Petition for Writ of Certiorari — Mani Panoam Deng, Petitioner v. United States

Supreme Court briefAug 22, 2024

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NO. ____________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________

Mani Panoam Deng,

Petitioner,

-vs.United States of America,

Respondent.

_______________________________________________

On Petition for Writ of Certiorari to

the United States Court of Appeals for the Eighth Circuit

Petition for Writ of Certiorari

______________________________________________

Derek R. LaBrie

Counsel of Record

Zenor Law Firm, P.L.C.

111 East Grand Ave., Suite 400

Des Moines, Iowa 50309

Phone: (515) 650-9005

Fax: (515) 206-2654

derek@zenorlaw.com

ATTORNEY FOR PETITIONER

Questions Presented for Review

Under this Court’s Menna-Blackledge doctrine, where a challenger’s

constitutional “claim is that the [Government] may not convict [him] no matter

how validly his factual guilt is established[,] [t]he guilty plea…does not bar the

claim.” Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam) (emphasis

supplied). In 2018, this Court applied the doctrine to the Second Amendment,

reaffirming a defendant does “not relinquish his right to appeal the District

Court’s [Second Amendment] constitutional determinations simply by

pleading guilty.” Class v. United States, 583 U.S. 174, 178 (2018).

Accordingly, the first question presented is whether, in light of the

Menna-Blackledge doctrine, a defendant whose “constitutional claims…do not

contradict” his guilty plea and who maintains “he did what the indictment

alleged,” retains his right to appeal the denial of an as-applied Second

Amendment challenge after pleading guilty. Accord id. at 181–82.

The second question presented in this case is similar to the question

posed in No. 24-5089, Veasley v. United States, regarding the constitutionality

of 18 U.S.C. § 922(g)(3), a federal categorical firearm prohibition for “users” of

controlled substances. In N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.

1, 70–71 (2022), this Court emphasized the appropriate Second Amendment

analysis requires a faithful application of the Nation’s historical tradition. On

that point, and as it relates to Section 922(g)(3), the Government has been

consistent: “Prior to 1968, it appears Congress had not enacted a federal law

criminalizing the possession of firearms by addicts or drug users.” Government

Appellee Br., at 20 (8th Cir. Feb. 23, 2024). This Court’s recent decision in

Rahimi applied this historical traditions test to a different categorical firearm

prohibition, and highlighted a specific feature absent in Section 922(g)(3)—

prior judicial determination. E.g., United States v. Rahimi, 144 S. Ct. 1889,

1903 (2024) (“An individual found by a court to pose a credible threat…may be

temporarily disarmed….” (emphasis supplied)).

Accordingly, the second question presented in this Petition is whether,

consistent with Bruen and Rahimi, the federal firearm prohibition contained

in Section 922(g)(3) is unconstitutional facially and as-applied to marijuana

users by virtue of their drug use alone.

Whether 18 U.S.C. § 922(g)(3) is unconstitutionally vague for the failure

to clearly define the temporal nexus between drug use and firearm possession.

iii

Related Proceedings

United States District Court (S.D. Iowa):

United States v. Deng, No. 4:23-cr-00041-SMR-WPK-1 (Nov. 17, 2023)

United States Court of Appeals (8th Cir.):

United States v. Deng, No. 23-3545 (June 20, 2024)

Table of Contents

Questions Presented for Review ................................................................................... ii

Related Proceedings...................................................................................................... iv

Table of Contents ........................................................................................................... v

Table of Authorities ..................................................................................................... vii

Opinion Below ................................................................................................................ 1

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

Constitutional and Statutory Provisions Involved ....................................................... 1

Statement of the Case ................................................................................................... 2

Reasons for Granting the Writ ...................................................................................... 5

The Menna-Blackledge doctrine controls (Question Presented No. 1) ........ 6

A. Substantive constitutional challenges survive guilty pleas if they do

not contradict an admission of factual guilt ...................................... 6

B. There is no appeal waiver in this case ............................................. 10

C. Whatever test is appropriate, the Eighth Circuit’s “jurisdiction”

misnomer is not it ............................................................................. 11

II.

Users of drugs were never historically subjected to the categorical

prohibition on firearm ownership (Question Presented No. 2) .................. 17

A. “The label is not what matters.” ....................................................... 18

B. The historical record is set and courts are divided .......................... 23

III.

That 18 U.S.C. § 922(g)(3) requires a “judicially-created temporal nexus”

seen nowhere in the statute renders it unconstitutionally vague (Question

Presented No. 3)........................................................................................... 26

IV.

In the alternative, this Court should remand for full consideration of the

issues presented herein ............................................................................... 28

Conclusion .................................................................................................................... 28

Appendix

Opinion of the United States Court of Appeals for the Eighth Circuit ..................... 1a

District Court Order Re: Motion to Dismiss (D. Ct. Doc. 41)..................................... 5a

Judgment of the United States District Court for the Southern District of Iowa (D.

Ct. Doc. 61) ................................................................................................................ 16a

Order of the United States Court of Appeals for the Eighth Circuit Denying Petition

for Rehearing and Rehearing En Banc ..................................................................... 23a

Table of Authorities

CASES

Bell v. United States, 349 U.S. 81 (1955) .................................................................... 27

Blackledge v. Perry, 417 U.S. 21 (1974) .................................................................... 6, 7

Brady v. United States, 397 U.S. 742 (1970) .............................................................. 10

Bucklew v. Precythe, 587 U.S. 119 (2019) ................................................................... 18

Class v. United States, 583 U.S. 174 (2018) ........................................................passim

Dist. of Columbia v. Heller, 554 U.S. 570 (2008) .................................................. 22, 24

In re Sealed Case, 936 F.3d 582 (D.C. Cir. 2019) ......................................................... 9

Jackson v. United States, No. 23-6170, 2024 WL 3259675

(U.S. July 2, 2024) (mem.) .................................................................................. 4

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ........................................................ 18, 22

Johnson v. United States, 576 U.S. 591 (2015)............................................... 21, 27, 28

Marbury v. Madison, 5 U.S. 137 (1803) ........................................................................ 9

Menna v. New York, 423 U.S. 61 (1975) (per curiam) ...................................... ii, 5, 6, 8

Napue v. Illinois, 360 U.S. 264 (1959) ........................................................................ 22

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) ........................passim

Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022) ...................................................... 15

Schall v. Martin, 467 U.S. 253 (1984) ......................................................................... 21

Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947 (1984) ................. 21

Snyder v. Massachusetts, 291 U.S. 97 (1934) ............................................................. 21

Sodders v. Parratt, 693 F.2d 811 (8th Cir. 1982) ....................................................... 12

Tollett v. Henderson, 411 U.S. 258 (1973)............................................................... 7, 10

vii

United States v. Bacon, 884 F.3d 605 (6th Cir. 2018) ................................................ 16

United States v. Bramer, 832 F.3d 908 (8th Cir. 2016) .............................................. 27

United States v. Broce, 488 U.S. 563 (1989) ................................................................. 8

United States v. Connelly, 668 F. Supp. 3d 662 (W.D. Tex. 2023) ............................. 25

United States v. Daniels, 77 F.4th 337 (5th Cir. 2023) .............................................. 25

