Petition for Writ of Certiorari — Shawn K. Bever, Petitioner v. United States

NO. __________________

In the

Supreme Court of the United States

SHAWN K. BEVER, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Wesley P. Page

Federal Public Defender

Jonathan D. Byrne

Appellate Counsel

Lex A. Coleman

Senior Litigator

Counsel of Record

OFFICE OF THE FEDERAL PUBLIC DEFENDER

Southern District of West Virginia

300 Virginia Street, East, Room 3400

Charleston, West Virginia 25301

304/347-3350

lex_coleman@fd.org

Counsel for Petitioner

Dated: June 3, 2025

I. QUESTION PRESENTED FOR REVIEW

In New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), this Court

adopted a two-step approach for analyzing whether regulation of the possession of

firearms violated the Second Amendment. The first step of that analysis involves

whether the conduct at issue is protected the Second Amendment. In this case, and

many others, the Fourth Circuit Court of Appeals and others have concluded that

the first step of Bruen is satisfied only if the challenger is a “law-abiding” citizen.

This issue presented in this Petition is whether the individual right to bear arms for

self-defense guaranteed by the Second Amendment applies only to “law-abiding

citizens” who have no prior convictions?

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II. TABLE OF CONTENTS

I.

QUESTIONS PRESENTED FOR REVIEW ...................................................... 1

II.

TABLE OF CONTENTS ..................................................................................... 2

III.

TABLE OF AUTHORITIES ............................................................................... 4

IV.

LIST OF ALL DIRECTLY RELATED PROCEEDINGS ................................... 7

V.

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

VI.

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

VII.

STATUTES AND REGULATIONS INVOLVED ............................................... 8

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

IX.

A.

Federal Jurisdiction ................................................................................. 8

B.

Relevant Second Amendment Jurisprudence ......................................... 9

C.

Facts Pertinent to the Issue Presented ................................................. 18

1.

The district court denies Bever’s motion to dismiss,

finding Moore’s reliance on Heller’s presumptively

lawful dicta was unaffected by Bruen’s rejection of

means end scrutiny...................................................................... 18

2.

The Fourth Circuit summarily affirms the denial of

Bever’s motion to dismiss in a per curium opinion

without oral argument based on intervening circuit

law. ............................................................................................... 19

REASONS FOR GRANTING THE WRIT........................................................ 20

The writ should be granted to determine whether, when analyzing

a challenge to a firearm regulation like 18 U.S.C. § 922(g)(1),

Second Amendment protections are limited to “law-abiding citizens”

who have never been convicted of a crime. ...................................................... 20

A.

Bever/Hunt conflicts with the plain text of the Second

Amendment, as well as with this Court’s precedents by

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failing to apply the historical analysis and allocation of

burdens required by the Bruen/Rahimi framework. ........................... 21

B.

X.

Circuit decisions on the availability of and requirements for

Second Amendment challenges to § 922(g)(1) have created a

split of authority that cannot be reconciled without this

Court’s intervention. .............................................................................. 22

CONCLUSION .................................................................................................. 24

APPENDIX A: Unpublished Opinion of the

United States Court of Appeals for the Fourth Circuit

decided March 5, 2025 .................................................................... A-1

APPENDIX B: Published decision of the

United States District Court for the

Southern District of West Virginia

decided April 18, 2023..................................................................... B-1

APPENDIX C: Judgment of the

United States District Court for the

Southern District of West Virginia

entered April 3, 2023 ...................................................................... C-1

