Reply Brief — Diontai Moore, Petitioner v. United States

No. 24-968

In the

Supreme Court of the United States

__________________________________________________________________

DIONTAI MOORE,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

________________

REPLY BRIEF

________________

ERIN E. MURPHY

MATTHEW D. ROWEN

MITCHELL K. PALLAKI

CLEMENT &

MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

ELISA A. LONG

STACIE M. FAHSEL

Counsel of Record

RENEE D. PIETROPAOLO

SAMANTHA L. STERN

FEDERAL PUBLIC

DEFENDER FOR

THE WESTERN

DISTRICT OF

PENNSYLVANIA

1001 Liberty Avenue

Suite 1500

Pittsburgh, PA 15222

Stacie_Fahsel@fd.org

Counsel for Petitioner

June 10, 2025

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

REPLY BRIEF ............................................................ 1

I.

The Decision Below Is Egregiously Wrong ......... 2

II. As The Government Acknowledges, Courts Of

Appeals Have Hopelessly Fractured Over

How To Address As-Applied Challenges To

§922(g)(1) ............................................................. 6

III. This Case Is An Appropriate Vehicle To

Address This Exceptionally Important

Question ............................................................... 8

CONCLUSION ......................................................... 11

ii

TABLE OF AUTHORITIES

Cases

Dial v. United States,

2025 WL 1426660 (U.S. May 19, 2025) ................... 7

Ex parte Parker,

131 U.S. 221 (1889) ................................................ 10

Gray v. United States,

2025 WL 1020352 (U.S. Apr. 7, 2025) ..................... 7

Greenlaw v. United States,

554 U.S. 237 (2008) .................................................. 3

Morrissette v. United States,

2025 WL 951148 (U.S. Mar. 31, 2025) .................... 7

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) .................................................. 3, 5

People v. Burns,

79 N.E.3d 159 (Ill. 2015).......................................... 4

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ................................ 10

United States v. Duarte,

137 F.4th 743 (9th Cir. 2025) .................................. 7

United States v. Gay,

98 F.4th 843 (7th Cir. 2024) .................................... 6

United States v. Giglio,

126 F.4th 1039 (5th Cir. 2025) ................................ 5

United States v. Goins,

118 F.4th 794 (6th Cir. 2024) .................................. 5

United States v. Jackson,

121 F.4th 656 (8th Cir. 2024) .................................. 8

United States v. Moore,

2025 WL 711119 (5th Cir. Mar. 5, 2025) .............. 10

iii

United States v. Morton,

123 F.4th 492 (6th Cir. 2024) .............................. 6, 8

United States v. Peck,

131 F.4th 629 (8th Cir. 2025) ................................ 10

United States v. Perez-Garcia,

96 F.4th 1166 (9th Cir. 2024) .................................. 7

United States v. Rahimi,

602 U.S. 680 (2024) .................................................. 5

Williams v. Illinois,

399 U.S. 235 (1970) .................................................. 4

Williams v. United States,

2025 WL 1603600 (U.S. June 6, 2025) .................... 7

Statutes

18 U.S.C. §922(g)(1) .................................................... 2

18 U.S.C. §925(c) ........................................................ 9

Other Authorities

Br. in Opp., Jackson v. United States,

No. 24-6517 (U.S. May 19, 2025)............................. 8

U.S. Supp. Br., Garland v. Range,

Nos. 23-374, 23-683, 23-6170, 23-6602,

& 23-684 (U.S. June 24, 2024) .............................. 10

REPLY BRIEF

The government’s brief in opposition confirms the

need for this Court’s intervention. The government

does not meaningfully address the core problem with

the decision below—namely, that it affirmed Moore’s

§922(g)(1) conviction and seven-year sentence without

addressing whether the Second Amendment permits

sending someone to prison for possessing a firearm

after having been convicted of his predicate crimes.

