Nonviolent Felon Gun Ban Case Gets an October 9 Conference

Last updated October 2026 · By Nick Hall, tracks federal firearms prohibitions and Second Amendment petitions at the Supreme Court for USA Gun Shop readers

Quick take: The Supreme Court is set to consider a challenge to the federal ban on felons having guns, brought by a man whose only felony is a 2015 Colorado marijuana grow conviction, at its October 9 conference. The Justice Department waived its right to respond, and the NRA, FPC and SAF filed a brief on October 1 asking the Court to take the case.

• What happened: The Supreme Court distributed Johnson v. United States (No. 26-270) on September 23 for its October 9, 2026 conference, after the government waived its right to respond on September 18.
• Why it matters: The petition asks whether a person whose only felony is nonviolent can bring an as-applied Second Amendment challenge to the federal felon-in-possession ban, 18 U.S.C. § 922(g)(1).
• What’s next: After the conference the Court can grant review, deny it, or ask the government for a response, which the waiver letter expressly leaves open.
• Who to watch: Solicitor General D. John Sauer, petitioner’s counsel E. Joshua Rosenkranz of Orrick, and the NRA, FPC and SAF, which filed an amicus brief together on October 1.

The Supreme Court has turned away a run of felon-in-possession petitions in recent Terms. Johnson’s lawyers say those cases came with baggage this one doesn’t have: violent records, facial-only challenges, or civil plaintiffs the government told to try its new relief process first. This one is a criminal case with one old, nonviolent conviction and an argument preserved from the first motion. I read the docket, the petition, the waiver letter and the amicus brief. Here’s what’s actually in them.

Table of Contents

What Joseph Johnson Was Actually Convicted Of

A federal grand jury indicted Joseph Frederick Johnson in December 2024 on two counts of possessing a firearm and ammunition as a felon. According to the petition, the charges came out of two police encounters, a traffic stop and a welfare check.

The only predicate felony is a 2015 Colorado conviction for growing marijuana plants. The petition says that case ended in probation, not prison, and that the probation terminated early. The federal case was brought in the Northern District of Oklahoma.

Johnson moved to dismiss, arguing that Section 922(g)(1) is unconstitutional as applied to him under the Bruen framework. He conceded that the Tenth Circuit’s own precedent, the Vincent decision, foreclosed the argument and raised it anyway to preserve it. The district court denied the motion, he pleaded guilty to both counts while reserving his right to appeal, and he was sentenced to twelve months and one day in prison plus three years of supervised release.

The Tenth Circuit’s Short Answer

A Tenth Circuit panel of Judges Moritz, Baldock and Eid affirmed on April 29, 2026, deciding the appeal on the briefs without oral argument. The reasoning fits in one sentence: Vincent “upheld the constitutionality of § 922(g)(1) over a Second Amendment objection as to any individual convicted of a prior felony, including a non-violent felony offender.”

The panel added that one panel cannot overrule another without an en banc or Supreme Court decision. Its own order is marked as not binding precedent, but that changes nothing for Johnson, because Vincent is binding circuit precedent and the Supreme Court denied review in Vincent on March 2, 2026.

The government’s position below was blunt. The petition quotes its Tenth Circuit brief: “The fact that [Mr.] Johnson’s prior conviction was allegedly non-violent is irrelevant.”

The 6-3 Split Behind Johnson v. United States

The petition frames the issue narrowly. Its question presented reads: “Whether an individual whose sole predicate felony is a non-violent offense may bring an as-applied Second Amendment challenge to § 922(g)(1)’s permanent dispossession of the right to keep and bear arms.”

By the petition’s count, the federal circuits have split six to three. The Third, Fifth and Sixth Circuits permit as-applied challenges in some cases. The Second, Fourth, Eighth, Ninth, Tenth and Eleventh bar them, “regardless of the nature of the predicate.”

The examples on the permissive side aren’t abstract. The petition cites the en banc Third Circuit’s Range ruling for a man whose only predicate was food-stamp fraud, and a Fifth Circuit panel that found attempted marijuana cultivation “clearly does not fit” within the historical categories that justify permanent disarmament. On the other side, it cites Eighth and Eleventh Circuit rulings that kept the categorical bar in place for marijuana-related predicates.

The petition also leans on Hemani, the 2026 decision in which, the petition says, the Court unanimously held Section 922(g)(3) unconstitutional as applied to a marijuana user. Johnson’s lawyers argue that if current marijuana use can’t categorically justify disarmament, “a decade-old marijuana cultivation conviction cannot categorically justify permanent disarmament under § 922(g)(1).”

And the volume is real. The petition cites Sentencing Commission figures of 7,245 Section 922(g) convictions in fiscal year 2025, with 89% of them falling under (g)(1).

Why the DOJ Waiver Is Not a Concession

On September 18, Solicitor General D. John Sauer filed a one-paragraph waiver: “The Government hereby waives its right to file a response to the petition in this case, unless requested to do so by the Court.” The response had been due October 1.

Don’t read that as the government giving up. Under the Court’s Rule 15.1, a brief in opposition “is not mandatory” outside capital cases unless the Court asks for one, so waiving is a move the rules expressly allow. The last eight words of the letter are the escape hatch. If the Court wants to hear from the government, it can ask, and a call for a response would push any decision past October 9.

The letter gives no reasons, and nothing on the docket says why DOJ chose not to respond. Tying it to the department’s new rights restoration rule is a guess, not a fact. The petition argues that rule does nothing for Johnson anyway, because Section 925(c) relief “offers only prospective relief.”

What the NRA, FPC and SAF Brief Argues

Two amicus briefs landed on October 1, one from the Cato Institute and one filed jointly by the National Rifle Association of America, Firearms Policy Coalition and Second Amendment Foundation. Joseph Greenlee of NRA-ILA is counsel of record on the joint brief, with Cody Wisniewski of FPC Action Foundation and Adam Kraut of SAF also on the cover.

Its argument is historical. The brief says the nation’s tradition of firearm regulation supports disarming “only dangerous persons,” and that nonviolent criminals “who did not demonstrate a propensity for violence retained the ability to exercise their right to keep and bear arms.”

It also points to colonial and Founding-era militia laws, which the brief says required able-bodied men to keep arms and had no exemption “based on prior incarceration or crimes committed.” The ask is plain: “Certiorari should be granted to establish that the Second Amendment forbids the disarmament of peaceable Americans.”

That’s a bigger ask than the petition’s. Johnson only wants the Court to say as-applied challenges exist when the predicate is nonviolent, and the petition says the Court “need not” even decide the merits of his own claim.

What Happens at the October 9 Conference

The docket entry for September 23 reads “DISTRIBUTED for Conference of 10/9/2026.” A conference is not a grant. The Court can grant review, deny it, or ask the government to respond, and nothing is decided until an order issues.

If the Court grants, a case built on a decade-old grow conviction becomes the vehicle for the biggest open felon-in-possession question in federal law, and the answer would reach every circuit at once. If it denies, the split stays where it is, and whether a nonviolent felon can even raise an as-applied challenge to Section 922(g)(1) keeps depending on which circuit he happens to live in.

One naming note. This Johnson isn’t the trucker behind the carry reciprocity petition, a different Johnson with a different case, and neither is the AR-15 case the Court has already taken.

A decade-old grow conviction. A split the petition counts at six to three. October 9 is when the Court starts deciding whether it wants to be the tiebreaker.

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