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III. TABLE OF AUTHORITIES

Cases

Bianchi v. Brown,

111 F.4th 438 (4th Cir. 2024) ........................................................................... 16

Class v. United States,

138 S. Ct. 798 (2018) ........................................................................................... 9

District of Columbia v. Heller,

554 U.S. 570 (2008) ....................................................................... 9-19, 21-22, 24

Friedman v. Highland Park,

136 S. Ct. 447 (2015) ......................................................................................... 17

Hamilton v. Pallozzi,

848 F.3d 614 (4th Cir. 2017) ....................................................... 12-13, 16-17, 22

Jackson v. City and County of San Francisco, California,

135 S. Ct. 2799 (2015) ....................................................................................... 17

McDonald v. City of Chicago,

561 U.S. 742 (2010) ........................................................................................... 17

New York State Rifle & Pistol Ass’n v. City of New York, NY,

590 U.S. 336 (2020) ........................................................................................... 17

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

597 U.S. 1 (2022) ................................................................. 1, 8, 11, 13-19, 21-23

Peruta v. California,

137 S. Ct. 1995 (2017) ....................................................................................... 17

Range v. Att’y Gen.,

124 F.4th 218 (3d Cir. 2024)(en banc) .............................................................. 24

Rogers v. Grewal,

140 S. Ct. 1865, 1866 (2020) ............................................................................. 17

Silvester v. Becerra,

138 S. Ct. 945 (2018) ......................................................................................... 17

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United States v. Bever,

2025 WL 702082 (4th Cir. 2025)........................................................ 7, 19-22, 24

United States v. Bever,

669 F. Supp. 3d 578 (S.D. W. Va. 2023) ....................................................... 7, 19

United States v. Canada,

123 F.4th 159 (4th Cir. 2024) .......................................................... 15-16, 19, 22

United States v. Chester,

628 F.3d 673 (4th Cir. 2010) ........................................................................ 10-13

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ........................................................................... 24

United States v. Duarte,

___ F.4th ___, 2025 WL 1352411 (9th Cir. 2025)(en banc) .............................. 23

United States v. Hunt,

123 F.4th 697 (4th Cir. 2024) ........................................................... 16-17, 19-24

United States v. Moore,

666 F.3d 313 (4th Cir. 2012) ............................................................ 11-12, 16, 18

United States v. Price,

111 F.4th 392 (4th Cir. 2024)(en banc) ........................................... 14-15, 17, 21

United States v. Pruess,

703 F.3d 242 (4th Cir. 2012) ............................................................................. 12

United States v. Rahimi,

602 U.S. 680 (2024) ........................................................................... 14-16, 21-22

United States v. Skoien,

614 F.3d 638 (7th Cir. 2010) ............................................................................. 11

United States v. Smoot,

690 F.3d 215 (4th Cir. 2012) ............................................................................. 12

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) ........................................................................... 24

United States v. Williams,

616 F.3d 685 (7th Cir. 2010) ............................................................................. 11

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Voisine v. United States,

136 S. Ct. 2272 (2016) ....................................................................................... 17

Constitutional Provision

U.S. Const. amend. II ........................................................................................... 1, 8-24

Federal Statutes

18 U.S.C. § 922 ............................................................................................................... 8

18 U.S.C. § 922(g)(1) ..................................................................... 8, 10-12, 15-16, 18-24

18 U.S.C. § 922(g)(9) .................................................................................................... 11

18 U.S.C. § 922(k) ........................................................................................................ 14

18 U.S.C. § 924(a)(2) ...................................................................................................... 8

18 U.S.C. § 3231 ............................................................................................................. 8

18 U.S.C. § 3731 ............................................................................................................. 9

28 U.S.C. § 1254 ............................................................................................................. 7

State Statutes

W. Va. Code § 61-5-29 .................................................................................................. 23

Rules

Sup. Ct. R. 10(a) ........................................................................................................... 20

Sup. Ct. R. 10(c) ........................................................................................................... 20

Sup. Ct. R. 13.1 .............................................................................................................. 7

Sup. Ct. R. 13.3 .............................................................................................................. 7

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Other Authorities and Sources

U.S. Sent’g Comm’n, QuickFacts: Section 922(g) Firearms (May 2025),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quickfacts/Felon_In_Possession_FY24.pdf (last viewed May 26, 2025) ............................. 23

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IV. LIST OF ALL DIRECTLY RELATED PROCEEDINGS

•

United States v. Bever, 2:22-cr-164, U.S. District Court for the Southern

District of West Virginia. Memorandum denying motion to dismiss entered

April 18, 2023, judgment entered August 3, 2023.

•

United States v. Bever, No. 23-4571, U.S. Court of Appeals for the Fourth

Circuit. Judgment entered on March 5, 2025.

V. OPINIONS BELOW

The Fourth Circuit affirmed denial of Bever’s motion to dismiss in an

unpublished per curium decision, United States v. Bever, 2025 WL 702082 (4th Cir.

2025), that is attached to this Petition as Appendix A. The district court’s written

memorandum opinion denying petitioner’s motion to dismiss was a published

decision, United States v. Bever, 669 F. Supp. 3d 578 (S.D. W. Va. 2023), and is

attached to this Petition as Appendix B. The judgment order is unpublished and is

attached to this Petition as Exhibit C.

VI. JURISDICTION

This Petition seeks review of a judgment of the United States Court of Appeals

for the Fourth Circuit entered on March 5, 2025. No petition for rehearing was filed.

This Petition is filed within 90 days of the date the court’s entry of its judgment.

Jurisdiction is conferred upon this Court by 28 U.S.C. § 1254 and Rules 13.1 and 13.3

of this Court.

