Preserve the Record Alert: Felon in Possession Statutes are Low-Hanging Fruit

, Professor at Moritz College of Law at Ohio State University reports at his blog, Sentencing Law and Policy, that the Seventh Circuit has suggested that a non-violent felon might prevail on a Second Amendment challenge if he brings an as-applied challenge to the Federal Felon in Possession statute (18 U.S.C. Section 922(g)(1))). In U.S. v. Williams.pdf, No. 09-3174 (7th Cir. August 5, 2010), with retired Justice Sandra Day O’Conner participating as a member of the panel, the court rejected a challenge to the statute brought by a defendant with a violent felony record.

Professor Berman finds particularly noteworthy the following paragraph from the Williams opinion:

And although we recognize that Section 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult a difficult burden of proving Section 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges [the statute] as it was applied to him. … Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of Section 922(g)(1).

Looks like an engraved invitation for a non-violent felon to bring it on. And though we Georgians are not in the 7th Circuit, it looks like a nice little opportunity to throw a challenge into your record if you are representing someone at the trial level who is a non-violent felon charged with a felon-in-possession charge under the Federal statute or under Georgia’s comparable statute. Wouldn’t hurt.

When I get your record on appeal, it will give me something more than Jackson v. Virginia to talk about.

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