Petition for Writ of Certiorari — Kelvin Greer, Petitioner v. United States

No. ________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

KELVIN GREER,

Petitioner,

versus

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

__________________________________________________________________

REBECCA L. HUDSMITH

Federal Public Defender

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of

Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

1

QUESTION PRESENTED

Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C.

§ 922(g)(1), plainly unconstitutional on its face under New York State Rifle & Pistol

Association, Inc. v. Bruen, 597 U.S. 1 (2022), because it is permanent and applies to

all persons convicted of felonies?

2

TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................... 2

TABLE OF CONTENTS ............................................................................................... 3

APPENDIX INDEX ...................................................................................................... 4

TABLE OF AUTHORITIES ......................................................................................... 5

OPINIONS BELOW ..................................................................................................... 7

JURISDICTION............................................................................................................. 7

STATUTORY PROVISIONS INVOLVED .................................................................... 7

STATEMENT OF THE CASE....................................................................................... 8

REASONS FOR GRANTING THE WRIT ................................................................. 10

I.

II.

Simple application of Bruen’s historical-tradition test makes clear that

a blanket, lifetime ban on possession of firearms for all felons cannot

withstand constitutional scrutiny ............................................................. 11

A.

Bruen represented a fundamental shift in Second Amendment

B.

Under the new framework, Section 922(g)(1) violates the Second

Amendment because firearm possession is protected by the

Amendment’s plain text, and the government cannot show a

historical tradition of categorically disarming felons. ..................... 13

analysis. ............................................................................................. 11

1.

The text of the Second Amendment covers Greer’s conduct,

and he is among “the people” the Amendment protects. ...... 13

2.

There is no relevantly similar historical regulation that

bans firearm possession for life. ............................................ 15

The question whether Section 922(g)(1) violates the Second Amendment

has divided the courts of appeals and its resolution is of great

importance ................................................................................................ 22

3

III.

Alternatively, this Court should hold Greer’s petition pending

consideration of one of the many other petitions that will place these

same issues before this Court ................................................................... 26

CONCLUSION ............................................................................................................ 27

APPENDIX INDEX

Fifth Circuit opinion, February 10, 2025 ..........................................................App. 001

District court criminal judgment, August 13, 2024..........................................App. 003

4

TABLE OF AUTHORITIES

CASES

Binderup v. Att’y Gen. of the U.S., 836 F.3d 336 (3d Cir. 2016) (en banc) ............... 19

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

Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017) ...................................................... 15

Folajtar v. Att'y Gen. of the United States, 980 F.3d 897 (3d Cir. 2020) .................. 19

Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) ............................................................. 11

Jennings v. State, 5 Tex. Ct. App. 298 (1878) ............................................................ 21

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) .................................................. 10, 18-19

McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................... 11, 13

Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

700 F.3d 185 (5th Cir. 2012) ........................................................................ 11-12

New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) ....passim

Range v. Att'y Gen. United States, 124 F.4th 218 (3d Cir. 2024) (en banc)......... 25-26

United States v. Chester, 628 F.3d 673 (5th Cir. 2010) ....................................... 12, 19

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) ........................................ 9, 24-26

United States v. Duarte, 101 F.4th 657 (9th Cir.), reh’g en banc granted, opinion

vacated, 108 F.4th 786 (9th Cir. July 17, 2024).......................................... 25-27

United States v. Greer, No. 24-30558, 2025 WL 444417 (5th Cir. Feb. 10, 2025)

(unpublished) .................................................................................................. 7, 9

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024) .............................. 23-24, 27

United States v. Lara, 815 F.3d 605 (9th Cir. 2016) .................................................. 14

United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020) ..................................... 11-12

United States v. Rahimi, 144 S. Ct. 1889 (2024) ............................................. 15-18, 22

5

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).......................................... 14

United States v. Williams, 113 F.4th 637 (6th Cir. 2024).......................................... 23

STATUTES

U.S. Const. Amend. I ................................................................................................... 15

U.S. Const. Amend. II (“Second Amendment”)....................................................passim

U.S. Const. Amend. IV................................................................................................. 14

18 U.S.C. § 922(g)(1) .............................................................................................passim

18 U.S.C. § 922(o)........................................................................................................... 8

1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688) ................................... 19

Sec’y of the Commonwealth, Acts and Resolves of Massachusetts 1786–87, at 178

(1893) ................................................................................................................. 20

OTHER

Adam Winkler, Heller’s Catch-22, 56 U.C.L.A. L. Rev. 1551 (2009) ......................... 17

C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub.