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VII. STATUTES AND REGULATIONS INVOLVED

This Petition requires interpretation and application of the Second

Amendment to the United States Constitution, which provides, in pertinent 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.

As well as 18 U.S.C. § 922, which provides, in pertinent part:

(g) It shall be unlawful for any person –

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

punishable by imprisonment for a term exceeding one

year;

* * *

to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or

ammunition, or to receive any firearm or ammunition

which has been shipped or transported in interstate or

foreign commerce.

VIII. STATEMENT OF THE CASE

A.

Federal Jurisdiction

On August 24, 2022, a federal grand jury sitting in the Southern District of

West Virginia returned a single count indictment charging Shawn Bever with

possessing a firearm after sustaining a felony conviction, under 18 U.S.C. §§ 922(g)(1)

and 924(a)(2). JA7, 48. 1 Because that charge constitutes an offense against the United

States, the district court had original jurisdiction pursuant to 18 U.S.C. § 3231. The

district court denied petitioner’s Bruen-based motion to dismiss. JA118-130. This is

1 “JA” refers to the Joint Appendix that was filed with the Fourth Circuit in this

appeal.

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an appeal from a final judgment and sentence imposed on August 1, 2023, after Bever

pled guilty to the indictment without a plea agreement. JA131-134; see also Class v.

United States, 138 S. Ct. 798 (2018). A judgment order was entered on August 3, 2023.

JA135-141. Bever timely filed a notice of appeal on August 11, 2023. JA142. The

United States Court of Appeals for the Fourth Circuit had jurisdiction pursuant to

18 U.S.C. § 3731.

B.

Relevant Second Amendment Jurisprudence

In District of Columbia v. Heller, 554 U.S. 570 (2008), this Court rejected the

collectivist, militia-based construction of the Second Amendment that had prevailed

at the time with an individual right to self-defense unconnected with militia service.

Foundational to that individual right, this Court defined the “people” in the Second

Amendment’s plain text as including all members of the political community, not an

unspecified subset. Id. at 579-580. This Court went on to define “the substance of

the right” (i.e. conduct) protected by the Second Amendment as possessing and/or

carrying “arms” for purposes of individual self-defense. Id. at 581-595. Rejecting

Justice Breyer’s interest balancing approach for defining the scope of that individual

right, this Court held that the Second Amendment “surely elevates above all other

interests the right of law-abiding, responsible citizens to use arms in defense of

hearth and home.” Id. at 635.

This Court emphasized that it was not reading the Second Amendment to

protect the right of citizens to carry arms for any sort of confrontation, and that the

right secured by the Second Amendment “is not unlimited.” Heller, 554 U.S. at 595,

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626. This Court further added, without identifying what specific longstanding

prohibitions it was relying on: “[a]lthough we do not undertake an exhaustive

historical analysis today of the full scope of the Second Amendment, nothing in our

opinion should be taken to cast doubt on longstanding prohibitions on the possession

of firearm by felons. Id. at 626; see also id. at 627 n.26 (“We identify these

presumptively lawful regulatory measures only as examples”). This Court concluded

by acknowledging that Heller was its first in-depth examination of the Second

Amendment, that it was not intended to clarify the field, and that “[t]here will be

time enough to expound upon the historical justifications for the exceptions . . . when

those exceptions come before us.” Id. at 635.

Before Heller’s ink was dry, the United States seized upon the “longstanding

prohibitions,” “presumptively lawful,” and “law-abiding and responsible citizen”

language as if it was the controlling substance of this Court’s holding. Based upon

Heller’s dicta, the United States has consistently maintained since 2008 that

(a) Second Amendment protections only apply to law-abiding and responsible

citizens, and (b) by virtue of Heller’s presumptively lawful comment, a presumption

of constitutionality applies to regulations like 18 U.S.C. § 922(g)(1) which

permanently disarms convicted felons. The Fourth Circuit (as well as other lower

courts), ultimately accepted the Government’s assertions, adopting an intermediate

scrutiny standard to adjudicate diminished Second Amendment protections for

persons who were not “law-abiding and responsible” citizens (however those terms

were supposed to be defined). See, e.g., United States v. Chester, 628 F.3d 673, 678

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(4th Cir. 2010). Because the Second Amendment codified a pre-existing right, and

because Heller said the scope of Second Amendment protections is subject to

historical limitation, Chester adopted a two-step test for analyzing Second

Amendment challenges. Chester’s first step combined a textual and historical inquiry

regarding the Second Amendment’s scope at the time of its ratification with whether

the challenged regulation burdened otherwise protected conduct. Id. at 680. If the

regulation did, then Chester’s second step was to apply the appropriate level of means

end scrutiny. Ibid. Chester placed the burden for the historical step one inquiry on

the defendant, and for the step two means-end scrutiny inquiry on the United States.