United States v. Daniels, No. 23-376, 2024 WL 3259662

(U.S. July 2, 2024) (mem.) .................................................................................. 4

United States v. Deng, 104 F.4th 1052 (8th Cir. 2024) .................... 1, 4, 12, 13, 16, 27

United States v. De Vaughn, 694 F.3d 1141 (10th Cir. 2012) .................................... 15

United States v. Flores, 995 F.3d 214 (D.C. Cir. 2021)............................................... 16

United States v. Gil, No. 23-50525, 2024 WL 2186916

(5th Cir. May 15, 2024) (per curiam) (unpublished) ........................................ 16

United States v. Harrison, 654 F. Supp. 3d 1191 (W.D. Okla. 2023)......................... 25

United States v. Jackson, 85 F.4th 468 (8th Cir. 2023).............................................. 10

United States v. Morgan, 230 F.3d 1067 (8th Cir. 2000)...................................... 12, 13

United States v. Nunez-Hernandez, 43 F.4th 857 (8th Cir. 2022) ................. 12, 14, 15

United States v. Olano, 507 U.S. 725 (1993) .............................................................. 10

United States v. Peppers, 899 F.3d 211 (3d Cir. 2018) ............................................... 16

United States v. Perez-Paz, 3 F.4th 120 (4th Cir. 2021) ............................................. 15

United States v. Rahimi, 144 S. Ct. 1889 (2024) .................................................passim

United States v. Salerno, 481 U.S. 739 (1987) ............................................................ 19

United States v. Seay, 620 F.3d 919 (8th Cir. 2010)................................................... 14

United States v. Stevens, 559 U.S. 460 (2010) ...................................................... 19, 21

viii

United States v. Tucker, No. 23-2758, 2024 WL 3634232

(8th Cir. Aug. 2, 2024) (per curiam) (unpublished) ......................................... 17

United States v. Turner, 842 F.3d 602 (8th Cir. 2016) ......................................... 26, 27

United States v. Veasley, 98 F.4th 906 (8th Cir. 2024)......................... 4, 15, 19, 22, 26

Weisberg v. Minnesota, 29 F.3d 1271 (8th Cir. 1994) ................................................. 12

Wesberry v. Sanders, 386 U.S. 1 (1964) ........................................................................ 9

Wolfe v. Virginia, 139 S. Ct. 790 (2019) (mem.) ......................................................... 17

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ................................................. 20

UNITED STATES CONSTITUTION AND STATUTES

U.S. CONST. art. I § 9 cl. 3............................................................................................ 11

U.S. CONST. amend. II ....................................................................................... 1, 20, 22

18 U.S.C. § 922(g)(1) .............................................................................................. 22, 24

18 U.S.C. § 922(g)(3) .............................................................................................passim

18 U.S.C. § 922(g)(4) .............................................................................................. 22, 24

18 U.S.C. § 922(g)(8) .............................................................................................. 22, 24

18 U.S.C. § 3231 ............................................................................................................. 2

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

COURT RULES

Supr. Ct. R. 10.......................................................................................................... 5, 23

OTHER AUTHORITY

JAMES MADISON, FEDERALIST NO. 51 (1788) ............................................................... 23

Opinion Below

Petitioner, Mr. Mani Panoam Deng, respectfully prays that a writ of certiorari

issue to review the judgment of the United States Court of Appeals for the Eighth

Circuit in Case No. 23-3545 entered on June 20, 2024. United States v. Deng, 104

F.4th 1052 (8th Cir. 2024), rehearing and rehearing en banc denied July 17, 2024.

Rehearing and rehearing en banc was denied July 17, 2024.

Jurisdiction

The panel of the Eighth Circuit Court of Appeals entered its judgment on June

20, 2024. The Eighth Circuit Court of Appeals denied rehearing and rehearing en

banc on July 17, 2024. Jurisdiction of this court is invoked under 28 U.S.C. § 1254.

Constitutional and Statutory Provisions Involved

This case involves the application of the following constitutional and statutory

provisions: U.S. CONST. amend. II; 18 U.S.C. § 922(g)(3).

U.S. CONST. amend. II

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.

18 U.S.C. § 922(g)(3)

(g) It shall be unlawful for any person—

…

(3) who is an unlawful user of or addicted to any controlled

substance (as defined in section 102 of the Controlled Substances

Act (21 U.S.C. § 802));

…

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.

Statement of the Case

Petitioner Mani Deng respectfully requests a writ of certiorari issue to review

the Eighth Circuit’s affirmance of the denial of his pre-trial Motion to Dismiss. See

D. Ct. Doc. 20 (Motion to Dismiss). In early 2021, upon returning home from a workstint as a fisherman in Dutch Harbor, Alaska, Mr. Deng learned that his brother had

been murdered in Lincoln, Nebraska. See PSR ¶ 56. As a coping mechanism, he

turned to increased marijuana use. Id. ¶ 71. Also in response, Mr. Deng sought to

obtain firearms for his and his family’s self-defense.

Accordingly, Mr. Deng successfully completed the firearm training necessary

to purchase a firearm, obtained a Firearm Purchase Certificate and Concealed Carry

Permit, and purchased two firearms from a licensed dealer in Omaha, Nebraska. In

January 2022, law enforcement executed a search warrant at Mr. Deng’s temporary

shared residence. There, he was apprehended and one of his firearms seized. That

day, in a post-Miranda interview, Mr. Deng admitted to marijuana use. Relevant

here, on March 22, 2023, Petitioner Mani Deng was charged by indictment in the

Southern District of Iowa, having jurisdiction under 18 U.S.C. § 3231, with possession

of a firearm as an unlawful marijuana user. D. Ct. Doc. 1 (Indictment); 18 U.S.C. §

922(g)(3). On April 13, 2023, Mr. Deng was arraigned on the charge. D. Ct. Doc. 13

(Minute Entry).

Less than a week later, on April 19, 2023, Petitioner Deng moved to dismiss

the indictment as an impermissible infringement on his Second Amendment right

and as unconstitutionally vague. D. Ct. Doc. 20-1 (Brief in Support of Motion to

Dismiss). On April 26, 2023, the Government resisted, conceding “[a] review of early

colonial laws has not revealed any statutes that prohibited possession by unlawful

drug users.” D. Ct. Doc. 25, at 12.1 Prior to Mr. Deng filing his reply brief, the District

Court requested supplemental briefing on the difference (if any) of the court’s role on

a facial challenge versus an as-applied challenge. D. Ct. Doc. 26 (Text Order). Once

the briefing and supplemental briefing was completed, the District Court denied Mr.

Deng’s Motion to Dismiss. D. Ct. Doc. 41 (Order).

Following the denial of his Motion, Mr. Deng pled guilty without a written plea

agreement. See D. Ct. Doc. 49 (Order Adopting Guilty Plea). There was no appeal

waiver. At the change of plea hearing, Mr. Deng admitted to the facts of the charge—

he was an unlawful user of marijuana and purchased two firearms following his

brother’s murder. See Change of Plea Tr., at 25:7 – 28:17 (D. Ct. Doc. 70). Mr. Deng

never disputed these factual predicates—nor does he here.