The government instead merely notes that three other

circuits have used the same faulty logic to pretermit

as-applied challenges to §922(g)(1) brought by

defendants on supervised release, probation, or

parole. BIO.5. But two of those circuits simply

followed the deeply flawed reasoning of the Third

Circuit in the decision below—reasoning that squarely

contravenes this Court’s precedent. The fact that the

decision below is emblematic of (and has spurred) a

common misapplication of the as-applied framework

to Second Amendment challenges to §922(g)(1) is a

mark in favor of certiorari, not against it.

Indeed, the courts of appeals are all over the map

when it comes to the proper methodology for

addressing as-applies challenges to §922(g)(1). As the

government reluctantly acknowledges, the courts of

appeals are split over whether to permit as-applied

challenges at all, and—in circuits where such

challenges are permitted—what facts to consider. The

lower courts desperately need this Court’s guidance.

And while the government claims that this is a poor

vehicle because (it says) Moore’s §922(g)(1) conviction

would be upheld under the proper analysis, BIO.6-7,

that is both wrong and irrelevant, as that issue was

2

never resolved by the Third Circuit owing to the

court’s use of his supervised-release status to skirt it.

That is both why Moore seeks this Court’s review and

why his petition is an effective vehicle for addressing

the predicate methodological question. The Court

should grant certiorari to correct the growing

confusion and division over the proper analysis for asapplied Second Amendment challenges to §922(g)(1).

At the very least, the Court should summarily reverse

with instructions for the Third Circuit to assess the

constitutionality of §922(g)(1) as applied to the

conduct that actually gave rise to Moore’s conviction.

I.

The Decision Below Is Egregiously Wrong.

The Third Circuit’s decision to affirm Moore’s

conviction and reject his as-applied challenge based on

characteristics not proscribed by 18 U.S.C. §922(g)(1)

is indefensible in both methodology and application.

The upshot of that approach is to empower the

government to defend a conviction against Second

Amendment challenge without ever having to defend

the constitutionality of the law under which the

defendant was convicted. The fundamental error and

miscarriage of justice in that (il)logic is palpable and

cries out for course correction.

Section 922(g)(1) renders it unlawful for a felon—

a person “convicted … of[] a crime punishable by

imprisonment for a term exceeding one year”—to

possess a firearm. 18 U.S.C. §922(g)(1). So when

Moore argued that the government could not punish

him under §922(g)(1) consistent with the Second

Amendment, the government should have been

required to defend his conviction by showing that the

prohibition on that conduct is consistent with “the

3

Nation’s historical tradition of firearm regulation.”

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 24

(2022). That, in turn, means it needed to identify

historical regulations imposing analogous restrictions

on firearm possession by individuals with comparable

criminal records. See Pet.16-17.

But that is not what happened. Rather than put

the government to its constitutional burden, the Third

Circuit decided that it can sustain a conviction under

§922(g)(1) against a Second Amendment challenge so

long as any potential characteristics of the defendant

could supply a valid historical basis for dispossession.

App.13. The court thus proceeded to ignore that

Moore was charged, convicted, and sentenced to 84

months in prison under §922(g)(1) because of his felon

status, and sustained that conviction and sentence

against Second Amendment attack for a different

reason entirely—namely, because Moore was on

supervised release at the time of the §922(g)(1)

offense. App.6-11. The Third Circuit accordingly

affirmed a conviction and seven-year sentence for one

crime on the theory that the defendant could

constitutionally have been convicted of another.1

Remarkably, the government claims that the

decision below “does not conflict with any decision of

this Court.” BIO.4. But its paltry two-and-a-half page

1 The decision below is particularly problematic because the

government succeeded in extending Moore’s sentence by another

12 months via a separate conviction for possessing a firearm

while on supervised release. Pet.19. Had Moore appealed that

judgment, the question the Third Circuit chose to analyze would

have been properly presented. See Greenlaw v. United States,

554 U.S. 237, 252-53 (2008). But Moore did not.

4

substantive response to Moore’s petition, see BIO.4-7,

does not engage with any of the (several) cases from

this Court cited in the petition that directly reject the

Third Circuit’s approach, see Pet.14-17. Most striking,

the government does not bother to address Williams v.