Thereafter,

as

Heller-based

Second

Amendment

litigation

on

the

constitutionality of different Gun Control Act sections ensued, the Fourth Circuit held

that Heller’s “presumptively lawful” dicta foreclosed facial Second Amendment

challenges to § 922(g)(1) outright, full stop. United States v. Moore, 666 F.3d 313, 316319 (4th Cir. 2012). This was despite having previously found, in the context of

analyzing a Second Amendment challenge to 18 U.S.C. § 922(g)(9), that federal felon

disarmament laws did not exist until the Twentieth Century, and that the historical

evidence

on whether felons enjoyed Second Amendment

protections was

inconclusive. 2 Chester, 628 F.3d at 679. While still allowing for possible as-applied

It did so following similar findings by the Seventh Circuit in both United States v.

Williams, 616 F.3d 685 (7th Cir. 2010), and Judge Sykes’ dissent in United States v.

Skoien, 614 F.3d 638, 649 (7th Cir. 2010). Moore’s approach, particularly after Bruen,

however, raises questions as to what the Heller was referring to and actually meant

by “longstanding.” At least with respect to Congress, it could not go back beyond 1961

and the Federal Firearms Act.

2

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challenges to § 922(g)(1), due to Heller’s presumptively lawful language, Moore

limited the availability of such challenges to individuals who could show that they

were outside the mine-run convicted felon case. Ultimately, Moore held that this

placed the burden on the challenger in Chester’s step one to show their factual

circumstances were those of a law-abiding, responsible citizen. Moore, 666 F.3d at

319-320.

The Fourth Circuit took Moore further in United States v. Smoot, 690 F.3d 215,

220-221 (4th Cir. 2012), holding that a felon convicted of a prior violent offense was

incapable of possessing a firearm in his home like a law-abiding responsible citizen.

United States v. Pruess, 703 F.3d 242 (4th Cir. 2012), in turn, denied an as-applied

Second Amendment challenge based a non-violent felony conviction for the same

reason. Then Hamilton v. Pallozzi, 848 F.3d 614, 625 (4th Cir. 2017), a civil challenge

to Maryland firearm regulations, finally cut the cord - holding that as-applied

challenges to felon disarmament laws were foreclosed unless that citizen had received

a pardon or the law forming the basis of the predicate conviction had been declared

unconstitutional or otherwise unlawful. Crucial for this Petition’s purposes,

particularly given the Fourth Circuit’s future reliance on Hamilton, is that any

historical inquiry regarding the Second Amendment’s scope was supplanted by “the

more direct question of whether the challenger’s conduct is within the protected

Second Amendment right of ‘law-abiding, responsible citizens to use arms in defense

of hearth and home.’” Hamilton, 848 F.3d at 624. For Hamilton, any disrespect for

the law was sufficient to deny Second Amendment protection, no matter how old the

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prior conduct, whether it was non-violent, and no matter what steps the individual

citizen had taken after the fact to rehabilitate themselves and avoid further

recidivism. Instead, Hamilton not only limited as-applied Second Amendment

challenges to felon disarmament laws to law-abiding and responsible citizens, it

expressly held that the relative seriousness of the predicate conviction, or evidence of

rehabilitation, the likelihood of recidivism, and the passage of time, “may not be

considered at the first step of the Chester inquiry.” Id. at 626-629.

Five years after Hamilton, and fourteen years after Heller, in New York State

Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), this Court dispensed with means end

scrutiny for Second Amendment challenges altogether. Bruen effectively eliminated

Chester’s step two, instead establishing a “text and history” framework for analyzing

whether a firearm regulation violates the Second Amendment. Specifically, when the

Second Amendment’s plain text covers an individual’s conduct, the Constitution

presumptively protects that conduct. To justify its regulation, the Government must

then demonstrate that the challenged regulation is consistent with this Nation’s

historical tradition of firearm regulation. Id. at 17. Structurally, Bruen’s text and

history standard now involves two distinct inquiries or steps, much the way Chester’s

post-Heller standard did. The Fourth Circuit’s post-Heller steps, however, were

substantially different from this Court’s post-Bruen steps. Where Chester’s step one

combined a textual and historical inquiry regarding the scope of Second Amendment

protections, Bruen’s split the analysis into two separate inquiries. The first is textual,

simple, and arguably intended to provide meaningful deference to Second

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Amendment protections. The second consults history, and requires an affirmative

showing of a well-established and representative tradition of firearm regulation

consistent with the statute being challenged. Bruen’s second step places the burden

squarely on the Government to establish the historical tradition supporting the

challenged modern firearm regulation.

