Justice Department urges Supreme Court to decide if felons can be barred from having a gun

WASHINGTON ? Now that the Supreme Court has offered some clarification on testing the constitutionality of a gun restriction, the Justice Department wants the high court to decide if people convicted of both violent and non-violent felonies can be barred from having a firearm.

The government told the high court this week their intervention is needed because a disagreement among lower courts has had “widespread and disruptive effects” that are threatening public safety.

The Justice Department made that argument in a filing days after the Supreme Court upheld a law banning domestic abusers from having guns in a decision that only partially addressed many of the issues that have arisen after the court in 2022 set a historical test for deciding if gun regulations are permissible under the Second Amendment.

Writing for the 8-1 majority, Chief Justice John Roberts said courts have misunderstood the methodology behind that decision.

But the court’s three liberal justices, while welcoming the clarification, said there is still not a clear test to assess the constitutionality of gun restrictions.

“Today’s opinion inches that ball forward,” Justice Ketanji Brown Jackson wrote in a concurring opinion. “But it is becoming increasingly obvious that there are miles to go.”

The Justice Department said the court needs to decide if someone convicted of a crime punishable by more than a year in prison can be barred from having a gun.

The cases the government wants the Supreme Court to take up next term involve very different circumstances.

An Iowa man with a long criminal record that includes convictions for theft, assault and intimidation with a dangerous weapon is appealing his conviction of possessing a firearm as a felon.

A Minnesota man who had served time for a non-violent drug crime – selling cocaine – said he should not have been charged for having a gun after serving his sentence.

A Pennsylvania man argues his decades-old conviction for falsifying his income on an application for food stamps should not prevent him from having a firearm.

A Utah woman likewise said bad checks she wrote 17 years ago are not enough to block her right to a gun.

The statute being tested in all the cases was used in more than 7,600 convictions in 2022, according to the Justice Department. The convictions accounted for 12% of all federal criminal cases.

“Uncertainty about the statute’s constitutionality thus affects a significant proportion of the federal criminal docket,” Solicitor General Elizabeth Prelogar told the court.

Some of the firearm convictions overturned by lower courts involved murders, carjackers and drug traffickers, she noted.

The split in how courts are resolving the cases arose after the Supreme Court in 2022 struck down a New York law that required state residents to have "proper cause" to carry a handgun. In NYSRPA v. Bruen, the court said gun prohibitions must be grounded in history.

In last week’s opinion upholding gun bans for domestic abusers, Roberts said some courts mistakenly read that decision to mean they had to find a “historical twin” for a regulation, rather than a "historical analogue."

But Roberts also said that decision, and two other recent ones that have reshaped the Second Amendment debate, were not an “exhaustive analysis” of the amendment’s limits and protections.

Justices in the court’s liberal wing  ? as well as Justice Amy Coney Barrett – emphasized the confusion that exists.

“Courts have struggled with this use of history in the wake of Bruen,” Barrett wrote in a concurrence.

Jackson said the Bruen test “appears to be creating chaos.”

The court could decide in the coming days whether to take up the Second Amendment cases.

This article originally appeared on USA TODAY: Supreme Court asked by DOJ to clarify Second Amendment and felons