On appeal to the Eighth Circuit, Mr. Deng maintained that “whether someone

falls within the grasp of a criminal statute has no bearing on whether that statute is

constitutional.” Defendant’s Appellant Br., at 45–46 (8th Cir. Dec. 20, 2023). Mr. Deng

maintained both facial and as-applied Second Amendment challenges to Section

922(g)(3). Specifically, Mr. Deng submits the statute of conviction is unconstitutional

under the Second Amendment, as it lacks the necessary historical pedigree required

1 This concession was later repeated on appeal: “Prior to 1968, it appears Congress

had not enacted a federal law criminalizing the possession of firearms by addicts or

drug users.” Government Appellee Br., at 20 (8th Cir. Feb. 23, 2024).

by Bruen.2 During the pendency of the appeal, however, a different Eighth Circuit

panel decided United States v. Veasley, 98 F.4th 906 (8th Cir. 2024), petition for writ

of cert. docketed, No. 24-5089 (U.S. July 16, 2024). Veasley held Section 922(g)(3) to

be facially constitutional, a position Mr. Deng continues to dispute on appeal. Mr.

Deng’s Eighth Circuit panel held it was bound by Veasley on his facial challenge. See

Op., at 2, United States v. Deng, 104 F.4th 1052, 1054 (8th Cir. 2024) (“That decision

binds us here.”). With respect to Mr. Deng’s as-applied challenge—a claim not raised

in Veasley—the panel found Mr. Deng “waived it by pleading guilty.” Id.

The very next day after Mr. Deng’s panel decision was released, this Court

decided United States v. Rahimi, 144 S. Ct. 1889 (2024). Mr. Deng timely petitioned

for panel and en banc rehearing, on the grounds that the panel did not have the

benefit of Rahimi, and that the panel otherwise erred in declining to analyze his asapplied challenge. As to the former, this Court has remanded the only other preRahimi case confronting this constitutional question, instructing the lower court to

consider anew in light of Rahimi. United States v. Daniels, No. 23-376, 2024 WL

3259662 (U.S. July 2, 2024) (mem.). This Court has also remanded with the same

instruction a different Eighth Circuit case upholding the federal felon-in-possession

prohibition. Jackson v. United States, No. 23-6170, 2024 WL 3259675 (U.S. July 2,

2024) (mem.). Nevertheless, on July 17, 2024, the Eighth Circuit denied in full Mr.

Deng’s petition for panel and en banc rehearing.

2 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).

This Petition follows. This Court should grant Mr. Deng’s Petition for Writ of

Certiorari and reverse the Eighth Circuit’s decision in three non-exclusive respects.

First, the Eighth Circuit should not have declined to review Mr. Deng’s as-applied

constitutional challenge to Section 922(g)(3). Under the Menna-Blackledge doctrine,

a constitutional claim challenging the authority of the Government to hale Petitioner

into court is not “waived” or otherwise foreclosed merely by admitting factual guilt.

Second, the statute itself is unconstitutional both facially and as-applied to

marijuana users. As to the facial challenge, Veasley is wrongly decided. As to the asapplied challenge, Veasley all but admits Section 922(g)(3) would be unconstitutional

as applied to marijuana users—but did not confront such a challenge.3 Third, the

statute of conviction is unconstitutionally vague. Accordingly, Mr. Deng respectfully

submits this Court should grant certiorari and reverse.

Reasons for Granting the Writ

The United States Court of Appeals for the Eighth Circuit decided important

issues of federal law not settled by this Court (constitutionality of 18 U.S.C. §

922(g)(3)) or otherwise conflicting with relevant Supreme Court decisions (as-applied

constitutional challenges are not foreclosed by admitting factual guilt). See Supr. Ct.

R. 10(a), (c). First, the appellate panel decided a question inapposite to the authority

of this Court, including Class v. United States, 583 U.S. 174 (2018); Menna v. New

3 Veasley never made an as-applied constitutional challenge on appeal. Although the

question presented in Veasley is similar, Veasley does not completely resolve this case.

Accordingly, Mr. Deng respectfully submits that this Court should grant certiorari in

this case, at least in addition to Veasley, No. 24-5089.

York, 423 U.S. 61 (1975) (per curiam); and Blackledge v. Perry, 417 U.S. 21 (1974), in

declining to treat Petitioner’s as-applied Second Amendment challenge (Question

Presented No. 1). Second, the historical pedigree of firearm restrictions does not

support the prohibition, first codified in 1968, presently found at 18 U.S.C. § 922(g)(3)

(Question Presented No. 2). Accord Bruen, 597 U.S. at 29. Third, the courts had to

add a judicial temporal nexus to Congress’s statutory text, rendering it

unconstitutionally vague (Question Presented No. 3). Fourth, and alternatively, this

Court should grant certiorari and summarily remand this case to the Eighth Circuit

for proper analysis of Petitioner’s facial and as-applied challenges in light of Rahimi

(Questions Presented Nos. 1 and 2).

The Menna-Blackledge doctrine controls. (Question Presented No. 1)

This Court’s precedent is clear: “[w]here the State is precluded by the United

States Constitution from haling a defendant into court on a charge, federal law

requires that conviction on the charge be set aside even if the conviction was entered

pursuant to a counseled plea of guilty.” Menna, 423 U.S. at 62. The Eighth Circuit

applies a different standard, not true to Menna. This Court should grant certiorari

and reverse the Eighth Circuit’s practice of treating all as-applied challenges as per

se “waived” by a guilty plea—even where there is no appeal waiver.

Substantive constitutional challenges survive guilty pleas if

they do not contradict an admission of factual guilt.

The Menna-Blackledge doctrine should have controlled the Eighth Circuit’s

decision here. The appellate panel erred by applying something else. In 1974, this

Court confronted the question of when a guilty plea per se waives a constitutional

claim. Blackledge v. Perry, 417 U.S. 21, 29 (1974) (“The remaining question is

whether, because of his guilty plea to the felony charge in the Superior Court,

[defendant] is precluded from raising his constitutional claims….”). The Blackledge

Court drew a distinction between “the right not to be haled into court at all upon the

felony charge” and “antecedent constitutional violations” of a factual or prophylactic

nature. Id. at 30. The Court there expressly rejected expansion of the Tollett v.

Henderson, 411 U.S. 258 (1973) line of cases.4 Accordingly, the Court recognized that

Tollett does not control the question here—Tollett applies only to constitutional

infirmities antecedent to the defendant’s admission of factual guilt. Blackledge, 417

U.S. at 31 (“[I]t follows that his guilty plea did not foreclose him from attacking his

conviction….”).