Yet, in the Fourth Circuit, little has changed in the wake of this Court’s

decision in Bruen. In United States v. Price, 111 F.4th 392 (4th Cir. 2024)(en banc),

the court addressed whether 18 U.S.C. § 922(k), which makes it a crime to possess a

firearm with an altered serial number, violates the Second Amendment. In

overturning the district court’s grant of a motion to dismiss on that basis, the court

concluded that “the conduct regulated by § 922(k) does not fall within the scope of the

right enshrined in the Second Amendment because a firearm with a removed,

obliterated, or altered serial number is not a weapon in common use for lawful

purposes.” Id. at 397. Recognizing that “Bruen set forth a new framework” from the

one that developed in the wake of Heller, the court stated that “[f]irst, we must ask

whether the Second Amendment’s plain text covers the conduct at issue. If not, that

ends the inquiry.” Id. at 398. Only if that conduct is covered must the court “ask

whether the Government has justified the regulation as consistent with the

‘principles that underpin’ our nation’s historical tradition of firearm regulation.” Ibid.

citing United States v. Rahimi, 602 U.S. 680, 692 (2024). The court rejected Price’s

argument that “our inquiry at step one is extremely narrow” and “the only relevant

question is whether the regulation criminalizes ‘keep[ing] and bear[ing]’ any ‘Arms,’”

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id. at 398, concluding that “we can only properly apply the step one of the Bruen

framework by looking to the historical scope of the Second Amendment right.” Id. at

401.

Next, in United States v. Canada, 123 F.4th 159 (4th Cir. 2024), the court

addressed facial challenges to § 922(g)(1). Noting that the “law of the Second

Amendment is in flux, and courts (including this one) are grappling with many

difficult questions” in the wake of Bruen and Rahimi, the court concluded that “the

facial constitutionality of Section 922(g)(1) is not one of them.” Id. at 161. The court

concluded that it “need not – and thus do not – resolve whether Section 922(g)(1)’s

constitutionality turns on the definition of the ‘people’ at step one of Bruen,” or “a

history and tradition of disarming dangerous people considered at step two of Bruen,”

or even this Court’s “repeated references to longstanding and presumptively lawful

prohibitions on the possession of firearms by felons.” Ibid. (cleaned up). Nor did the

court decide “whether Bruen or Rahimi sufficiently unsettled the law in this area to

free use from our otherwise-absolute obligation to follow this Court’s post-Heller but

pre-Bruen and pre-Rahimi holdings rejecting” challenges to § 922(g)(1). Ibid. Instead,

the court concluded that § 922(g)(1) “is facially constitutional because it has a plainly

legitimate sweep and may be constitutional in at least some set of circumstances,”

ibid. (cleaned up), noting examples such as those convicted “of a drive-by shooting,

armed bank robbery, or even assassinating the President of the United States.” Id.

at 161-162. Canada is thus noteworthy as much for what it did not decide as for what

it did.

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Finally, in United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), the court

addressed as-applied challenges to § 922(g)(1). Deciding one of the issues left

unsettled after Canada, the Court concluded that “neither Bruen nor Rahimi

abrogates this Court’s precedent foreclosing as-applied challenges to Section

922(g)(1),” as well as that “in the alternative . . . that Section 922(g)(1) would pass

constitutional muster even if we were unconstrained by circuit precedent.” Id. at 702.

Noting that the court had concluded in a related Second Amendment area that

neither Bruen nor Rahimi changed existing law, 3 it reached the same conclusion with

regard to § 922(g)(1), concluding that Moore remained good law, as it relied on Heller’s

dicta regarding longstanding prohibitions on the possession of firearms by felons. Id.

at 702-703. While recognizing that Moore “left open the possibility that some

hypothetical challenger” could prevail in an as-applied challenge, “this Court’s later

decisions repeatedly rejected such challenges, including those brought by allegedly

non-violent felons.” Id. at 703 (cleaned up). Relying on Hamilton, the court reiterated

its post-Heller holding that felons are excluded from the “category of law abiding,

responsible citizens” protected by the Second Amendment. Ibid. (cleaned up). Such

decisions are “neither impossible to reconcile with Bruen and Rahimi nor rest on a

mode of analysis that has been rendered untenable by them.” Ibid.

Increased Second Amendment deference was an intended consequence of

Bruen, which does not make the step one inquiry complicated or difficult. This

See Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024)(en banc)(rejecting Second

Amendment challenge to Maryland assault weapons regulations).

