Petition for Writ of Certiorari — Hector Patricio Galvan, Petitioner v. United States

NO. _________

In the Supreme Court of the United States

________________

HECTOR PATRICIO GALVAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

________________

PETITION FOR A WRIT OF CERTIORARI

________________

J. Matthew Wright

Counsel of Record

Federal Public

Defender’s Office

500 South Taylor Street

Unit 110.

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org

Counsel for Petitioner

May 8, 2024

i

QUESTIONS PRESENTED

Title 18, section 922(g) identifies nine categories of

persons who are commanded not “to ship or transport

in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which has been

shipped or transported in interstate or foreign

commerce.” The most commonly prosecuted category

of prohibited persons is 18 U.S.C. § 922(g)(1)—anyone

“(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one

year.”

1.

Does 18 U.S.C. § 922(g)(1) violate the Second

Amendment on its face or as applied in this case?

2.

Does the mere movement of a firearm from one

state to another mean that every subsequent act of

possession is possession “in or affecting commerce?”

3.

Does 18 U.S.C. § 922(g)(1) exceed Congress’s

enumerated powers?

ii

DIRECTLY RELATED PROCEEDINGS

United States v. Hector Patricio Galvan, No. 2:22-cr48 (N.D. Tex. Dec. 14, 2022)

United States v. Hector Patricio Galvan, No. 22-11239

(5th Cir. Feb. 8, 2024)

iii

TABLE OF CONTENTS

Questions Presented .................................................... i

Directly Related Proceedings ..................................... ii

Table of Authorities ................................................... iv

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Statutory and Constitutional Provisions Involved ... 2

Statement ................................................................... 3

Reasons for Granting the Petition ............................. 4

I.

WHATEVER HAPPENS IN RAHIMI, THE

COURT SHOULD GRANT CERTIORARI TO

EXPLAIN

WHETHER

A

LAW

CRIMINALIZING FELONS’ POSSESSION

OF FIREARMS IS CONSISTENT WITH

THE SECOND AMENDMENT. ......................... 4

A. Under Bruen’s standard, § 922(g)(1) is

unconstitutional. .......................................... 5

B. Statements in Heller, McDonald, and

Bruen suggest the opposite outcome. .......... 7

C. The unreasonably broad scope of

§ 922(g)(1) creates disagreement about

as-applied

Second

Amendment

challenges. .................................................... 8

D. This Court should grant certiorari and

explain whether § 922(g)(1) is to be

evaluated on its face or only as-applied,

and how that analysis should proceed......... 9

iv

II. THIS COURT SHOULD GRANT THE

PETITION AND ADDRESS WHETHER A

FIREARM’S PRIOR MOVEMENT ACROSS

STATE LINES MEETS THE MINIMUM

STATUTORY AND CONSTITUTIONAL

REQUIREMENTS FOR PROVING A

NEXUS WITH COMMERCE. ........................... 10

Conclusion ................................................................. 15

Appendix

Appendix A: Fifth Circuit Opinion................................... 1a

Appendix B: Factual Resume ....................................... 5a

TABLE OF AUTHORITIES

Cases

Alderman v. United States,

562 U.S. 1163 (2011) ............................................ 11

Atkinson v. Garland,

70 F.4th 1018 (7th Cir. 2023) ................................ 9

Barrett v. United States,

423 U.S. 212 (1976) .............................................. 13

Binderup v. Attorney Gen.,

836 F.3d 336 (3d Cir. 2016).................................... 8

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................. 4, 5, 7, 9, 10

v

Garland v. Range,

No. 23-374 (U.S.docketed Oct. 10,

2023) ....................................................................... 4

Jackson v. United States,

23-6170 (U.S. docketed Dec. 6, 2023) .................... 4

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) .................................. 8

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................................ 7

New York State Rifle & Pistol Ass’n v.