Policy 695 (2009) ............................................................................................... 18

Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous

Persons from Possessing Arms, 20 Wyo. L. Rev. 249 (2020) ..................... 18, 20

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

Law & Hist. Rev. 139 (2007)........................................................................ 19-20

Steven G. Bradbury, et al., Whether the Second Amendment Secures an

Individual Right, 28 OP. O.L.C. 126 (2004) ..................................................... 21

6

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit

affirming petitioner’s conviction and sentence can be found at United States v. Greer,

No. 24-30558, 2025 WL 444417 (5th Cir. Feb. 10, 2025) (unpublished), and is set forth

at App. 001.

JURISDICTION

The judgment of the court of appeals was entered on February 10, 2025. The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 922(g)(1) states in relevant 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.

The Second Amendment to the U.S. Constitution provides in relevant part:

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.

7

STATEMENT OF THE CASE

Kelvin Greer was charged in a one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) and one count of illegal possession of a

machine gun in violation of 18 U.S.C. § 922(o). ROA.7-8. When he possessed the

firearm, Greer had prior felony convictions for illegal carrying of weapons while in

possession of controlled dangerous substances and unlawful handling of a machine

gun. ROA.150-51. Greer filed a motion to dismiss the indictment alleging that §

922(g)(1) was facially unconstitutional under the Second Amendment. ROA.11. The

government filed a written opposition, ROA.27, and the court denied the motion in a

written memorandum ruling. ROA.47.

After losing his constitutional challenge to § 922(g)(1), Greer entered into a

plea agreement with the government where he agreed to plead guilty to the §

922(g)(1) count and the government dismissed the § 922(o) count. ROA.131. Greer

and the government agreed in the plea agreement that his guilty plea was conditioned

on his ability to challenge the constitutionality of § 922(g)(1) on appeal. ROA.132.

Greer received a guideline sentence of 46 months imprisonment. ROA.74. Greer filed

a timely notice of appeal. ROA.79.

Greer appealed the facial constitutionality of Section 922(g)(1). The

government moved for summary affirmance at the Fifth Circuit because challenges

to the facial constitutionality of Section 922(g)(1) were foreclosed in the Circuit by

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024). On February 10, 2025, The Fifth

Circuit granted the government’s motion for summary affirmance, affirmed the

8

district court’s judgment, and rejected Greer’s Second Amendment challenge to

Section 922(g)(1). See App.001; United States v. Greer, No. 24-30558, 2025 WL

444417 (5th Cir. Feb. 10, 2025) (unpublished).

9

REASONS FOR GRANTING THE WRIT

This Court should grant a writ of certiorari in Greer’s case, or, alternatively,

grant certiorari in another case raising the same issues and then hold Greer’s petition

pending a resolution of these important questions.

In Bruen, this Court established a new framework for determining whether a

firearm regulation is constitutional under the Second Amendment, eliminating the

two-step history and means-end scrutiny test that the Fifth Circuit and others

previously employed. Specifically, Bruen got rid of the second step. This Court

declared that “a constitutional guarantee subject to future judges’ assessments of its

usefulness is no constitutional guarantee at all.” New York State Rifle & Pistol

Association, Inc. v. Bruen, 597 U.S. 1, 23 (2022) (quotations omitted). Now, under

Bruen, for a law to survive a Second Amendment challenge, the government must

“identify an American tradition” justifying the law’s existence. If it cannot, courts

may no longer apply “means-end scrutiny” to uphold the law under the second step.

Id. at 2125, 2138. Instead, the inquiry ends, and the law is unconstitutional.

Thus, under Bruen, the government must prove that Section 922(g)(1) is

consistent with this Nation’s historical tradition of firearm regulation. But it plainly

cannot do so because there is no relevantly similar historical analogue to a lifetime

ban on possession of firearms. As one Justice has noted, no historical tradition of

prohibiting felons from possessing firearms for life exists. Kanter v. Barr, 919 F.3d

437, 458 (7th Cir. 2019) (Barrett, J., dissenting), abrogated by Bruen, 597 U.S. 1.