The following year, this Court reaffirmed that very holding in a per curiam

decision:

A guilty plea, therefore, simply renders irrelevant those constitutional

violations not logically inconsistent with the valid establishment of

factual guilt and which do not stand in the way of conviction if factual

4 Tollett was best understood, according to Blackledge, as “complaining of ‘antecedent

constitutional violations.’ ” Blackledge, 417 U.S. at 30 (quoting Tollett, 411 U.S. at

266, 267). In Tollett, the constitutional challenger and habeas petitioner alleged the

state grand jury process systemically excluded racial minorities. Tollett, 411 U.S. at

259. The Court ultimately held that such a technical or factual violation was

foreclosed by pleading guilty. Id. at 266. Notably, the Court did not find waiver

because the factual predicates to waiver were not available to the petitioner at the

time of his guilty plea. Id. (“[T]he Court of Appeals was undoubtedly correct in

concluding that there had been no such waiver here.”). Moreover, this Court was

careful to discuss the Tollett claim in terms of “the facts giving rise to the

constitutional claims” and constitutional deprivations due to the failure of counsel to

“pursue[] a certain factual inquiry” or whether such a claim “might be factually

supported.” Id. at 266, 267, 268 (emphases supplied). The import, of course, is Tollett

did not confront a legal challenge to the sovereign’s authority to prosecute at all.

guilt is validly established. Here, however, the claim is that the State

may not convict petitioner no matter how validly his factual guilt is

established. The guilty plea, therefore does not bar the claim.

Menna, 423 U.S. at 62 n.2. Stated differently, “a plea of guilty to a charge does not

waive a claim that…the charge is one which the State may not constitutionally

prosecute.” Id. Mr. Deng’s Second Amendment constitutional challenge—whether

cast as facial or as-applied—falls squarely within Menna.

The Menna-Blackledge doctrine remains binding law. It was next tested in

United States v. Broce, 488 U.S. 563 (1989). The Broce Court correctly noted that in

both Blackledge and Menna, the constitutional questions were able to be “resolved

without any need to venture beyond” the indictment because “the concessions implicit

in the defendant’s guilty plea were simply irrelevant.” Id. at 575. Because the

claimants in Broce “[could ]not prove their claim without contradicting those

indictments,” however, the Menna-Blackledge doctrine was inapplicable. Id. at 576.

Most recently, this Court applied the Menna-Blackledge doctrine to a Second

Amendment constitutional challenge. In Class v. United States, the petitioner pled

guilty to possession of a firearm on Capitol grounds after his Second Amendment

motion to dismiss was denied. 583 U.S. 174, 176 (2018). Class appealed the denial of

his motion, but the court of appeals—much like the panel in this case—held the guilty

plea waived such a challenge. Id. at 178. This Court reversed and unambiguously

held “Class did not relinquish his right to appeal the District Court’s constitutional

determinations simply by pleading guilty.” Id. This holding continues to bind.

In reaching its conclusion, this Court emphasized what a plea of guilty actually

signifies:

“The plea of guilty is, of course, a confession of all the facts charged in

the indictment, and also of the evil intent imputed to the defendant. It

is a waiver also of all merely technical and formal objections of which

the defendant could have availed himself by any other plea or motion.

But if the facts alleged and admitted do not constitute a crime against

the laws of the [sovereign], the defendant is entitled to be discharged.”

Id. at 180 (quoting Commonwealth v. Hinds, 101 Mass. 209, 210 (Mass. 1869)). And,

as distinguished from Broce, Class’s claims did “not contradict the terms of the

indictment or the written plea agreement.” Id. at 181. “They are consistent with

Class’ knowing, voluntary, and intelligent admission that he did what the indictment

alleged.” Id.5

The Menna-Blackledge doctrine tracks closely with the fundamental basics of

judicial review. See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“[T]he constitution

controls any legislative act repugnant to it….”); see also Wesberry v. Sanders, 376 U.S.

1, 48 (1964) (Harlan, J., dissenting) (“This Court, no less than all other branches of

the Government, is bound by the Constitution.”). Even if a defendant could “consent”

to his conviction by guilty plea, courts have an independent obligation to ensure that

their act of convicting is not “repugnant to” the Constitution by convicting under an

unconstitutional statute. Whatever its underpinnings, the Eighth Circuit was bound

to apply the Menna-Blackledge doctrine as pronounced by this Court. That the Eighth

5 Other Circuits have understood a key standard to be whether the constitutional

challenge requires reneging on factual admissions. E.g., In re Sealed Case, 936 F.3d

582, 589 (D.C. Cir. 2019) (finding a constitutional challenge foreclosed because

“[a]spects of Appellant’s as-applied challenge ignore or revise facts to which he

stipulated [in his guilty plea]”). Petitioner’s constitutional challenge takes no issue

with his factual admissions.

Circuit has ignored this Court’s binding precedent and charted its own course is error

and warrants certiorari. E.g., United States v. Jackson, 85 F.4th 468, 469 (8th Cir.

2023) (Stras, J., dissenting from the denial of rehearing en banc) (“It should go

without saying that we have to follow what the Supreme Court says, even if we said

something different before.”).

There is no appeal waiver in this case.

Even if the Eighth Circuit panel’s decision was not discordant with binding

authority (it was), the decision is contrary to a traditional waiver analysis.6 “[W]aiver

is the ‘intentional relinquishment or abandonment of a known right.’ ” United States

v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938)). “Waivers of constitutional rights not only must be voluntary but must be

knowing, intelligent acts….” Brady v. United States, 397 U.S. 742, 748 (1970).

Petitioner’s case is somewhat unique in that it lacks a written appeal waiver.

Cf. Class, 583 U.S. at 176–77 (discussing the waived appellate rights and expressly

retained appellate rights in the defendant’s written plea agreement). As was argued

below, requiring a defendant obtain an exception to an ‘appeal waiver’ “put[s] the

appealability of constitutional challenges in the hands of the prosecutors.” Petitioner’s

Petition for Rehearing, at 3 (8th Cir. June 25, 2024). And, what use would appeal

6 The Class dissent proposes a different test grounded in the waiver doctrine. See

Class, 583 U.S. at 186 (Alito, J., dissenting) (“And if no law prevents waiver, the final

question is whether the defendant knowingly and intelligently waived the right to

raise the claim on appeal.”). Even under a waiver analysis—which even the appellate

panel failed to conduct below—the result would be the same here as prescribed by the

Class majority. See also Tollett, 411 U.S. at 266 (finding no waiver because the factual

and legal predicates did not exist at the time of the guilty plea).

waivers serve if the simple fact of pleading guilty waived the claims anyways? Why

does the Government insist on the appeal waiver in nearly every written plea

agreement if they are meaningless or unnecessary?

Mr. Deng’s guilty plea did one thing—it focused the case to the actual live

dispute; this case was never about the facts, it was simply about the law. Accordingly,

even were this Court to decide the Menna-Blackledge doctrine no longer controls

(though, it certainly controlled when the Eighth Circuit declined to participate in the

question below), the waiver analysis yields the same result here. This is particularly

true because of the fact that Class exists as written. Class is the law unless and until

it is overruled (though it should not be). Class prevents any reasonable conclusion

that Petitioner knowingly waived any right. He is not to be charged with anticipating

a material change in the law. Whether under the Class majority approach, founding

judicial review principles, or a waiver analysis, there is no authority for retroactively

stripping Petitioner of his right to challenge Congressional overstepping.7

Whatever test is appropriate, the Eighth Circuit’s “jurisdiction”

misnomer is not it.

Of the three foregoing alternative approaches this Court has taken (whether

Menna-Blackledge, Marbury judicial review principles, or the Class dissent’s waiver

inquiry), the Eighth Circuit faithfully applied none of them. Instead, it contrived a

different test: “jurisdiction.” The Eighth Circuit has since admitted, however, that

when it says “jurisdiction,” it does not actually mean “jurisdiction.” See, e.g., Op., at

7 See U.S. CONST. art. I § 9 cl. 3 (“No Bill of Attainder or ex post facto Law shall be

passed.”).