Bruen,

597 U.S. 1 (2022) .................................... 5, 6, 7, 8, 9

Range v. Attorney Gen.,

69 F.4th 96 (3d Cir. 2023) ...................................... 9

Rehaif v. United States,

139 S. Ct. 2191 (2019) (Alito, J.,

dissenting) ............................................................ 11

Scarborough v. United States,

431 U.S. 563 (1977) .................................. 11, 12, 13

United States v. Bass,

404 U.S. 336 (1971) ................................................ 7

United States v. Bean,

537 U.S. 71 (2002) .................................................. 8

United States v. Jackson,

69 F.4th 495 (8th Cir. 2023), reh’g

denied, 85 F.4th 468 (8th Cir. 2023)...................... 9

vi

United States v. Lopez,

514 U.S. 549 (1995) .............................................. 11

United States v. Morrison,

529 U.S. 598 (2000) .............................................. 14

United States v. Rahimi,

143 S.Ct. 2688 (2023) ............................................. 4

United States v. Seekins,

52 F.4th 988 (5th Cir. 2022) (Ho, J.,

dissenting from denial of reh’g) ........................... 11

Vincent v. Garland,

80 F.4th 1197 (10th Cir. 2023) .............................. 9

Vincent v. Garland,

No. 23-683 (U.S. docketed Dec. 26,

2023) ....................................................................... 4

Constitutional Provisions

U.S. Const., art. I, § 8 ............................................ 2, 11

U.S. Const., amend. II ................... 2, 3, 4, 5, 6, 8, 9, 10

Statutes

18 U.S.C. § 922(g) .................................. 2, 3, 11, 13, 14

18 U.S.C. § 922(g)(1)

.......................................... 3, 4, 5, 6, 8, 9, 10, 12, 14

18 U.S.C. § 922(g)(8) .................................................... 4

18 U.S.C. § 925(c) ........................................................ 8

vii

28 U.S.C. § 1254(1) ...................................................... 1

Gun-Free School Zones Act ....................................... 11

79 Stat. 788 (1965)....................................................... 8

Other Authorities

Robert H. Churchill,

Gun Regulation, the Police Power,

and the Right to Keep Arms in Early

America: The Legal Context of the

Second Amendment, 25 L. & Hist.

Rev. 139, 142 (2007) ............................................... 6

Federal Bureau of Investigation,

Active Records in the NICS Indices

(updated April 30, 2024) ...................................... 14

Carlton F.W. Larson,

Four Exceptions in Search of a Theory: District of Columbia v. Heller

and Judicial Ipse Dixit, 60 Hastings

L.J. 1371 (2009) ...................................................... 6

James Madison to Judge Roane, May 6,

1821, in 9 The Writings of James

Madison 61 (Gaillard Hunt, ed. 1910)................... 7

C. Kevin Marshall,

Why Can’t Martha Stewart Have A

Gun?, 32 Harv. J.L. & Pub. Pol'y 695,

708 (2009) ............................................................... 6

viii

William Rawle,

A View of the Constitution of the

United States (2d ed. 1829) .................................. 10

Emily Tiry et al.,

Prosecution of Federal Firearms

Offenses 2000-16 (Urban Institute

Oct. 2021).............................................................. 14

In the Supreme Court of the United States

_________________________

No ______

HECTOR PATRICIO GALVAN,

v.

Petitioner,

UNITED STATES OF AMERICA,

_________________________

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________

Hector Patricio Galvan respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The Fifth Circuit’s opinion below was not selected

for publication. It can be found at 2024 WL 485701.

The decision is reprinted on pages 1a–4a of the

Appendix. The district court did not issue any written

opinions.

JURISDICTION

The Fifth Circuit entered its judgment on February

8, 2024. This petition is timely under S. Ct. R. 13.3.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

2

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves the interpretation and

application of 18 U.S.C. § 922(g); the Commerce

Clause (U.S. Const. art. I, § 8, cl. 3); and the Second

Amendment. Title 18, Section 922(g) provides, in

pertinent part:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a

crime punishable by imprisonment for a term

exceeding one year …

to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce,

any firearm or ammunition; or to receive any

firearm or ammunition which has been

shipped or transported in interstate or foreign

commerce.

Article I of the United States Constitution, Section 8

provides, in pertinent part:

The Congress shall have Power … To regulate

Commerce with foreign Nations, and among

the several States, and with the Indian Tribes.

The Second Amendment to the United States

Constitution provides:

A well regulated Militia, being necessary to

the security of a free State, the right of the

people to keep and bear Arms, shall not be

infringed.