3

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approach did not just materialize out of thin air in 2022. Prior to Bruen, for fourteen

years Justice Thomas had consistently observed both the states and lower federal

courts were resisting this Court’s decisions in Heller and McDonald v. City of Chicago,

561 U.S. 742 (2010), by failing to protect Second Amendment rights to the same

extent they protected other constitutional rights. 4 Bruen was the predictable reaction

to this. The Fourth Circuit, including the panel in this case, has now similarly

misapplied Bruen’s step one, in a manner that imitates intermediate means-end

scrutiny by continuing to avoid meaningful historical justification of regulations

burdening Second Amendment protections. Hunt relies on Price for the proposition

that historical limits on the scope of Second Amendment protections are properly

assessed at Bruen’s step one. Hunt, 123 F.4th at 705. Yet Hunt’s reliance on Hamilton

validates abrogating Bruen’s intended historical inquiry with merely confirming that

the underlying predicate conviction is a felony – thereby ensuring the challenging

citizen “flunks” the law-abiding citizen test.

4 See, e.g., Rogers v. Grewal, 140 S. Ct. 1865, 1866 (2020)(appeal of New Jersey may

issue carry permit requirement and near-total prohibition on public carry: “many

courts have resisted our decisions in Heller and McDonald.”); New York State Rifle &

Pistol Ass’n v. City of New York, NY, 590 U.S. 336, 340-341 (2020)(appeal of New York

firearm license ordinance, dismissed as moot when city amended ordinances during

appeal; Justice Alito dissent joined by Justice Gorsuch and Justice Thomas); Silvester

v. Becerra, 138 S. Ct. 945, 950-951 (2018)(appeal of California’s 10-day waiting/

cooling off period for firearm purchases); Peruta v. California, 137 S. Ct. 1995, 1999

(2017)(appeal of California’s prohibition of public carry and carrying concealed

firearms in public); Voisine v. United States, 136 S. Ct. 2272, 2291-92 (2016)(appeal

of denying Second Amendment protections based on reckless misdemeanor conduct);

Friedman v. Highland Park, 136 S. Ct. 447, 449 (2015)(appeal of Illinois’ AR-style

rifle and large capacity magazine bans); Jackson v. City and County of San Francisco,

California, 135 S. Ct. 2799, 2800-02 (2015)(appeal of California ordinance requiring

trigger locks for handguns stored in residences).

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C.

Facts Pertinent to the Issue Presented

On November 17, 2021, officers with the West Virginia Department of Natural

Resources were investigating a bear poaching incident near Craigsville, Nicholas

County, West Virginia. Officers received information that the bear had been shot.

Officers trying to locate the shooter went to his residence, were advised he was not

home, and that he may have been at Bever’s residence. JA145. The DNR officers went

to Bever’s residence and found Bever and the alleged shooter standing outside. DNR

officers observed a side-by-side off-road vehicle with a pistol clipped to the driver’s

side seat. DNR Officers knew Bever had a prior felony conviction. A record check

revealed that the side-by-side vehicle belonged to Bever. Without observing Beaver

ever possessing the pistol, or operating or otherwise sitting in the side-by-side, the

DNR officers arrested Bever for unlawfully possessing that firearm. Searching

Bever’s person, officers located three unfired .22 caliber cartridges. In the side-byside, officers located 169 .22 caliber rounds, an ATI .22 caliber pistol, four 12-gauge

shotgun shells, and several spent .22 caliber shell casings. JA146.

1. The district court denies Bever’s motion to dismiss, finding

Moore’s reliance on Heller’s presumptively lawful dicta was

unaffected by Bruen’s rejection of means end scrutiny.

Bever filed a motion to dismiss the indictment, arguing § 922(g)(1) violated the

Second Amendment. Bever argued that he was one of “the people” protected by the

Second Amendment as defined by Heller, and that his possession of any .22 caliber

pistol and ammunition at his home was conduct protected by the Second Amendment.

Under the text and history standard set forth in Bruen, Bever argued § 922(g)(1)

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triggered application of a presumption of unconstitutionality by burdening firearm

possession at his home – conduct within the plain text of the Second Amendment.

Because the Government could not rebut Bruen’s step one presumption of

unconstitutionality for § 922(g)(1), Bever maintained that his indictment should be

dismissed. JA30-JA61, JA76-JA117.

The district court denied Bever’s motion, without applying Bruen’s new Second

Amendment standard at all. United States v. Bever, 669 F. Supp. 3d 578 (S.D. W. Va.