2, Deng, 104 F.4th at 1054; United States v. Nunez-Hernandez, 43 F.4th 857, 860 (8th

Cir. 2022) (“Sometimes the word ‘jurisdiction’ has a special meaning. In Seay, for

example, it referred to matters that have nothing to do with subject-matter

jurisdiction, like the limited class of defenses that survive a guilty plea.”); United

States v. Morgan, 230 F.3d 1067, 1071 n.1 (8th Cir. 2000) (Bye, J., specially

concurring) (“It’s worth noting that this exception is not jurisdictional in character,

although many courts have erred in this direction.” (emphasis in original)).

The Eighth Circuit’s “jurisdiction” sideroad began with a 1994 Circuit decision

which has become the basis for all subsequent Eighth Circuit authority on this issue.

The problem is, in that case, the challenge was made by a habeas petitioner

challenging state court jurisdiction. Weisberg v. Minnesota, 29 F.3d 1271, 1280 (8th

Cir. 1994) (“Thus, Weisberg can assert his second claim, that the criminal complaint

was insufficient, only to the extent it challenges the state trial court’s jurisdiction.”).

Of course, this is consistent with the Menna-Blackledge doctrine. Class, 583 U.S. at

181 (permitting challenges only where the indictment and factual admissions in the

guilty plea are not disputed).

Weisberg, however, conducted a comprehensive survey of authority on when a

constitutional challenge might survive a guilty plea, and it cited circumstances

identical to Petitioner’s here: acknowledging a “guilty plea does not foreclose [an]

attack on [the] constitutionality of [the] criminal statute under which defendant was

charged.” Weisberg, 29 F.3d at 1280; Sodders v. Parratt, 693 F.2d 811, 812 (8th Cir.

1982) (“[T]his Circuit and others have indicated that a guilty plea does not preclude

a defendant from claiming that the statute under which he pleaded is

unconstitutional.”). In that way, the subsequent distortion of Weisberg, and

application against Petitioner below, is untethered to either Supreme Court or Eighth

Circuit precedent.

Six years after Weisberg, the Eighth Circuit quoted it at length, cited to and

analyzed both Blackledge and Menna, and construed the foregoing to permit only a

facial constitutional challenge—but foreclose an as-applied challenge. Morgan, 230

F.3d at 1071 (majority). Of course, neither Blackledge, Menna, nor Class made any

distinction between facial and as-applied challenges. Indeed, it appears the challenge

in Class was an as-applied Second Amendment challenge. See Class, 583 U.S. at 196

n.4 (Alito, J., dissenting) (“Class’s Second Amendment argument is that banning

firearms in the Maryland Avenue parking lot of the Capitol Building goes too far, at

least as applied to him specifically.”). The Morgan special concurrence recognized the

contortion as incompatible with history and the Constitution: “[s]urely it offends our

system of ordered liberty to permit a prisoner to remain incarcerated when the

statute under which he was convicted exceeded Congress’ lawmaking power to enact.”

Morgan, 230 F.3d at 1072 (Bye, J., specially concurring). Morgan commenced the

divergence—still unresolved—between the Eighth Circuit and this Court. To wit,

Morgan formed the basis for the appellate panel’s declination here. See Op., at 2,

Deng, 104 F.4th at 1054 (citing to and relying on Morgan).

The misguided Morgan proposition was re-asserted ten years later in dicta.

The Eighth Circuit considered, in dicta, that as-applied Second Amendment

constitutional challenges are foreclosed by a guilty plea because they “are not

jurisdictional.” United States v. Seay, 620 F.3d 919, 922 n.3 (8th Cir. 2010) (citing

Morgan, 230 F.3d at 1071). But, Seay repeated that “if [defendant] was correct [about

the unconstitutionality of the challenged statute], then he should never have been

‘haled into court’ at all, and his conviction must be reversed. Such challenges to the

court’s jurisdiction may be pursued despite a defendant’s guilty plea.” Id. at 923.

Ultimately, the Court permitted the facial challenge before it. Id. (“[W]e hold that

Seay’s Second Amendment challenge is jurisdictional and, therefore, survives his

guilty plea.”). Seay never confronted an as-applied challenge.

Despite the footnoted dicta in Seay, which originated with Morgan and directly

contradicts the above-the-line text, this distorted “jurisdiction” analysis continued to

fester. It was next applied when the Eighth Circuit confronted an equal protection

challenge to a criminal reentry statute after a guilty plea. Nunez-Hernandez, 43 F.4th

at 858–59. The Court nevertheless directly disputed Seay’s “jurisdiction” contrivance,

by noting “the unconstitutionality of the statute under which the proceeding is

brought does not oust a court of jurisdiction.” Id. at 860 (quoting United States v.

Williams, 341 U.S. 58, 65, 71 (1951)); see also id. (“But these rulings ‘are patently not

jurisdictional in the strict sense.’ ” (quoting Kircher v. Putnam Funds Tr., 547 U.S.

633, 642 (2006))). Still, rooted in Seay and Morgan despite questioning the underlying

reasoning, it maintained that only facial challenges are permitted. Id.

Finally, most recently, in Veasley (pending petition for certiorari), the Eighth

Circuit confronted a facial challenge, which the Circuit proclaimed was “the only type

still available to [the defendant],” again relying on the Morgan line of cases. Veasley,

98 F.4th at 909. Whether Veasley’s remarks constitute dicta or an advisory opinion,

neither bound Petitioner’s appellate panel. “[D]icta, even if repeated, does not

constitute precedent….” Oklahoma v. Castro-Huerta, 597 U.S. 629, 645 (2022).

Nevertheless, in Veasley’s case, it relied on the same cases above: Nunez-Hernandez

and Seay. Veasley, 98 F.4th at 908. Again, however, Veasley essentially conceded why

this type of claim falls within Class: “An as-applied challenge would focus on Veasley:

is applying ‘the regulation’ to his conduct ‘[in]consistent with his Nation’s historical

tradition of firearm regulation’?” Id. at 909 (emphasis and alteration in original,

quotation omitted). Nowhere does such a legal question contradict, or even implicate,

the admissions of factual guilt. Accord Class, 583 U.S. at 181 (majority). In fact, that

there is no dispute of the facts makes such a challenge even more appropriate for

review on appeal.

Where the Eighth Circuit has struggled, other circuits have not been troubled

with Menna-Blackledge. E.g., United States v. De Vaughn, 694 F.3d 1141, 1153 (10th

Cir. 2012) (noting Morgan “conflates the two distinct lines of cases” and suggesting

the appropriate recitation would be “[a] guilty plea waives all defenses except those

that go to the court’s subject-matter jurisdiction and the narrow class of

constitutional claims involving the right not be haled into court”).8 Post-Class, this

contingent has grown. E.g., United States v. Perez-Paz, 3 F.4th 120, 125 & n. (4th Cir.

The Eighth Circuit subsequently cited De Vaughn with approval. See NunezHernandez, 43 F.4th at 860.

