions on firearm transactions. The NRA argues that these developments confirm the implementation problems it identified during legislative debate.
Key problems identified
- Instructor eligibility: WSP initially interpreted the law to exclude NRA instructors from teaching the required safety and live-fire course. After NRA outreach, WSP revised that position. NRA instructors may participate, but their course offerings still require state approval to satisfy Washington-specific requirements.
- Higher-than-expected cost: A new permit will cost $126, more than twice the amount WSP had estimated in legislative testimony. Renewals will cost $90. Existing concealed-pistol licenses and hunting licenses do not substitute for the new purchase permit.
- Fingerprinting barriers: Applicants must pay fingerprinting charges to both WSP and their local law-enforcement agency. Local agencies reportedly were not alerted to the new obligation, and staffing shortages may delay processing.
- Live-fire training uncertainty: Some shooting ranges are reluctant to host the mandatory live-fire training because of potential liability under WSP’s interpretation of the law. That may reduce the number of places where applicants can complete the prerequisite course.
- Repeated NICS checks: The framework calls for National Instant Criminal Background Check System checks twice during the permit process and annually thereafter. The NRA contends that this use exceeds the intended statutory framework for NICS and resembles an implementation problem encountered under Washington’s Initiative 1639.
- Nonresident exclusion: Nonresidents will be unable to purchase or receive firearms through transfers in Washington.
(See TGM coverage of this situation here and here.)
Bottom line
The permit-to-purchase regime is shaping up as a separate, recurring licensing system rather than a one-time background-check process. Applicants face a $126 initial fee, separate fingerprinting expenses, mandatory training and live fire, possible local processing delays, recurring NICS checks, and a $90 renewal cost. In the NRA’s view, those features make the law a substantial barrier to otherwise lawful firearm acquisition, while the initially confused guidance and limited training capacity raise significant implementation concerns.
Minnesota: the Trump DOJ fights back
The Justice Department published a press release announcing the lawsuit against Minnesota, Minneapolis, and St. Paul, contending that their firearm-purchase permit and waiting-period requirements violate the Second Amendment as applied to law-abiding people seeking handguns or other firearms for self-defense in the home. The suit targets Minnesota’s 30-day waiting period for people not seeking to carry publicly, as well as municipal procedures that DOJ says can extend the effective delay to nearly 60 days in Minneapolis and St. Paul. We will be following this case in our Judicial Reports.
DOJ’s position
DOJ argues that citizens who have passed a background check should not have to obtain government permission or wait weeks to acquire a firearm for home defense. Assistant Attorney General Harmeet K. Dhillon grounded that argument in the Supreme Court’s recognition that the need for defense of self, family, and property is especially acute in the home. U.S. Attorney Daniel N. Rosen stated that the Department will oppose state or local procedures that impair Minnesotans’ ability to purchase firearms.
Enforcement context
The action was brought by DOJ’s Civil Rights Division, including its Second Amendment Section. The release identifies that section’s responsibilities as enforcing Second Amendment rights, the Police Pattern or Practice Act, 34 U.S.C. § 12601, and Executive Order 14206, which concerns protection of Second Amendment rights. The Department also invited current or prospective gun owners who believe state or local governments have infringed their right to keep or bear arms to submit a complaint to the section.