2023). After discussing varying approaches being applied by different courts around

the country, it defaulted to Moore’s streamlined analysis tied to Heller’s dicta. The

district court ultimately held that Bever’s not being a law-abiding and responsible

citizen alone was enough to dismiss both his facial and as-applied challenges, noting

the “overwhelming consensus” of other courts sustaining the constitutionality of

§ 922(g)(1).” Bever, 669 F. Supp. 3d at 583.

2. The Fourth Circuit summarily affirms the denial of Bever’s

motion to dismiss in a per curium opinion without oral

argument based on intervening circuit law.

The Fourth Circuit affirmed the denial of Bever’s motion to dismiss in an

unpublished per curiam opinion. United States v. Bever, 2025 WL 702082 (4th Cir.

2025). The court concluded that Bever’s facial Second Amendment challenge to

§ 922(g)(1) was foreclosed by United States v. Canada, 123 F.4th 159 (4th Cir. 2024),

while any as-applied challenge was foreclosed by United States v. Hunt, 123 F.4th

697 (4th Cir. 2024), both of which had been decided after the district court’s ruling in

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Bever’s case. On these grounds, the Fourth Circuit affirmed denial of Bever’s motion

to dismiss. Bever, 2025 WL 702092 at *1.

IX. REASONS FOR GRANTING THE WRIT

The writ should be granted to determine whether, when

analyzing a challenge to a firearm regulation like 18 U.S.C.

§ 922(g)(1), Second Amendment protections are limited to “lawabiding citizens” who have never been convicted of a crime.

Bever seeks this Court’s review of the decision of the Fourth Circuit Court of

Appeals summarily following United States v. Hunt, 123 F.4th 697 (4th Cir. 2024),

because both have decided an important question of federal constitutional law that

has not been, but certainly should be, settled by this Court. See Rules of the Supreme

Court 10(c). That is, whether, when analyzing a challenge to a firearm regulation

under the Second Amendment, Second Amendment protections only apply to “lawabiding citizens” who have never been convicted of any crime. The Fourth Circuit has

also decided that important federal constitutional question in a way which conflicts

with the plain text of the Second Amendment as well as relevant decisions of this

Court. In addition, the Court should separately accept review because Bever,

following Hunt, directly conflicts with cases from the Third, Sixth, and Fifth Circuits

on the same and related important constitutional questions and where the split of

authorities is both likely to grow and spill over into litigation involving other federal

firearm regulations. See Rules of the Supreme Court 10(a).

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A.

Bever/Hunt conflicts with the plain text of the Second

Amendment, as well as with this Court’s precedents by

failing to apply the historical analysis and allocation of

burdens required by the Bruen/Rahimi framework.

Just as the Second Amendment’s plain text makes no distinction between

keeping and bearing arms in the home as opposed to in public outside the home, it

likewise makes no textual distinction as to what citizens can or cannot keep and bear

arms. The Fourth Circuit’s conclusion that only law-abiding citizens are entitled to

Second Amendment protections, therefore, contradicts the plain text of the

amendment itself.

Heller broadly defined “the people” in the Second Amendment’s plain text,

which is contradicted by the Fourth Circuit’s § 922(g)(1) jurisprudence, which

effectively defines “the people” as including only law-abiding citizens. 5 Neither Heller

nor Rahimi limit the Second Amendment’s scope to that discrete subsection of the

American population. Yet the Fourth Circuit, in the place of any historical analysis

Bruen now requires, has done so since at least 2010.

The Fourth Circuit has now repeatedly held that the analysis under Bruen’s

step one must include an evaluation of the historical scope of the Second Amendment

right. United States v. Price, 111 F.4th 392, 401 (4th Cir. 2024)(en banc). If true, then

Bruen’s step two historical analysis becomes meaningless. Historical analysis in

Bruen’s step one, which places the burden on the regulation’s challenger, will

Before Rahimi, the Fourth Circuit only extended Second Amendment protections

to “law-abiding, responsible citizens.” See Hunt, 123 F.4th at 703 (emphasis

removed); See also United States v. Rahimi, 602 U.S. 680, 701, 772 (2024)(Thomas,

J., dissenting).

5

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effectively ensure no historical analysis is ever conducted at Bruen’s step two,

particularly with the Fourth Circuit’s abbreviated law-abiding citizen standard. This

effectively returns to the means-end scrutiny analysis this Court has repeatedly

rejected.