3

STATEMENT

During a traffic stop for failure to wear a seatbelt,

police searched Petitioner Hector Patricio Galvan’s

automobile and found a pistol under the front

passenger seat. App., infra, 6a. As Petitioner would

later admit, he had previously been convicted of a

crime punishable by more than one year in prison. Id.

A federal law enforcement agent studied the pistol and

decided it had been “manufactured outside the state of

Texas.” App., infra, 7a. Under the prevailing

interpretation of the “in or affecting commerce”

element of 18 U.S.C. § 922(g), the firearm’s previous

movement between the point of manufacture and

Texas meant he was subject to federal prosecution.

Petitioner pleaded guilty. App., infra, 2a.

On appeal, Petitioner challenged his guilty plea

and plea agreement. He argued that the pistol’s

previous movement did not satisfy the nexus-withcommerce element, or if it did, the statute exceeded

Congress’s enumerated powers. App., infra, 2a. He

also argued that § 922(g)(1) violated the Second

Amendment on its face and as applied. The Fifth

Circuit rejected the nexus arguments on the merits

and held that any Second Amendment error was

forfeited and was not “plain.” This timely petition

follows.

4

REASONS FOR GRANTING THE PETITION

I.

WHATEVER HAPPENS IN RAHIMI, THE

COURT SHOULD GRANT CERTIORARI TO

EXPLAIN

WHETHER

A

LAW

CRIMINALIZING FELONS’ POSSESSION

OF FIREARMS IS CONSISTENT WITH THE

SECOND AMENDMENT.

Under a straightforward application of this Court’s

text and historical tradition approach to the Second

Amendment, the possession prong of 18 U.S.C.

§ 922(g)(1) is unconstitutional. Even so, this Court has

suggested, in dicta, that the statute is presumptively

constitutional. District of Columbia v. Heller, 554 U.S.

570, 626 & n.26 (2008). The lower courts are

struggling

to

reconcile

the

competing

pronouncements. The Court should grant certiorari to

resolve the matter definitively. The Court already has

several fully briefed cases to choose from.1

In United States v. Rahimi, 143 S.Ct. 2688 (2023)

(No. 22-915), the Court is reviewing a Fifth Circuit

decision holding that a different subsection—18

U.S.C. § 922(g)(8)—is constitutional under the Second

Amendment. While Rahimi will shed some light on

Subsection (g)(1), the prohibitions are different

1

The Court is holding several petitions that raise the facial

or as-applied constitutionality of 18 U.S.C. § 922(g)(1), including

Vincent v. Garland, No. 23-683 (docketed Dec. 26, 2023),

Jackson v. United States, 23-6170 (docketed Dec. 6, 2023), and

Garland v. Range, No. 23-374 (docketed Oct. 10, 2023).

5

enough that the Court will probably need to grant

certiorari to address Subsection (g)(1) directly.

A. Under Bruen’s standard, § 922(g)(1) is

unconstitutional.

In Heller, the Court held “on the basis of both text

and history, that the Second Amendment conferred an

individual right to keep and bear arms.” 554 U.S. at

595. Without performing any “historical analysis,” the

Court mused that the decision should not “cast doubt

on longstanding prohibitions on the possession of

firearms by felons and the mentally ill.” Id. at 626.

After Heller, lower courts consistently deferred to

legislative judgment and upheld ahistorical firearm

laws. New York State Rifle & Pistol Ass’n v. Bruen, 597

U.S. 1 (2022).

Bruen overruled most of these decisions and

clarified the “standard for applying the Second

Amendment”:

When the Second Amendment’s plain text

covers

an

individual’s

conduct,

the

Constitution presumptively protects that

conduct. The government must then justify its

regulation by demonstrating that it is

consistent with the Nation’s historical

tradition of firearm regulation.

597 U.S. at 24.

A straightforward application of this method would

doom the possession prong of § 922(g)(1). The

individual right protected by the Second Amendment

“belongs to all Americans.” Heller, 554 U.S. at 581.

6

Subsection (g)(1) criminalizes and severely punishes

the very same conduct protected by the Amendment’s

text—the keeping of arms. See id. at 582–83

(interpreting the phrase “keep arms”). Under the

Heller-Bruen methodology, § 922(g)(1) should be

presumptively unconstitutional.