Thus, Section 922(g)(1) is unconstitutional on its face. And that is clearly and

10

obviously dictated by simple application of Bruen. The Fifth Circuit was wrong to

hold that Bruen does not compel this straightforward result. Greer’s conviction under

Section 922(g)(1) should be reversed.

I.

Simple application of Bruen’s historical-tradition test makes clear that a

blanket, lifetime ban on possession of firearms for all felons cannot withstand

constitutional scrutiny

A.

Bruen represented a fundamental shift in Second Amendment analysis

The Second Amendment to the U.S. Constitution mandates that a “wellregulated militia, being necessary to the security of a free state, the right of the people

to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. In Dist. of

Columbia v. Heller, this Court held that the Second Amendment codifies an

individual right to possess and carry weapons, explaining that the inherent right of

self-defense is central to its protections. 554 U.S. 570, 628 (2008); see also McDonald

v. City of Chicago, 561 U.S. 742, 767 (2010) (holding “that individual self-defense is

the central component of the Second Amendment right”).

Following Heller (but before Bruen), the Fifth Circuit and others “adopted a

two-step inquiry for analyzing laws that might impact the Second Amendment.”

Hollis v. Lynch, 827 F.3d 436, 446 (5th Cir. 2016). First, courts asked “whether the

challenged law impinge[d] upon a right protected by the Second Amendment—that

is, whether the law regulate[d] conduct that falls within the scope of the Second

Amendment’s guarantee.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco,

Firearms & Explosives [NRA], 700 F.3d 185, 194 (5th Cir. 2012); see also United

States v. McGinnis, 956 F.3d 747, 754 (5th Cir. 2020). To make that determination,

11

courts “look[ed] to whether the law harmonize[d] with the historical traditions

associated with the Second Amendment guarantee.” NRA, 700 F.3d at 194. If the

regulated conduct was deemed to fall outside the scope of the Second Amendment’s

protection under that framework, then the law was deemed constitutional without

further analysis. McGinnis, 956 F.3d at 754.

However, if the regulated conduct fell within the protective scope of the Second

Amendment, courts proceeded to step two: determining and applying “the

appropriate level of means-end scrutiny—either strict or intermediate.” Id. (internal

quotation marks and citation omitted). “[T]he appropriate level of scrutiny

‘depend[ed] on the nature of the conduct being regulated and the degree to which the

challenged law burden[ed] the right.” NRA, 700 F.3d at 195 (quoting United States

v. Chester, 628 F.3d 673, 682 (5th Cir. 2010)). Under that framework, “a ‘regulation

that threaten[ed] a right at the core of the Second Amendment’—i.e., the right to

possess a firearm for self-defense in the home—‘trigger[ed] strict scrutiny,’ while ‘a

regulation that does not encroach on the core of the Second Amendment’ [was]

evaluated under intermediate scrutiny.” McGinnis, 956 F.3d at 754 (quoting NRA,

700 F.3d at 194).

In Bruen, this Court expressly abrogated the two-step inquiry adopted by the

Fifth Circuit and others and announced a new framework for analyzing Second

Amendment claims. The Court reasoned that “[s]tep one of the predominant

framework is broadly consistent with Heller, which demands a test rooted in the

Second Amendment’s text, as informed by history.” Bruen, 597 U.S. at 19. However,

12

Bruen rejected the practice of applying “means-end scrutiny” to conduct deemed

protected (i.e., step two of the old framework), explaining that “Heller and McDonald

do not support applying means-end scrutiny in the Second Amendment context.” Id.

Under Bruen’s newly announced framework, “when the Second Amendment’s plain

text covers an individual’s conduct, the Constitution presumptively protects that

conduct.” Id. at 17. And, upon such a finding, “[t]he government must then justify its

regulation by demonstrating that it is consistent with the Nation’s historical tradition

of firearm regulation.” Id. at 24. Only upon the government making such a showing

may a court “conclude that the individual’s conduct falls outside of the Second

Amendment’s ‘unqualified command.’” Id. (citation omitted). In other words, for a

firearm regulation to pass constitutional muster, “the government must affirmatively

prove that its firearms regulation is part of the historical tradition that delimits the

outer bounds of the right to keep and bear arms.” Id. at 19.

B.