2021) (“[A] guilty plea does not ‘bar[] a federal criminal defendant from challenging

the constitutionality of the statute of conviction on direct appeal.’ ” (internal

quotation omitted)); United States v. Flores, 995 F.3d 214, 224 (D.C. Cir. 2021)

(holding that because the district court constitutionally lacked the “power to convict

and sentence” the defendant, the guilty plea did not bar the constitutional claim);

United States v. Peppers, 899 F.3d 211, 225 n.7 (3d Cir. 2018) (finding Class consistent

with prior Third Circuit precedent); United States v. Bacon, 884 F.3d 605, 610 (6th

Cir. 2018) (permitting constitutional challenges to firearm legislation on appeal after

guilty plea); United States v. Gil, No. 23-50525, 2024 WL 2186916, at *2 (5th Cir. May

15, 2024) (per curiam) (unpublished) (holding that, despite a guilty plea without a

plea agreement, the defendant “preserved his right to challenge the constitutionality

of [18 U.S.C. § 922(g)(3)] on direct appeal by raising the challenge in the district court

in his motion to dismiss”).

In short, the Eighth Circuit has split from other Circuits and the binding word

of this Court, by instead finding itself tied to a distorted “jurisdiction” contrivance.9

Compare Op., at 2, Deng, 104 F.4th at 1054 (“Facial constitutional challenges fit the

bill; as-applied challenges to § 922(g)(3) do not.” (citations omitted)), with Class, 583

U.S. at 176 (“In our view, a guilty plea by itself does not bar that appeal.”). To the

9 The irony is not lost, however, in Mr. Deng’s appellate panel analyzing his “as-

applied” vagueness challenge despite his guilty plea. See Op., at 4, Deng, 104 F.4th

at 1055 (“Because he has failed to show that § 922(g)(3) is unconstitutionally vague

as applied to him, he cannot mount a facial challenge.”). The panel provided no

explanation for the disparate treatment.

extent Class requires further clarification, certiorari is still warranted.10 Accordingly,

this Court should grant certiorari.11

II.

Users of drugs were never historically subjected to the categorical

prohibition on firearm ownership. (Question Presented No. 2)

First enacted 177 years after the ratification of the Second Amendment,

Congress codified a blanket, categorical prohibition on the mere ownership of

firearms for drug users. 18 U.S.C. § 922(g)(3). The Government has been consistent

in this case; there is no historical analogue. E.g., D. Ct. Doc. 25, at 12 (“A review of

early colonial laws has not revealed any statutes that prohibited possession by

unlawful drug users.”); Government Appellee Br., at 20 (8th Cir. Feb. 23, 2024) (“Prior

to 1968, it appears Congress had not enacted a federal law criminalizing the

possession of firearms by addicts or drug users.”). Under this Court’s test, that

matters. Bruen, 597 U.S. at 17 (“To justify its regulation, the government may not

simply posit that the regulation promotes an important interest. Rather, the

government must demonstrate that the regulation is consistent with this Nation’s

10 Indeed, this question is frequently arising. Already the Eighth Circuit has relied

on the panel decision below in rejecting as barred an as-applied constitutional

challenge. E.g., United States v. Tucker, No. 23-2758, 2024 WL 3634232, at *2 (8th

Cir. Aug. 2, 2024) (per curiam) (unpublished).

11 Mr. Deng respectfully submits this Court should also grant certiorari on his second

question presented: whether 18 U.S.C. § 922(g)(3) is unconstitutional under the

Second Amendment. This Court should, he submits, grant certiorari on both

questions and resolve with finality these two important, and ripe, issues of law. To

the extent the Court is inclined, however, it may grant certiorari and summarily

remand to the United States Court of Appeals for the Eighth Circuit to analyze Mr.

Deng’s “as-applied” constitutional challenge. E.g., Wolfe v. Virginia, 139 S. Ct. 790

(2019) (mem.) (remanding for Court of Appeals review of constitutional claim in light

of Class); see also infra Part IV.

historical tradition of firearm regulation.”). Petitioner respectfully requests this

Court grant certiorari to determine whether Section 922(g)(3) is incompatible with

the Second Amendment. Petitioner submits it is—both facially and as-applied.

Further, certiorari should be granted in this case because the Eighth Circuit

declined to consider Rahimi when confronted with this Court’s new authority, overrelied on the distinction between facial and as-applied challenges which would have

overwritten Heller itself, and this categorical prohibition operates uniquely and

beyond the scope of history. At the very least, the dichotomous results across the

nation warrant this Court’s review and finality.

“The label is not what matters.”

The appellate panel below put misplaced emphasis on the distinction between

facial and as-applied challenges. “The label is not what matters.” John Doe No. 1 v.

Reed, 561 U.S. 186, 194 (2010). “[T]he substantive rule of law necessary to establish

a constitutional violation” is unaffected by the label a litigant or court may give it.

Bucklew v. Precythe, 587 U.S. 119, 138–39 (2019). Rather, the distinction is only a

measure of the precedential value of the case—and the facial/as-applied distinction

can be quite blurred. E.g., Reed, 561 U.S. at 194 (rejecting the two as being mutually

exclusive). Thus, where on the ‘facial to as-applied’ spectrum the challenge falls is

determined not by the label ascribed by the challenger, but by the controlling

principle of law the Court applies to resolve it.

The second question presented is one of Congressional authority—did

Congress exceed its authority and infringe upon a fundamental constitutional right?

Petitioner submits it exceeded that authority by targeting a class of individuals not

historically regulated. In other words, there is no basis to differentiate a facial from

an as-applied challenge here; Congress overstepped. Petitioner respectfully submits

that to the extent his as-applied challenge is deemed foreclosed by guilty plea (it is

not), the Eighth Circuit’s overreliance on the label misstates the proper analysis on

his challenge.

That analysis has consequences. The Eighth Circuit relies on United States v.

Salerno, 481 U.S. 739 (1987) regarding the scope of a constitutional challenge. See

Veasley, 98 F.4th at 909. Veasley suggests that Salerno requires an “all applications”

analysis: “[i]f some applications are constitutional, then facially speaking, the statute

is too.” Id. But Salerno’s context matters, and implicates another open question in

this Court’s jurisprudence: Does Salerno actually control the constitutional analysis

of substantive rights? Petitioner submits “no.” See United States v. Stevens, 559 U.S.

460, 472 (2010) (“Which standard applies in a typical case is a matter of dispute that

we need not and do not address, and neither Salerno nor Glucksberg is a speech

case.”). This remains an open question today.

The Salerno Court confronted a factor-based Bail Reform Act detention statute

which governed procedure—not substantive rights. Salerno, 481 U.S. at 742, 745. The

Court was tasked with considering whether a statute provided “due process,” a right

undefined by explicit text, and not clearly directed at Congress. Accordingly, a

challenge to procedure is necessarily dependent on individual facts. That is, the scope

of procedural due process is fluid and itself dependent on a factored analysis. By

contrast, the scope of substantive constitutional rights is fixed, tied as it must be, to

straightforward constitutional text. Rahimi, 144 S. Ct. at 1898 (“Even when a law

regulates arms-bearing for a permissible reason, though, it may not be compatible

with the right if it does so to an extent beyond what was done at the founding.”); id.

at 1907 (Gorsuch, J., concurring) (“[T]he Second Amendment ‘codified a pre-existing

right’ belonging to the American people, one that carries the same ‘scope’ today that

it was ‘understood to have when the people adopted’ it.” (internal quotation omitted));

id. at 1924 (Barrett, J., concurring) (“[T]he meaning of constitutional text is fixed at

the time of its ratification.”).