And there is nothing like § 922(g)(1) in the

American historical tradition of firearm regulation.

The Government has yet to identify “a wellestablished and representative historical analogue” to

§ 922(g)(1). Bruen, 597 U.S. at 30. On the contrary—

thorough historical research has failed to find any

American laws banning felons from possessing

weapons before the modern era: “[O]ne can with a good

degree of confidence say that bans on convicts

possessing firearms were unknown before World War

I.” C. Kevin Marshall, Why Can’t Martha Stewart

Have A Gun?, 32 Harv. J.L. & Pub. Pol'y 695, 708

(2009); see also Carlton F.W. Larson, Four Exceptions

in Search of a Theory: District of Columbia v. Heller

and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374

(2009) (finding “no colonial or state law” in 18th

Century America restricting “the ability of felons to

own firearms”). As the unqualified text of the Second

Amendment suggests, “American law recognized a

zone of immunity surrounding the privately owned

guns of citizens.” Robert H. Churchill, Gun

Regulation, the Police Power, and the Right to Keep

Arms in Early America: The Legal Context of the

Second Amendment, 25 L. & Hist. Rev. 139, 142 (2007)

(reviewing the first fourteen states’ codes from 1607 to

1815).

7

The first nationwide possession ban applying to

every type of firearm appeared in 1968—nearly two

centuries after ratification. The ban was “last-minute”

amendment to a sprawling bill that was “hastily

passed, with little discussion, no hearings and no

report.” United States v. Bass, 404 U.S. 336, 344

(1971). As James Madison recognized, Congress’s

“midnight precedents … ought to have little weight” in

constitutional analysis. James Madison to Judge

Roane, May 6, 1821, in 9 The Writings of James

Madison 61 (Gaillard Hunt, ed. 1910).

B. Statements in Heller, McDonald, and

Bruen suggest the opposite outcome.

Without performing the “exhaustive historical

analysis” necessary to resolve the question

definitively, Heller tentatively assumed that some

categories

of

firearm

laws

would

survive

constitutional scrutiny. One such category was

“longstanding prohibitions on the possession of

firearms by felons and the mentally ill.” 554 U.S. at

626. In his opinion for the plurality in McDonald v.

City of Chicago, 561 U.S. 742 (2010), Justice Alito

“repeated” Heller’s assumption but described it as an

“assurance[ ].” Id. at 786 (emphasis added). In Bruen,

Justice Kavanaugh (joined by the Chief Justice) again

repeated Heller’s dictum about felons. 597 U.S. at 81

(Kavanaugh, J., concurring).

Together, these statements suggest that many

members of the Court are comfortable with (at least

some) laws separating (at least some) felons from

8

firearms, notwithstanding the novelty of the law

within American historical tradition.

C. The unreasonably broad scope of

§ 922(g)(1) creates disagreement about asapplied Second Amendment challenges.

Despite a general sense that states may restrict the

firearm rights of many or even most felons, many

respected jurists have expressed discomfort with the

current scope of § 922(g)(1). The federal ban lasts for

life, regardless of any state laws restoring firearm

rights, and regardless of the nature of the prior

conviction. For many years, Congress allowed the

Executive Branch to make ad hoc exceptions to eh ban,

see 79 Stat. 788 (1965) and 18 U.S.C. § 925(c), but

Congress has refused to fund the process since 1992.

See United States v. Bean, 537 U.S. 71, 75 & n.3

(2002).

Before Bruen, the Third Circuit Court of Appeals

(and individual judges in other circuits) concluded

that § 922(g)(1) would be unconstitutional if applied

exactly as written. Binderup v. Attorney Gen., 836

F.3d 336, 351 (3d Cir. 2016) (“[U]pon close

examination of the Challengers’ apparently

disqualifying convictions, we conclude that their

offenses were not serious enough to strip them of their

Second Amendment rights.”); accord Kanter v. Barr,

919 F.3d 437, 451–69 (7th Cir. 2019) (Barrett, J.,

dissenting).

After Bruen, the en banc Third Circuit sustained

an as-applied challenge to the statute: “Because the

Government has not shown that our Republic has a

9

longstanding history and tradition of depriving people

like Range of their firearms, § 922(g)(1) cannot

constitutionally strip him of his Second Amendment

rights.” Range v. Attorney Gen., 69 F.4th 96, 106 (3d

Cir. 2023). The Eighth and Tenth Circuits have

adhered to pre-Bruen precedent rejecting facial and

as-applied challenges to § 922(g)(1). See Vincent v.

