On October 13, the Third Circuit, sitting en banc, decided United States v. Bost, No. 24-1719, a challenge to 18 U.S.C. § 922(g)(1), the federal ban on firearm possession by anyone convicted of a crime punishable by more than a year in prison. James Bost lost. The rules the court announced, however, favor the Second Amendment on two points of real consequence: disarmament must rest on violence or a threat of violence, and a criminal defendant need not first seek the Attorney General’s permission before raising a constitutional defense.
The Rule the Court Announced
Judge Stephanos Bibas wrote for the court. His opening paragraph states the governing principle:
“The right to keep and bear arms has limits, and this is one: Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality. Not every convict poses such a risk—but James Bost does.”
That is the dangerousness principle of United States v. Rahimi, 602 U.S. 680 (2024), applied to the felon-in-possession statute. I said when Rahimi was decided that it was a better decision for the Second Amendment than its critics allowed, and the cases since then, including United States v. Hemani and Wolford v. Lopez, have borne that out. Bost extends the pattern. The question is no longer whether Congress may label someone a felon. The question is whether the person’s conviction shows that he is a physical danger to others.
Three Categories of Predicate Crime
Judge Bibas sorts predicate offenses by what they reveal. Some, he wrote, “speak for themselves”:
“Some predicate crimes speak for themselves. Violent offenses, like common-law murder, forcible rape, and common-law robbery, mark a person as such.”
A person convicted beyond a reasonable doubt of an offense whose elements include physical violence has been found to be violent. At the other end, the court places offenses such as the food-stamp fraud at issue in Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024) (en banc), which are neither physically dangerous nor violent. Between them sits a middle category, and the court declined to resolve it:
“Though they may not involve immediate violence, they may fuel it and pose risks to the community. Whether these predicate crimes justify disarmament depends on their own historical analogies.”
The method matters as much as the result. The plain text presumptively protects the conduct, and history then supplies the exceptions. No one has ever had a right to use arms to commit murder, but that exception comes from the historical tradition, not from the words of the Amendment.
Why Bost Lost
In 2002, Bost threatened to kill a driver during a carjacking and pleaded guilty to terroristic threats and conspiracy under Pennsylvania law. Years later, U.S. Marshals found him next to a stolen pistol. The court concluded that his conviction fits the historical tradition of disarming those who threaten violence:
“That conduct fits squarely within the historical tradition of disarming those who threaten violence. It echoes the core concern of the going-armed laws: conduct that terrifies others and breaches or risks breaching the peace.”
I have no quarrel with that result. Losing a case like this one is no loss for the right, because it fixes the line where it belongs.
No Exhaustion Requirement
The second holding may prove more durable. Prosecutors have argued that a defendant who wants his rights back should first apply under 18 U.S.C. § 925(c), the statute that lets the Attorney General restore firearm rights. I wrote about the revival of that process in July 2025. The Third Circuit answered:
“In any event, we know of no other context in which a criminal defendant must first seek administrative permission before raising a constitutional defense in his criminal prosecution. We will not invent such a requirement here.”
The court also observed that, although the Attorney General has promulgated final regulations, the process has not yet resumed. I welcome the revived § 925(c) program and I have said so. But a right that exists in the Constitution cannot be conditioned on a petition to the executive branch. Takings and economic-liberty litigants know how exhaustion rules can bury a meritorious claim in delay. This holding keeps that obstacle out of the Second Amendment, though by its terms it reaches a criminal defendant raising a defense.
A Court Not Fully United
No one should read Bost as a unanimous statement. Judge Shwartz, joined by two colleagues, concurred only in the judgment and would hold that § 922(g)(1) is constitutional as to all felons. Judge Phipps dissented, joined by Judge Bove. Judge Mascott joined only parts of the opinion, and Judge Montgomery-Reeves joined all but one section. A fractured court issued the rules above, and the Supreme Court will have the last word.
The Fifth Circuit’s en banc Cordova case, set for argument in January 2027, will test the same dangerousness question on a different record. The direction of these decisions since Rahimi is consistent, and I expect it to continue.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.