Under the new framework, Section 922(g)(1) violates the Second

Amendment because firearm possession is protected by the

Amendment’s plain text, and the government cannot show a historical

tradition of categorically disarming felons

Straightforward application of Bruen’s test makes clear that Section 922(g)(1)

cannot survive constitutional scrutiny, and the Fifth Circuit was wrong to hold

otherwise.

1.

The text of the Second Amendment covers Greer’s conduct, and

he is among “the people” the Amendment protects

The plain text of the Second Amendment protects the right to possess and carry

weapons for self-defense. See Heller, 554 U.S. at 583-92. And Bruen clarified that this

13

right extends outside of the home. 297 U.S. at 8. Section 922(g)(1) is a permanent and

complete ban on any firearm possession by felons in any context. Thus, the statute

regulates (and in fact fully prohibits) conduct that is presumptively protected under

the plain text of the Second Amendment. As a result, the statute is presumptively

unconstitutional under Bruen. Id. at 24.

In an attempt to sidestep this straightforward conclusion, the government has

adopted a novel argument that a person’s status as a “felon” excludes that person

from the Second Amendment’s protections. But the plain text of the Second

Amendment and this Court’s precedent hold otherwise. In Heller, this Court rejected

the theory that “the people” protected by the Second Amendment was limited to a

specific subset—i.e., those in a militia. 554 U.S. at 579-81, 592-600. The Court

explained that when the Constitution refers to “‘the people,’ the term unambiguously

refers to all members of the political community, not an unspecified subset,” and there

is thus a “strong presumption that the Second Amendment right is exercised

individually and belongs to all Americans.” Id. at 580-81 (emphasis added).

Comparison to other constitutional amendments confirms this view. As Heller

explained, “the people” is a “term of art employed in select parts of the Constitution,”

including “the Fourth Amendment, . . . the First and Second Amendments, and . . .

the Ninth and Tenth Amendments.” Id. (quoting United States v. Verdugo-Urquidez,

494 U.S. 259, 265 (1990)). It is beyond challenge that felons are among “the people”

whose “persons, houses, papers, and effects” enjoy Fourth Amendment protection.

U.S. Const. Amend. IV; see United States v. Lara, 815 F.3d 605 (9th Cir. 2016). And

14

felons likewise enjoy “the right of the people” to “petition the government for redress

of grievances.” U.S. Const. Amend. I; see Entler v. Gregoire, 872 F.3d 1031, 1039 (9th

Cir. 2017). If a person with a felony conviction is one of “the people” protected by the

First and Fourth Amendments, Heller teaches that he is one of “the people” protected

by the Second Amendment, too.

This view was confirmed when this Court addressed a challenge to a different

subsection of § 922(g) last term in United States v. Rahimi, 144 S. Ct. 1889 (2024).

The Court analyzed historical laws dealing with dangerous persons to find that

§ 922(g)(8) was consistent with historical tradition and therefore constitutional. Id.

at 1899-1900. But the Court never suggested for a moment that Mr. Rahimi was not

one of “the people” protected by the Second Amendment. Accordingly, Greer is among

“the people” to whom the Second Amendment applies.

2.

There is no relevantly similar historical regulation that bans

firearm possession for life

Bruen provided guidance on conducting historical analysis in the hunt for

relevantly similar regulations. The Court can consider “whether ‘historical precedent’

from before, during, and even after the founding evinces a comparable tradition of

regulation.” Bruen, 597 U.S. at 27. But Bruen reminded that “not all history is

created equal.” Id. at 34. That is because “[c]onstitutional rights are enshrined with

the scope they were understood to have when the people adopted them.” Id.

(quotations omitted). Because the Second Amendment was adopted in 1791, earlier

historical evidence “may not illuminate the scope of the right if linguistic or legal

conventions changed in the intervening years.” Id. Similarly, post-ratification laws

15

that “are inconsistent with the original meaning of the constitutional text obviously

cannot overcome or alter that text.” Id. at 36 (quotations and emphasis omitted).

Bruen—and, later, Rahimi—also offered analytical guidance for evaluating

historical clues. As this Court explained in Rahimi: “A court must ascertain whether

the new law is ‘relevantly similar’ to laws that our tradition is understood to permit,

‘apply[ing] faithfully the balance struck by the founding generation to modern

circumstances.’” Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 29). In doing

so, “[w]hy and how the regulation burdens the right are central to this inquiry.”