Garland, 80 F.4th 1197, 1202 (10th Cir. 2023) (“Bruen

did not indisputably and pellucidly abrogate” prior

circuit precedent); see also United States v. Jackson,

69 F.4th 495, 505–06 (8th Cir. 2023), reh’g denied, 85

F.4th 468 (8th Cir. 2023). The Seventh Circuit revived

a Second Amendment challenge and remanded the

case to the district court for additional historical

analysis. Atkinson v. Garland, 70 F.4th 1018, 1024

(7th Cir. 2023) (“Both sides should cast a wider net

and provide more detail about whatever history they

rely on.”).

D. This Court should grant certiorari and

explain whether § 922(g)(1) is to be

evaluated on its face or only as-applied,

and how that analysis should proceed.

Heller promised to “expound upon the historical

justifications for the exceptions we have mentioned if

and when those exceptions come before us.” 554 U.S.

at 635. Now is the time. The Court should grant

certiorari in this case or in one of the other fully

briefed petitions and explain where § 922(g)(1)

complies with the Second Amendment on its face and

as applied to someone who has never been convicted of

a violent felony.

10

Lower courts that uphold § 922(g)(1) rely on preBruen precedent and Supreme Court dicta. The Court

should undertake the “historical analysis” necessary

to evaluate the statute’s constitutionality.

II. THIS COURT SHOULD GRANT THE

PETITION AND ADDRESS WHETHER A

FIREARM’S PRIOR MOVEMENT ACROSS

STATE LINES MEETS THE MINIMUM

STATUTORY

AND

CONSTITUTIONAL

REQUIREMENTS FOR PROVING A NEXUS

WITH COMMERCE.

When the Founders decided to from a stronger

national government, they had to overcome objections

that Congress would eventually utilize its power to

disarm disfavored citizens. Federalists believed that

the enumeration of limited and specific powers would

keep Congress from disarming anyone. Heller, 554

U.S. at 599. Antifederalists worried that those limits

might not hold, and the Government would later

disarm citizens in favor of a standing army or

organized militia. The Second Amendment was

designed to allay those fears. Id. at 598–600. After

ratification of the Bill of Rights, Americans

understood that their right to keep arms had twofold

protection: “No clause in the Constitution could by any

rule of construction be conceived to give to congress a

power to disarm the people. … But if in any blind

pursuit of inordinate power,” Congress did attempt it,

“this amendment may be appealed to as a restraint.”

William Rawle, A View of the Constitution of the

United States 125–26 (2d ed. 1829). A nationwide

Congressional ban on keeping arms would have

11

scandalized the founding generation. Nothing like it

existed during the first 180 years of our nation’s

existence.

One of Congress’s “few and defined,” powers is the

power “To regulate Commerce with foreign Nations,

and among the several States, and with the Indian

Tribes.” U.S. Const., art. I, § 8. In United States v.

Lopez, 514 U.S. 549 (1995), this Court held that the

commerce power does not authorize regulation of a

purely local, non-economic activity like “possession of

a gun in a school zone.” Id. at 560. The original version

of the Gun-Free School Zones Act (“GFSZA”) exceeded

Congress’s commerce power. Id. at 561.

Unlike the original GFSZA, § 922(g)’s possession

prong requires proof of a nexus element—that the defendant possessed “in or affecting commerce” a firearm. Lopez assumed that this nexus element “would

ensure, through case-by-case inquiry, that the firearm

possession in question affects interstate commerce.”

Id. If that were true, then the element would often present “a complicated legal question” that would delight

“students of constitutional law.” Rehaif v. United

States, 139 S. Ct. 2191, 2207 (2019) (Alito, J., dissenting).

But this Court construed the nexus element in a

predecessor statute to reach any possession of a firearm if the firearm itself previously moved in interstate

or foreign commerce. Scarborough v. United States,

431 U.S. 563 (1977). The constitutional logic of Lopez

cannot be reconciled with the statutory holding of

Scarborough. Alderman v. United States, 562 U.S.