The Fourth Circuit’s post-Heller efforts to effectively enshrine the Gun Control

Act of 1968 is not what the Second Amendment or this Court’s precedents

countenance. Since Heller was decided, the Government (with the help of many

courts) has tried to rewrite the Second Amendment to only protect “law-abiding”

citizens. See Rahimi, 602 U.S. at 772-773 (Thomas, J., dissenting). Prior to Hunt, the

Government’s claim plainly lacked any basis in this Court’s precedents or the Second

Amendment’s text, such that it was “specious at best.” Rahimi, at 772 (Thomas, J.,

dissenting). The Fourth Circuit in Hunt nevertheless adopted and advanced the

Government’s ill-conceived positions such that they are now the controlling law in at

least five states. Bever and Hunt must be reviewed and addressed by this Court.

B.

Circuit decisions on the availability of and requirements

for Second Amendment challenges to § 922(g)(1) have

created a split of authority that cannot be reconciled

without this Court’s intervention.

Through United States v. Canada, 123 F.4th 159 (4th Cir. 2024), and United

States v. Hunt, 123 F.4th 697 (4th Cir. 2024), the Fourth Circuit has completely

foreclosed Second Amendment challenges to § 922(g)(1). holding that neither Bruen

nor Rahimi affected Hamilton. Thus, even after Bruen, any citizen with a criminal

conviction in West Virginia, Maryland, Virginia, North Carolina, or South Carolina

may be permanently disarmed for a prior criminal conviction without that restriction

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being subjected to the historical analysis Bruen requires. It does not matter if the

predicate conviction was for a non-violent offense, a “minor” felony, how old it was, or

what steps the convicted citizen has taken to lead a law-abiding life. This means the

West Virginia citizen convicted for non-payment of child support, W. Va. Code

§ 61-5-29 (over 12 months or for an arrearage of at least $8,000 – punishable by up to

3 years imprisonment), now has no recourse to pursue an as-applied Second

Amendment challenge to § 922(g)(1). According to the Fourth Circuit, any felony

conviction is for a “serious” enough crime to warrant permanent status-based

disarmament. This is a common circumstance with many individuals in West

Virginia faced with residential, employment, and food instability/insecurity. Once

convicted of non-payment of child support, or similar non-violent offenses (such as

simple possession of a controlled substance), Hunt mandates such citizens are now

legal nonconformists who may be forever disarmed and subject to subsequent

criminal prosecution when they possess a firearm for purposes of self-defense in their

home. The reach of § 922(g)(1) impacts thousands of defendants every year. 6

The existing circuit split on the availability of as-applied challenges to

§ 922(g)(1) is well summarized in United States v. Duarte, ___ F.4th ___, 2025 WL

1352411 (9th Cir. 2025)(en banc). Hunt has placed the Fourth Circuit in line with at

least four other circuits effectively foreclosing as-applied Second Amendment

6 61,678 cases were reported to the Sentencing Commission for FY 2024, of which

7419 involved felony convictions under § 922(g), of which 90.4%, or 6707 defendants,

were convicted under § 922(g)(1). See U.S. Sent’g Comm’n, QuickFacts: Section 922(g)

Firearms (May 2025), https://www.ussc.gov/sites/default/files/pdf/research-andpublications/quick-facts/Felon_In_Possession_FY24.pdf (last viewed May 26, 2025).

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challenges to felon disarmament laws. These circuits are in direct conflict with the

Third, Fifth, and Sixth Circuits, with the former actually sustaining an as-applied

challenge to § 922(g)(1), and the remaining two denying challenges but leaving open

the door for other defendants to raise them. See Range v. Att’y Gen., 124 F.4th 218

(3d Cir. 2024)(en banc); United States v. Williams, 113 F.4th 637 (6th Cir. 2024);

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

X. CONCLUSION

In 2008 this Court stated “[t]here will be time enough to expound upon the

historical justifications for the exceptions . . . when those exceptions come before us.”

Heller, 554 U.S. at 635. This Petition squarely presents the controlling federal

constitutional question of whether Second Amendment protections only apply to a yet

to be defined subset of “law-abiding citizens.” Given how lower courts, like the Fourth

Circuit in Bever and Hunt, are using the “law-abiding citizen” metric to broadly

exclude individual citizens from fundamental Second Amendment protections, it is

past time for this Court to expound upon Heller’s “presumptively lawful” dicta and

correct how that language is being used to enshrine virtually every modern firearm

regulation at the expense of Second Amendment protections intended by our

Constitution. For the reasons stated, therefore, this Court should grant this Petition.

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Respectfully submitted,

SHAWN BEVER

By Counsel

WESLEY P. PAGE

FEDERAL PUBLIC DEFENDER

Lex A. Coleman

Senior Litigator

Counsel of Record

Jonathan D. Byrne

Appellate Counsel

Dated: June 3, 2025

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