Is Florida’s Felon Gun Law About to Change?

In a rare and consequential move, Florida Attorney General James Uthmeier has asked an appellate court to reverse a criminal conviction his office previously defended—an action that could reshape how firearm laws are enforced across the state. At its core, the case raises a fundamental question: can Florida permanently disarm all felons, or only those whose past conduct demonstrates they are dangerous?

The issue arises in a pending appeal before Florida’s First District Court of Appeal involving a prosecution under section 790.23, Florida Statutes, which broadly prohibits convicted felons from possessing firearms. The statute, as written, operates categorically. With limited exceptions, a felony conviction—regardless of its nature—triggers a lifetime prohibition on firearm possession.

That long-standing framework is now being tested.

A Rare “Confession of Error”

The case involves Christopher Morgan, who was previously convicted in Pennsylvania in 2007 of carrying a firearm without a license. Years later, during a traffic stop in Florida, he disclosed the presence of a firearm in his vehicle and was subsequently charged with possession of a firearm by a convicted felon. The defendant challenged the constitutionality of the statute as applied to him, arguing that his prior offense did not justify permanent disarmament under the Second Amendment.

The trial court rejected that argument. Morgan entered a plea while preserving his right to appeal.

Initially, the State defended the conviction on appeal. However, in a filing dated February 13, 2026, the Office of the Attorney General notified the appellate court that, upon further reflection, it had changed its position. The filing expressly states that the conviction violates the defendant’s Second Amendment rights and that the State “must…confess error and urge this Court to reverse.”

It is uncommon for the State to reverse its position in a pending criminal appeal, particularly after previously defending the conviction. In appellate practice, a confession of error is not a routine concession—it is the State acknowledging that a conviction cannot be constitutionally sustained. While appellate courts are not bound by such concessions, they are taken seriously, particularly when grounded in constitutional analysis.

From Categorical Prohibition to Constitutional Line-Drawing

The significance of the Attorney General’s position is not limited to this case. It reflects a potential shift away from categorical firearm prohibitions toward a constitutional framework that turns on a more nuanced inquiry: whether the individual at issue falls within a historically recognized category of people who may be disarmed.

The State now takes the view that the Second Amendment permits the government to disarm individuals whose prior convictions demonstrate that they are “dangerous,” but does not support the categorical disarmament of all felons as a class. In other words, the relevant constitutional question is no longer simply whether an individual is a felon, but whether that individual’s prior conduct places him or her within a category of people who may be lawfully disarmed.

Put simply, the issue is no longer whether felons can be disarmed—it is whether the Constitution permits that disarmament without regard to dangerousness.

This is a substantial shift.

Florida’s statute does not distinguish between violent and nonviolent offenses. A conviction for a regulatory offense—such as carrying a firearm without a license—triggers the same prohibition as a conviction for armed robbery or aggravated assault. The Attorney General’s filing implicitly acknowledges that this one-size-fits-all approach may not survive constitutional scrutiny in every case.

According to Edward Mosher — a Fort Pierce criminal defense attorney not associated with the case — Uthmeier’s position could mark a turning point in how these cases are analyzed:

“This is a significant development because it moves the analysis away from a categorical prohibition and toward a constitutional inquiry based on dangerousness. If courts adopt that framework, it could open the door to as-applied challenges that were previously unlikely to succeed.”

The Influence of Recent Supreme Court Precedent

This developing framework must be understood in the context of recent United States Supreme Court decisions interpreting the Second Amendment.

In New York State Rifle & Pistol Association v. Bruen (2022), the Court rejected traditional “interest balancing” tests in favor of a historical analysis. Under Bruen, the constitutionality of firearm regulations depends on whether they are consistent with the Nation’s historical tradition of firearm regulation.

More recently, in United States v. Rahimi (2024), the Court reaffirmed that certain categories of individuals—particularly those found to pose a credible threat to others—may be disarmed consistent with historical practice. While the Court upheld restrictions in that case, it did so by emphasizing the concept of dangerousness, not by endorsing broad, categorical prohibitions untethered from historical analogues.