Unlike procedural prophylaxis, the substantive scope of the constitutional

right is explicitly prescribed and constant. E.g., id. at 1919 n.6 (Kavanaugh, J.,

concurring) (“In [the Due Process Clause] context[], the baseline is 180-degrees

different: The text supplies no express protection of any asserted substantive right.”).

Procedural rights tell Congress what to strive for (but not how), creating infinite

permutations of “due process,” requiring case-by-case assessment. Conversely,

substantive rights tell Congress what it cannot do. W. Va. Bd. of Educ. v. Barnette,

319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw

certain subjects from the vicissitudes of political controversy, to place them beyond

the reach of majorities and officials and to establish them as legal principles to be

applied by the courts.”). Cf. U.S. CONST. amend. II (“[T]he right of the people to keep

and bear Arms[] shall not be infringed.”).

Salerno developed in the procedural context—not the substantive context. It

relied on procedural authority. E.g., Schall v. Martin, 467 U.S. 253, 274 n.23 (1984).

Even in that authority, it was clear that the legal test for due process (case-by-case

analysis) is different than the scope of substantive rights (history). Id.; Snyder v.

Massachusetts, 291 U.S. 97, 105 (1934) (“The fact that a practice is followed by a large

number of states is not conclusive in a decision as to whether that practice accords

with due process, but it is plainly worth considering in determining whether the

practice ‘offends some principle of justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental.”). And there is no reason to require all

applications of a law be unconstitutional to determine whether Congress exceeded its

scope—a binary inquiry grounded in text.

In fact, this Court has even discarded the “all applications” adage with respect

to some substantive rights, including vagueness challenges and First Amendment

challenges. Johnson v. United States, 576 U.S. 591, 603 (2015) (“These decisions

refute any suggestion that the existence of some obviously risky crimes establishes

the residual clause’s constitutionality.” (emphasis in original)); Sec’y of State of Md.

v. Joseph H. Munson Co., Inc., 467 U.S. 947, 958 (1984) (“Facial challenges to overly

broad statutes are allowed not primarily for the benefit of the litigant, but the benefit

of society.”). And, this court has questioned application of Salerno’s procedural

pragmatism to substantive rights generally. Stevens, 559 U.S. at 472. In fact, the

Salerno requirement rewards legislative overstepping—it tells Congress that if it

makes a statute way overbroad, it cannot, under Salerno, be struck down because

there will inevitably be some constitutional applications. That is not in keeping with

this Court’s paradigmatic role of “maintaining the Constitution inviolate.” Accord

Napue v. Illinois, 360 U.S. 264, 271 (1959).

Of course, if the “all applications” standard were appropriate (it is not), this

Court’s seminal firearms case would probably have been wrongly decided (but it was

not). In Heller, this Court held a blanket firearm prohibition to be facially

unconstitutional. Dist. of Columbia v. Heller, 554 U.S. 570, 636 (2008). But surely

there were felons in D.C.,12 those adjudicated as mental defectives,13 and those

subject to a domestic abuse restraining order.14 Surely there were some applications

of Heller’s firearm ban which were constitutional. Those applications were not fatal

to Heller’s challenge, however, because what the legislature targeted went beyond its

Constitutional authority. It did what the Constitution forbade. U.S. CONST. amend.

II. And, the classification targeted here (drug users) must be assessed itself to

determine whether Congress exceeded its authority. Just as was done in Bruen and

Heller. Bruen, 597 U.S. at 70–71; Heller, 554 U.S. at 635–36; see also Reed, 561 U.S.

at 194 (recognizing a challenge can be facial and as-applied, depending on the

perspective). With Section 922(g)(3) specifically, Congress has again done what the

Constitution forbids.

In short, the Eighth Circuit’s treatment imposes a standard which would

essentially write out this Court’s precedent. See Veasley, 98 F.4th at 912 (“The key

12 18 U.S.C. § 922(g)(1).

13 18 U.S.C. § 922(g)(4).

14 18 U.S.C. § 922(g)(8); Rahimi, 144 S. Ct. at 1903 (upholding Section 922(g)(8)).

word is all.” (emphasis in original)). Because “ambition must be made to counteract

ambition,” see JAMES MADISON, FEDERALIST NO. 51 (1788) (recognizing the

constitutional goal as to the three branches of Government is “keeping each other in

their proper places”), courts should not, under the guise of circumspection or selfrestraint, resist doing what the Constitution demands when Congress shares no such

interest. It is error to apply a heightened standard to Mr. Deng’s Second Amendment

challenge.15

The historical record is set and courts are divided.

Notwithstanding the foregoing, this Court should grant certiorari to review the

constitutionality of 18 U.S.C. § 922(g)(3), whether analyzed as a facial challenge, asapplied challenge, or a combination. Petitioner submits that, on the merits, the law

should be found unconstitutional. At this stage, however, that courts are split also

warrants review. Cf. Supr. Ct. R. 10(a), (c). This important, and often recurring

question of federal constitutional law should be decided by this Court.16

There is little dispute of the historical record presented below. Accord Bruen,

15 To the extent the Court denies certiorari as to Question Presented No. 1 (it should

grant certiorari), the scope of Mr. Deng’s ‘facial’ challenge should not be constrained

in this way. In other words, if Mr. Deng is only permitted to bring a “facial” Second

Amendment challenge because he pled guilty, his facial challenge is still meritorious

even if there might be ancillary applications to which the law could constitutionally

apply. A court searching for a hypothetical constitutional application of a statute

amounts to precisely the advisory opinion which the Salerno rule seeks to curb in the

first place. Accordingly, this alternative argument warrants certiorari in the event

the first question presented be denied (though it should not be).

16 The question presented in No. 24-5089, Veasley, is a facial challenge to this statute.

The Veasley Petition appears too deferential to the Eighth Circuit’s errant

interpretation of the facial/as-applied dichotomy. For this, and the foregoing reasons,

this Court should not limit its analysis to a facial constitutional challenge.

597 U.S. at 25 n.6 (“[I]n our adversarial system of adjudication, we follow the

principle of party presentation.” (internal quotation omitted)). On appeal, the

Government looked to two other categorical bans: felons and persons adjudicated as

mental defectives. This Court’s recent pronouncement in Rahimi underscores why

those are inapplicable corollaries. There, the Court “conclude[d] only this: An

individual found by a court to pose a credible threat to the physical safety of another

may be temporarily disarmed consistent with the Second Amendment.” Rahimi, 144

S. Ct. at 1903 (majority) (emphasis supplied); id. at 1909 (Gorsuch, J., concurring)

(“[W]e do not decide today whether the government may disarm a person without a

judicial finding that he poses a ‘credible threat’ to another’s physical safety.”). Indeed,

a crucial component of Rahimi’s holding is absent here.

Section 922(g)(3) does not require any prior judicial finding. It requires no prior

conviction, cf. 18 U.S.C. § 922(g)(1), no court determination of mental incapacity, cf.