Id. Thus, “if laws at the founding regulated firearm use to address particular

problems, that will be a strong indicator that contemporary laws imposing similar

restrictions for similar reasons fall within a permissible category of regulations.” Id.

Importantly, though, “[e]ven when a law regulates arms-bearing for a permissible

reason, . . . it may not be compatible with the right if it does so to an extent beyond

what was done at the founding.” Id. And this Court made clear that the burden falls

squarely on the government to “affirmatively prove that its firearms regulation is

part of the historical tradition that delimits the outer bounds of the right to keep and

bear arms.” Bruen, 597 U.S. at 19. If the government cannot do so, the infringement

on the right cannot survive.

In Heller, this Court confirmed an individual’s right to keep and bear arms but

cautioned that this right is “not unlimited.” 554 U.S. at 626. As an example, the Court

provided, in dicta, a non-exhaustive list of “presumptively lawful regulatory

measures”—i.e., ones that had not yet undergone a full historical analysis. Id. at 627

16

n.26 (emphasis added). This list included laws restricting possession by felons and

the mentally ill and the carrying of firearms in “sensitive places.” Id. at 626. Heller

emphasized that “we do not undertake an exhaustive historical analysis today of the

full scope of the Second Amendment.” Id. And since this was the Court’s “first indepth examination of the Second Amendment,” Heller explained that it could not

“clarify the entire field.” Id. at 635. But Heller promised that there would be “time

enough to expound upon the historical justifications for the exceptions we have

mentioned if and when those exceptions come before us.” Id. That time is now. The

government cannot meet its burden to establish the requisite “relevantly similar”

historical tradition. Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 29).

The government cannot meet its burden to establish Section 922(g)(1)’s

historical pedigree for a simple reason: neither the federal government nor a single

state barred all people convicted of felonies until the 20th century. See, e.g., Adam

Winkler, Heller’s Catch-22, 56 U.C.L.A. L. Rev. 1551, 1563 (2009). The modern

version of Section 922(g)(1) was adopted 177 years after the Second Amendment.

Bruen, 597 U.S. at 66 n.28 (“[L]ate-19th-century evidence” and any “20th-century

evidence . . . does not provide insight into the meaning of the Second Amendment

when it contradicts earlier evidence.”).

Section 922(g)(1) very much contradicts earlier evidence from the relevant

historical periods: “(1) . . . early modern England; (2) the American Colonies and the

early Republic; (3) antebellum America; [and] (4) Reconstruction.” Id. at 2135–36.

Those periods lack evidence of any analogue to Section 922(g)(1).

17

The government may argue that, historically, some jurisdictions sometimes

regulated firearm use by those considered presently violent. But not all people with

a felony conviction are presently violent. Moreover, the historical regulations

required an individualized assessment of a person’s threat to society. And finally, the

historical regulations almost always allowed people deemed violent to still possess

weapons for self-defense. Thus, even those convicted of serious crimes—including

rebellion—remained entitled to protect themselves in a dangerous world, with

firearms if necessary. Those laws’ targeted nature makes them a far cry from

declaring that any person, convicted of any felony, can never possess “the most

popular weapon chosen by Americans for self-defense in the home.” Heller, 554 U.S.

at 629.

England, before the founding, did not ban felons from ever again possessing a

firearm. See Kanter, 919 F.3d at 457 (Barrett, J., dissenting); C. Kevin Marshall, Why

Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Policy 695, 717 (2009);

Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons

from Possessing Arms, 20 Wyo. L. Rev. 249, 260 (2020). To the extent that England

sought to disarm individuals, those regulations usually required a more culpable

mental state and made exceptions for self-defense, both features absent from Section

922(g)(1). Rahimi discusses at length the surety laws and laws against affray or going

armed against the king’s subjects. 144 S. Ct. at 1899-1902.

To the extent that England tried to disarm whole classes of subjects, it did so

on discriminatory grounds that would be unconstitutional today—and yet still

18

permitted those targeted to keep arms for self-defense. For example, in the age of

William and Mary (both Protestants), Catholics were presumed loyal to James II (a

Catholic trying to retake the throne) and treasonous. Thus, Catholics could keep

“Arms, Weapons, Gunpowder, [and] Ammunition,” only if they declared allegiance to

the crown and renounced key parts of their faith. See Bruen, 597 U.S. at 45 n.12

(quoting 1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688)). In short, the

English never tried to disarm all felons. Rather, they tried to limit the use of firearms

by those individuals found to be violent and rebellious. And even those individuals

could keep arms for self-defense. A “relevantly similar” historical regulation that is

not. Bruen, 597 U.S. at 29.