The Attorney General’s position appears to align with that framework. The filing suggests that historical tradition supports disarming dangerous individuals but does not necessarily support disarming all felons regardless of the nature of their offenses.

At its core, the emerging legal debate is not about the existence of firearm prohibitions, but about the scope of those prohibitions and the historical limits on their application.

Courts across the country have reached differing conclusions on the scope of firearm restrictions for individuals with felony convictions, and many have continued to uphold broad prohibitions. The law in this area remains unsettled.

Practical Implications for Florida Courts

If Florida’s appellate courts adopt this reasoning, the implications could be far-reaching.

If adopted, the Attorney General’s position could narrow the application of Florida’s felon-in-possession law in certain cases, particularly where the underlying offense does not involve violence or a demonstrated risk to public safety.

First, courts may be required to engage in “as-applied” constitutional analysis in felon-in-possession cases. Rather than treating section 790.23 as uniformly valid, courts could be asked to determine whether applying the statute to a particular defendant is consistent with the Second Amendment.

Second, the concept of “dangerousness” will need to be defined. That is no small task. Courts will have to determine whether dangerousness is measured by the statutory label of the offense, the underlying conduct, the passage of time, or some combination of factors. The line between violent and nonviolent offenses is not always clear, and even nonviolent conduct may, in some contexts, raise legitimate public safety concerns.

From a practical standpoint, the introduction of a “dangerousness” standard presents as many questions as it answers. Courts will be required to draw lines in cases that do not fit neatly into traditional categories. The determination of what constitutes a “dangerous” offense may turn not only on statutory labels, but on underlying facts, passage of time, and individual circumstances—an inherently fact-intensive inquiry that may produce differing results across jurisdictions.

If adopted, this approach could shift Florida from a categorical prohibition to a case-by-case constitutional inquiry—placing greater emphasis on the nature of the underlying offense than the mere existence of a felony conviction.

Steven Swickle — also a criminal defense attorney — cautioned that courts are likely to approach the issue carefully:

“Courts are likely to approach this cautiously. The concept of ‘dangerousness’ is not clearly defined, and not every nonviolent offense will necessarily fall outside that category. This is an issue that will be heavily litigated before the law becomes settled.”

Third, this approach could affect prosecutorial decision-making. State attorneys may face increased litigation over the constitutionality of charges under section 790.23, particularly in cases involving decades-old nonviolent offenses, regulatory violations, or out-of-state convictions.

It is important to emphasize what this development does not do. The Attorney General’s filing does not invalidate Florida’s felon-in-possession statute, nor does it create a general right for individuals with felony convictions to possess firearms. Any change in the law will depend on how Florida’s appellate courts—and potentially the Florida Supreme Court—interpret and apply the constitutional principles at issue.

A Broader Policy Question

Beyond the immediate legal questions, this case highlights a broader policy tension that has long existed in Florida law.

Unlike some states, Florida does not provide a comprehensive judicial mechanism for restoring firearm rights. Individuals seeking restoration typically must pursue executive clemency, a process that can be lengthy and discretionary. As a result, individuals with old or nonviolent convictions may remain subject to lifetime prohibitions without a clear avenue for relief.

The “nondangerous felon” concept, if adopted, could function as a limited judicial check on that framework, ensuring that constitutional rights are not denied in cases where the historical justification for disarmament is absent.

At the same time, any such development will need to be balanced against legitimate public safety concerns. Courts will be tasked with drawing lines that are both constitutionally sound and practically workable—an exercise that is rarely straightforward.

A Case to Watch

Whether the court adopts the State’s revised position remains to be seen. However, the filing itself is noteworthy. It reflects an evolving understanding of the Second Amendment and signals that the legal landscape surrounding firearm regulation in Florida may be entering a new phase.

The question is no longer simply whether Florida can prohibit felons from possessing firearms. That principle remains largely intact. The emerging question is narrower—and more difficult: whether the Constitution permits the State to do so regardless of the nature of the underlying offense.

The outcome may ultimately determine whether Florida’s firearm laws are defined by categorical rules—or by individualized constitutional judgments grounded in history, tradition, and the concept of dangerousness.