Third Circuit Sets a Test for Felon Gun Ban Challenges

Whether the federal felon gun ban can be applied to a person now depends heavily on what the old conviction was for, at least in the Third Circuit. On October 13, 2026, the full Third Circuit decided two cases on the same day. In one, it held that a prior conviction for a crime with violent or threatening elements is enough, at the start of a case, to justify the ban. In the other, it held that the ban could not be applied to a man whose only qualifying conviction was a repeat drunk-driving offense.

The Third Circuit hears federal appeals from Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands. Both cases were decided "en banc," meaning by the full court rather than a three-judge panel.

The law being challenged

18 U.S.C. § 922(g)(1) makes it a federal crime for anyone convicted of "a crime punishable by imprisonment for a term exceeding one year" to have a gun or ammunition. That covers most felonies. Under 18 U.S.C. § 921(a)(20), it can also cover a state misdemeanor punishable by more than two years.

An "as-applied" challenge argues that a law is unconstitutional for one particular person, even if it is valid for others. Under New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), the government must show a gun restriction fits the nation's historical tradition of gun regulation. In United States v. Rahimi, 602 U.S. 680 (2024), the Supreme Court said a person found to pose a clear threat of physical violence to another may be disarmed.

Bost: a threatening prior conviction is enough at the start

James Bost had an earlier conviction for making terroristic threats, a crime whose elements included "a threat to commit any crime of violence with intent to terrorize another." Years later, he was charged under § 922(g)(1). He moved to dismiss, arguing the law was unconstitutional as applied to him and on its face.

In an opinion by Judge Bibas, the court affirmed the denial of his motion. It held that some prior crimes show a "prima facie" risk of physical violence from misusing guns. "Prima facie" means enough on its face, unless something later shows otherwise. People convicted of those crimes may presumptively be disarmed based on the conviction alone.

The court described three groups of prior crimes:

• Violent or threatening crimes, such as murder, forcible rape, robbery or threats. These are enough to justify the ban, even if no gun was involved.
• Crimes that are not physically dangerous at all. The court pointed to its earlier ruling in Range v. Attorney General, which involved food-stamp fraud.
• A possible middle group of closer calls, which the court did not decide.

On a motion to dismiss, the court said judges look only at the prior crime that supports the charge, and the government carries the burden of showing that crime fits. The court also said Bost did not have to first ask the Attorney General to restore his gun rights under 18 U.S.C. § 925(c) before raising his defense. It rejected his facial challenge and his other claims. Several judges wrote separately, including judges who would uphold the ban for all felons and judges who dissented.

Williams: a repeat DUI alone was not enough

Edward Williams had two drunk-driving convictions from the early 2000s. The second was punishable by up to five years, which triggered § 922(g)(1). He did not wait to be charged. He filed a civil suit asking the court to declare the ban unconstitutional as applied to him.

In an opinion by Judge Matey, the full court affirmed the judgment in his favor. The court found that the government's historical examples, laws on "habitual drunkards," did not support disarming him permanently. It noted he had done nothing violent or dangerous in over twenty years. The court also found the § 925(c) rights-restoration process did not answer his claim, describing it as "a slow trickle of relief available only upon invitation."

What this means if you face a felon-in-possession charge

These rulings bind federal courts in the Third Circuit. Courts in other circuits are not bound by them and may decide these questions differently. As the Bost majority noted, the Supreme Court has not squarely addressed a law that disarms a whole category of people without a judge deciding who falls in it. So where the case is filed matters.

If you or someone you love is charged under § 922(g)(1), the defense should look closely at:

• The exact prior conviction. What were its elements? Was it violent or threatening, or not dangerous at all?
• The record of that conviction. Court documents may show which part of a statute the conviction was under.
• Timing. A motion to dismiss on Second Amendment grounds is raised before trial or a plea. A plea agreement may also need to preserve the issue for appeal, as Bost's did.

Nothing here predicts how any court will rule in a particular case. For more on the charge and how it is sentenced, see our page on federal gun charges.