“[T]here is little evidence of an early American practice of,” forever barring all

people convicted of a felony from ever again possessing a firearm. Bruen, 597 U.S. 1

at 46. The early United States accepted that those who committed crimes—even

serious ones—retained a right to defend themselves. That can be seen in the colonies’

and states’ statutes, early American practice, and rejected proposals from state

constitutional conventions. See Kanter, 919 F.3d at 454 (Barrett, J., dissenting);

Folajtar v. Att'y Gen. of the United States, 980 F.3d 897, 915 (3d Cir. 2020) (Bibas,

J., dissenting); Chester, 628 F.3d at 679; Binderup v. Att’y Gen. of the U.S., 836 F.3d

336, 368 (3d Cir. 2016) (en banc) (Hardiman, J., concurring).

To the extent that the new nation sought to disarm people, the regulatory

approach was much more limited than Section 922(g)(1). For example, the Virginia

colony disarmed Catholics, still viewed as traitors to the crown. Robert H. Churchill,

19

Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The

Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 157 (2007)

(citation omitted). But there was an exception for weapons allowed by a justice of the

peace “for the defense of his house and person.” Id. And following the Declaration of

Independence, Pennsylvania ordered that those who did not pledge allegiance to the

Commonwealth and renounce British authority be disarmed. Id. at 159. Thus, to the

extent that either regulation would comply with the Second Amendment, as

understood today, they required a specific finding that a specific person posed a risk

of violence to the state.

Colonial and Founding-era practice also suggests that committing a serious

crime did not result in a permanent disarmament. For example, leaders of the

seminal Massachusetts Bay colony once disarmed supporters of a banished

seditionist. Greenlee, supra, at 263 (citations omitted). Nevertheless, “[s]ome

supporters who confessed their sins were welcomed back into the community and able

to retain their arms.” Id. And in 1787, after the participants in Shay’s Rebellion

attacked courthouses, a federal arsenal, and the Massachusetts militia, they were

barred from bearing arms, for three years, not life. Id. at 268-67. In fact,

Massachusetts law required the Commonwealth to hold and then return the rebels’

arms after that period. Sec’y of the Commonwealth, Acts and Resolves of

Massachusetts 1786–87, at 178 (1893).

American practice and laws during the Nineteenth Century—before and after

the Civil War—also confirm that Section 922(g)(1) does not comport with the

20

“Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 34. The

United States continued to regulate—but not ban—firearm possession by those

feared to be violent. See id. at 55 (holding that 19th century surety laws allowed

people likely to breach the peace to still keep guns for self-defense or if they posted a

bond). But, as discussed above, that is not similar to Section 922(g)(1). There is no

evidence of a precursor to Section 922(g)(1)’s broad, categorical ban. In fact, there are

at least two documented instances where attempts to disarm a class of offenders was

rejected as inconsistent with the right to bear arms.

First, as with Shay’s Rebellion, Congress declined to disarm southerners who

fought against the Union in the Civil War. Steven G. Bradbury, et al., Whether the

Second Amendment Secures an Individual Right, 28 OP. O.L.C. 126, 226 (2004). The

reason: some northern and Republican senators feared that doing so “would violate

the Second Amendment.” Id. Second, when a Texas law ordered that people convicted

of unlawfully using a pistol be disarmed, it was struck down as unconstitutional

under the Texas constitution. Jennings v. State, 5 Tex. Ct. App. 298, 298 (1878).

In sum, the 19th century history provides clear evidence that mass

disarmament for people convicted of an offense is unconstitutional. Not only was

there a consistent practice of allowing people who broke the law to keep weapons for

self-defense—at least one state appellate court and Congress agreed that disarming

lawbreakers was unconstitutional. As Bruen teaches: “[I]f some jurisdictions actually

attempted to enact analogous regulations during this timeframe, but those proposals

were rejected on constitutional grounds, that rejection surely would provide some

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probative evidence of unconstitutionality.” 597 U.S. at 27.