1163 (2011) (Thomas, J., dissenting from denial of certiorari); United States v. Seekins, 52 F.4th 988, 989

12

(5th Cir. 2022) (Ho, J., dissenting from denial of reh’g).

If Congress had the affirmative power to regulate who

could possess a musket if that musket (or any of its

components) had ever crossed a state line, then it had

the power to disarm the militia.

For most of the 20th Century—even as Congress

asserted a more robust role in regulating firearms

through its commerce power—this Court and the

Government seemed to understand that Congress

would not, did not, and could not directly ban any

Americans from possessing firearms. But in

Scarborough v. United States, 431 U.S. 563 (1977),

this Court considered the first, hastily passed

possession ban and found “no indication that Congress

intended to require any more than the minimal nexus

that the firearm have been, at some time, in interstate

commerce.” Id. at 575.

This Court has never considered whether that

same interpretation governs the post-1986 version of

§ 922(g)(1). The defendant in Scarborough argued that

possession required proof of a present connection to

commerce, whereas a past connection would satisfy

the nexus element for receipt. 431 U.S. at 569. The

Court rejected that argument because, at the time,

possession was prohibited only in a last-minute

addendum, without much care for verb tense, in an

entirely separate title. Id. at 569–70. But in 1986

Congress combined the prohibitions into a single

statute, with three different nexus elements

depending on the prohibited activity:

It shall be unlawful for any [prohibited]

person:

13

to ship or transport in interstate or foreign

commerce,

or possess in or affecting commerce, any

firearm or ammunition;

or to receive any firearm or ammunition which

has been shipped or transported in interstate or

foreign commerce

18 U.S.C. § 922(g) (emphases added). In current form,

there are two textual distinctions between the nexus

elements for “possess” and “receive.” First, for

possession, the Government must prove a nexus for

the possession itself; for receipt, the nexus element

modifies “firearm” or “ammunition.” Id. Second,

because the phrase “in or affecting commerce”

modifies the present-tense verb “possess,” the text

requires a present connection with commerce (even if

that connection is unspecified). For receipt, “the

proscribed act, ‘to receive any firearm,’ is in the

present tense, the interstate commerce reference is in

the present perfect tense, denoting an act that has

been completed.” Barrett v. United States, 423 U.S.

212, 216 (1976).

Whether Scarborough correctly or incorrectly

interpreted the 1968 possession ban, the principles of

statutory interpretation do not allow the Court to

disregard these distinctions in the modern form of the

crime.

And even if that interpretation of statutory

language or presumed congressional intent were

correct, the statute would exceed Congress’s power

under the Constitution. The movement of a durable

14

item like a firearm from one state to another may be

“commerce,” but the item does not remain “in

commerce” forever. There is “no better example of the

police power, which the Founders denied the National

Government and reposed in the States, than the

suppression of violent crime and vindication of its

victims.” United States v. Morrison, 529 U.S. 598, 618

(2000).

The current version of the possession ban makes

up more than 10% of federal prosecutions. See Emily

Tiry et al., Prosecution of Federal Firearms Offenses

2000-16 at 4–5, Tables 1 & 2 (Urban Institute Oct.

2021).2 Despite repeated calls for additional guidance,

this Court has never explained how the prevailing

interpretation of 18 U.S.C. § 922(g)’s possession-nexus

element is consistent with the original understanding

of the Constitution.

Under the prevailing interpretation of 18 U.S.C.

§ 922(g), the statute entirely bans millions of

Americans from keeping firearms in their homes and

automobiles on pain of ten or fifteen years in prison.

See Federal Bureau of Investigation, Active Records in

the NICS Indices (updated April 30, 2024) (reporting

more than 31 million entries of prohibited persons in

the national background-check database, including 5

million prohibited under § 922(g)(1)).

2

Available at

https://www.ojp.gov/pdffiles1/bjs/grants/254520.pdf (accessed

May 7, 2024).

15

CONCLUSION

This Court should grant the petition and set this

case for a decision on the merits.

Respectfully submitted,

________________________

J. Matthew Wright

Counsel of Record

FEDERAL PUBLIC

DEFENDER’S OFFICE

500 South Taylor Street

Unit 110.

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org

May 8, 2024