18 U.S.C. § 922(g)(4), and no prior judicial finding of credible threat to another, cf. 18

U.S.C. § 922(g)(8). Instead, this categorical prohibition, subsection (g)(3), is unique in

the law. It applies to retroactively criminalize a person’s potentially otherwise lawful

ownership of a firearm due solely to their use of drugs (some of which may be legal in

their state of domicile). As here, Mr. Deng had no prior convictions before he

purchased his firearms. And, the statute broadly, categorically disarms—it does not

merely prohibit the “use” or “discharge” of firearms while under the influence. See 18

U.S.C. § 922(g)(3); Heller, 554 U.S. at 633 (distinguishing the dissent’s citations to

historical regulation because “[a]ll of them punished the discharge (or loading) of

guns”). This was in part why the Fifth Circuit previously found this statute

unconstitutional: “Not only was the [historical regulations advanced by the

Government] enacted for a different purpose, but it did not even ban gun possession

or carry—it only prevented the colonists from misusing the guns they did have during

bouts of drinking.” United States v. Daniels, 77 F.4th 337, 345 (5th Cir. 2023),

remanded for consideration of Rahimi case, No. 23-376, 2024 WL 3259662 (U.S. July

2, 2024); see Bruen, 597 U.S. at 29 (requiring comparisons of how and why a modern

regulation and historical limitation(s) burdened the fundamental right). This is the

Government’s burden. Id. at 24. The Fifth Circuit has not yet reconsidered Daniels on

remand.

But, Daniels was not alone. See, e.g., United States v. Connelly, 668 F. Supp.

3d 662, 681 (W.D. Tex. 2023) (“Section 922(g)(3) breaks with historical intoxication

laws by prohibiting not just firearm use by those who are actively intoxicated but also

firearm possession by those who use controlled substances, even somewhat

irregularly. And it breaks with broader historical traditions of gun regulation by

disarming individuals without any sort of pre-deprivation process.”); United States v.

Harrison, 654 F. Supp. 3d 1191, 1215 n.134 (W.D. Okla. 2023) (“This is yet another

attempt by the United States to transform distinct historical examples into roving

warrants applicable to whatever conduct it desires. The trick goes something like

this: Take a historical example that applied to a distinct class of persons (e.g.,

dangerous lunatics), extract from it a broad principle (e.g., concerns about people

‘lacking self control’), and then fit into that broad category whole new classes of people

(e.g., marijuana users), even if they aren’t remotely the sort of persons that were

historically regulated.”); see also Rahimi, 144 S. Ct. at 1926 (Barrett, J., concurring)

(“To be sure, a court must be careful not to read a principle at such a high level of

generality that it waters down the right.”).

This division does not appear to be going away any time soon. See Veasley, 98

F.4th at 918 (“[F]or some drug users, § 922(g)(3) is ‘analogous enough to pass

constitutional muster.’ Whether it is for others is a question for another day.” (citation

and internal quotation omitted)). The Eighth Circuit has shown no interest in

reconsidering in light of Rahimi. See Pet. App. 23a (Denial of Rehearing-Panel and

En Banc). It certainly has invited more challenges. Petitioner respectfully submits

this important issue, frequently recurring, and marked by divided courts, warrants

certiorari on this record—both facially and as-applied.

III.

That 18 U.S.C. § 922(g)(3) requires a “judicially-created temporal

nexus” seen nowhere in the statute renders it unconstitutionally

vague. (Question Presented No. 3)

Finally, Petitioner maintains Section 922(g)(3) suffers from an additional fatal

flaw—it is unconstitutionally vague. Twice before the Eighth Circuit has recognized

the statute “runs the risk of being unconstitutionally vague.” United States v. Turner,

842 F.3d 602, 605 (8th Cir. 2016) (quoting United States v. Turnbull, 349 F.3d 558,

561 (8th Cir. 2003)).

Though it is plausible that the terms “unlawful user” of a controlled

substance and “addicted” to a controlled substance could be

unconstitutionally vague under some circumstances, Bramer does not

argue and has not shown, that either term is vague as applied to his

particular conduct of possessing firearms while regularly using

marijuana.

United States v. Bramer, 832 F.3d 908, 909–10 (8th Cir. 2016). The appellate panel

below repeated its concern. See Op., at 3, Deng, 104 F.4th at 1055 (“Admittedly, §

922(g)(3) might still be unconstitutionally vague on ‘the right fact[s],’ but this isn’t

that case.” (citation omitted, alteration in original)).

Under this Court’s precedent, however, a vagueness challenger does not need

demonstrate the statute is vague in all circumstances. Johnson, 576 U.S. at 602. Even

the Eighth Circuit recognized this: “Johnson, however, clarified that a vague criminal

statute is not constitutional ‘merely because there is some conduct that falls within

the provision’s grasp.’ ” Bramer, 832 F.3d at 909 (internal quotation omitted). This,

of course, follows from the fact that Salerno should not apply to substantive

challenges, see supra Section II.A., and the vagueness doctrine has roots in

substantive due process. See Johnson, 576 U.S. at 617 (Thomas, J., concurring in the

judgment) (criticizing the vagueness doctrinal roots as couched in substantive due

process). While that derivation is maintained, the “unconstitutional in all

applications” and the nearly identical ‘guilty plea foreclosure’ doctrines—considered

supra in Sections II.A. and I., respectively—cannot apply to vagueness challenges.

Finally, on the merits, the statute fails constitutional muster. “When Congress

leaves to the Judiciary of imputing to Congress an undeclared will, the ambiguity

should be resolved in favor of lenity.” Bell v. United States, 349 U.S. 81, 83 (1955).

Here, the Circuit had to do just that. Turner, 842 F.3d at 605 (“The phrase ‘unlawful

user of …any controlled substance’ in 18 U.S.C. § 922(g)(3) is not defined by statute

and ‘runs the rusk of being unconstitutionally vague without a judicially-created

temporal nexus between the gun possession and regular drug use.’ ” (internal

quotation omitted)). That judicial intervention on behalf of Congress is a

constitutionally significant flaw.

Accordingly, because the Eighth Circuit had to judicially amend Congress’s

law, and because hypothetical vagueness in some scenarios really only means the

statute is vague, the Eighth Circuit erred and a writ of certiorari should issue.

IV.

In the alternative, this Court should remand for full consideration of

the issues presented herein.

Due to the appellate panel’s short thrift treatment of Petitioner’s Second

Amendment challenge, and because it denied rehearing to consider Rahimi, 144 S.

Ct. 1889, Petitioner alternatively requests this Court summarily remand with

instructions to consider the same in the first instance. Further alternatively, this

Court can hold the Petition until Veasley is resolved—though Petitioner submits his

case is more appropriate for certiorari.

Conclusion

For the foregoing reasons, the petition for a writ of certiorari should be granted,

and the opinion of the United States Court of Appeals for the Eighth Circuit reversed

and remanded. The first question deals with a flawed “jurisdiction” test in

contravention of Class, 583 U.S. 174. The second question involves an erroneous

application of Bruen, 597 U.S. 1. Finally, the third question relates to an errant

narrowing of Johnson, 576 U.S. 591.

Respectfully submitted,