Rahimi did not affect this analysis—and, in fact, made all the clearer Section

922(g)(1)’s lack of constitutional backing. The prohibition there passed constitutional

muster because there were historical analogues temporarily disarming those proven

to be presently violent. 144 S. Ct. 1898-99. The restraining order subsection of

§ 922(g) passed constitutional muster because there is an individualized finding of

dangerousness, after notice and an opportunity to be heard, and the restriction lasts

only as long as the restraining order does. Id. at 1895-96.

Again, “[w]hy and how the regulation burdens the right are central to the

inquiry.” Id. at 1898. Section 922(g)(1) contains a lifetime prohibition on possession

of firearms by all convicted felons, without an individualized determination of

ongoing dangerousness. It therefore violates the Second Amendment on its face, and

Greer’s conviction under Section 922(g)(1) must be vacated.

II.

The question whether Section 922(g)(1) violates the Second Amendment has

divided the courts of appeals and its resolution is of great importance

Since Bruen, the courts of appeals have reached different opinions about

whether Section 922(g)(1) is constitutional under the Second Amendment. The

Eighth Circuit has concluded that the statute does not violate the Second Amendment

and have foreclosed future as-applied challenges. The Fifth Circuit has also rejected

facial Second Amendment challenges, like in this case, but has adopted a case by case

approach to as-applied challenges looking only at the disqualifying felony conviction.

The Sixth Circuit in contrast has adopted a dangerousness test for as-applied

challenges. Meanwhile, the Third and Ninth Circuits have found Section 922(g)(1)

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unconstitutional as applied to specific defendants. These differing opinions have

generated opposite outcomes, with Second Amendment claims entirely foreclosed in

certain jurisdictions and not in others.

The Sixth Circuit in United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

held that Section 922(g)(1) is constitutional both on its face and as applied to

dangerous individuals. After conducting an extensive historical analysis, the court

concluded that governments have traditionally had authority to disarm groups

deemed dangerous, provided that individuals within those groups have an

opportunity to demonstrate they do not pose a danger. Applying this framework, the

court found that Section 922(g)(1) is constitutional as applied to the defendant

Williams, who had prior convictions for aggravated robbery, attempted murder, and

unlawfully possessing a firearm as a felon. Notably, the court held that when

evaluating as-applied challenges to Section 922(g)(1), courts should consider a

defendant’s entire criminal record, not just the specific predicate felony, and assess

whether their offenses fall into historically recognized categories of dangerous crimes

like violent felonies or offenses that inherently pose a significant threat of danger.

While the court left open whether non-violent felonies like fraud could justify

disarmament, it concluded that Williams’ violent criminal history clearly

demonstrated he was dangerous and therefore could be constitutionally prohibited

from possessing firearms under Section 922(g)(1). Id. at 645-63.

The Eighth Circuit analyzed the constitutionality of Section 922(g)(1) in

United States v. Jackson, 110 F.4th 1120, 1121 (8th Cir. 2024). There, it held that

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Section 922(g)(1) is constitutional as applied to the defendant Jackson, who had prior

drug trafficking convictions. The court reasoned that historically, legislatures had

broad authority to disqualify categories of persons from possessing firearms, either

because they deviated from legal norms or presented an unacceptable risk of

dangerousness. The court found that Congress acted within this historical tradition

in enacting the felon-in-possession ban, and rejected Jackson’s argument that the law

was unconstitutional as applied to his “non-violent” felony convictions, concluding

that individual determinations of dangerousness were not historically required to

justify such categorical prohibitions. Id. at 1125-29.

The Fifth Circuit has rejected specific as applied challenges to Section 922(g)(1)

but has not foreclosed future such challenges. In United States v. Diaz, 116 F.4th

458, 465 (5th Cir. 2024), the Fifth Circuit parted ways with other Circuits, holding

that that Bruen abrogated its prior decisions upholding Section 922(g)(1) against

Second Amendment challenge. It held that Heller’s reference to “longstanding

prohibitions on the possession of firearms by felons” did not reflect “binding precedent

on the issue now before us,” ultimately concluding that felons were amongst “the

people” protected by the Second Amendment. Id. at 466 & n.2. However, it found that

Section 922(g)(1) was constitutional on its face and as applied to that particular

defendant. Id. at 472. It explained that Section 922(g)(1)’s application was consistent

with this Nation’s historical tradition of firearm regulation because “[a]t the time of

the Second Amendment’s ratification, those—like Diaz—guilty of certain crimes—

like theft—were punished permanently and severely,” that is, by death or estate

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forfeiture, and “permanent disarmament was [also] a part of our country’s arsenal of

available punishments at that time.” Id. Nonetheless, the court expressly held that

“[o]ur opinion today does not foreclose future as-applied challenges by defendants

with different predicate convictions.” Id. at 470 n.4.

The Third and Ninth Circuits, in contrast, issued decisions striking down

Section 922(g)(1)’s application as unconstitutional under Bruen. See Range v. Att'y

Gen. United States, 124 F.4th 218 (3d Cir. 2024) (en banc); United States v. Duarte,

101 F.4th 657, 664-91 (9th Cir.), reh’g en banc granted, opinion vacated, 108 F.4th

786 (9th Cir. July 17, 2024). In Range, the en banc Third Circuit applied Bruen’s textand-history test and found Section 922(g)(1) unconstitutional as applied to a person

whose prior conviction for making false statements in relation to food stamps had

exposed him to more than a year in prison. First, the court rejected the government’s

contention that a person’s past conviction for an offense punishable by over one year

operates to remove him from “the people” to whom the right to keep and bear arms is

vested. Range, 124 F.4th 226-28. Then, upon examination of the relevant historical

evidence, the court held that the government had failed in its attempt to demonstrate

a broad tradition of American laws imposing anything near a permanent ban on

firearm possession on account of past misdeeds. Id. at 228-32.

Finally, the Ninth Circuit, in United States v. Duarte, 101 F.4th 657 (9th Cir.),

reh'g en banc granted, opinion vacated, 108 F.4th 786 (9th Cir. 2024), also concluded

there was no historical tradition of permanently disarming people convicted of certain

felony offenses—those that did not exist or were punished as misdemeanors during

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the founding era. The Ninth Circuit accordingly invalidated Section 922(g)(1)’s

application to a defendant with prior convictions for modern-day felonies that

included possessing drugs for sale, vandalism, and evading arrest. Id. at 688-91.

Thus, the circuit split regarding the constitutionality of Section 922(g)(1)

remains. Resolving the question presented is also important. Despite serious

concerns as to Section 922(g)(1)’s constitutionality, the statute continues to result in

the imprisonment of thousands of American citizens each year. See Petition for Writ

of Certiorari at 22–24, Garland v. Range, No. 23-374 (Oct. 5, 2023) (marshaling

statistics demonstrating that Section 922(g)(1) is the most frequently applied

provision of Section 922(g)). And, for fear of the same fate, countless more individuals

are deterred from engaging in conduct that would otherwise come within the Second

Amendment’s core. Only this Court can settle this monumental question upon its

inevitable return to the Court’s docket.

III.

Alternatively, this Court should hold Greer’s petition pending consideration of

one of the many other petitions that will place these same issues before this

Court

Finally, Greer notes that numerous petitions raising the same issues are now

or will shortly be filed in this Court. That includes the pending petition arising out of

the lead case on this issue in the Fifth Circuit—United States v. Diaz, 116 F.4th 458

(5th Cir. 2024), petition for writ of certiorari filed, No. 24-6625, (Feb. 18, 2025), as

well as United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024), petition for writ of

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certiorari filed, No. 22-2870 (Feb. 3, 2025). 1 2 Accordingly, Greer requests that his

petition be held pending those and/or other petitions if this Court anticipates that it

may grant a writ of certiorari on the issues raised herein.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted this May 1, 2025,

REBECCA L. HUDSMITH

Federal Public Defender

BY:

s/ Dustin C. Talbot

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

United States v. Duarte,

108 F.4th 786 (9th Cir. 2024).

2 This Court is also considering petitions in other Second Amendment cases that bear on the

instant petition. See e.g. Snope v. Brown, No. 24-203 (Issue presented: “Whether the Constitution

permits the state of Maryland to ban semiautomatic rifles that are in common use for lawful purposes,

including the most popular rifle in America”); Ocean State Tactical, LLC v. Rhode Island, No. 24-131

(Issue presented: “Whether a retrospective and confiscatory ban on the possession of ammunitionfeeding devices that are in common use violates the Second Amendment”).

1 This issue is also being considered by the en banc Ninth Circuit in

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