Illinois, 399 U.S. 235 (1970)—even though Williams is

the lead argument in the petition. See Pet.14-16.

Perhaps that is because there is nothing the

government could say. Williams makes plain as day

that the government cannot defend a conviction by

arguing that it could have deprived someone of their

liberty for some reason other than the one underlying

the conviction. As the Court there explained, the fact

that “the legislature could have achieved the same

result by some other means” “does not resolve” the

question whether the statute that was actually

enforced is constitutional (or has been applied

constitutionally). 399 U.S. at 238-39. After all, it is

black-letter law that “[a]n unconstitutional statute

does not ‘become constitutional’ simply because it is

applied to a particular category of persons who could

have been regulated, had the legislature seen fit to do

so.” People v. Burns, 79 N.E.3d 159, 165-66 (Ill. 2015).

Just so here. The government cannot send Moore to

prison for seven years for violating §922(g)(1) just

because it claims that it could have punished him

(albeit not nearly to the same extent) for the separate

reason that he was on supervised release.

Nothing in Bruen or Rahimi provides any basis to

depart from that long-settled rule in the Second

Amendment context. Those decisions require courts

to compare the “how and why” of historical regulations

and the challenged law to determine whether they

5

“impose a comparable burden” on the arms-bearing

right. Bruen, 597 U.S. at 29; United States v. Rahimi,

602 U.S. 680, 692 (2024). That instruction in no way

empowers courts to strike out on their own in search

of hypothetical grounds for the loss of Second

Amendment rights that are not relevant to the law

being challenged—especially in a criminal case where

the defendant is challenging not just the loss of Second

Amendment rights, but also the deprivation of liberty

for exercising them.

The government claims, in conclusory fashion,

that the Third Circuit appropriately considered

Moore’s supervised-release status because as-applied

challenges require courts to assess the circumstances

surrounding a statute’s contested application. BIO.6.

But “whether a statute’s ‘application to a particular

person under particular circumstances deprived that

person of a constitutional right,’” BIO.6, turns on how

the challenged law applies to the defendant. A

prohibition on felon firearm possession affects Moore

because of his felony record, not because of any other

characteristics of his background. So even under the

government’s logic, the Third Circuit’s decision cannot

stand. The only relevant characteristic that should

have been addressed was Moore’s felon status.

With little to say in defense of the Third Circuit’s

approach, the government notes that several courts of

appeals have employed the same (faulty) reasoning.

BIO.5 (citing United States v. Giglio, 126 F.4th 1039

(5th Cir. 2025); United States v. Goins, 118 F.4th 794

(6th Cir. 2024); United States v. Gay, 98 F.4th 843 (7th

6

Cir. 2024)).2 But an egregious error does not become

more tolerable with repetition. To the contrary, the

fact that multiple courts have been led astray in this

manner in Second Amendment cases, despite the

mountain of precedent from this Court rejecting that

approach in every other conceivable context, see

Pet.14-17, is a clarion call for this Court to provide

direction on how to resolve as-applied challenges to

§922(g)(1) convictions. See United States v. Morton,

123 F.4th 492, 498 n.2 (6th Cir. 2024). The Court

should not allow individuals to continue to face

lengthy prison sentences for constitutionally dubious

convictions under §922(g)(1) on the theory that they

could constitutionally have been convicted of a lesser

crime that carries a lesser sentence.

II. As The Government Acknowledges, Courts

Of Appeals Have Hopelessly Fractured Over

How To Address As-Applied Challenges To

§922(g)(1).

Given the glaring conflict between the Third

Circuit’s approach here and this Court’s precedent,

the Court should, at a minimum, vacate and remand

for the Third Circuit to address whether §922(g)(1)—

not some hypothetical statute that applies only to

those on supervised release—is constitutional, both

facially and as applied to Moore based on his felony

record. But as the petition explained, and the

government agrees, courts are squarely divided on

whether defendants can ban bring as-applied Second

Amendment challenges to §922(g)(1) at all. Pet.22-28.

2 Giglio and Goins both just followed the decision below.

7

That conflict readily warrants the Court’s review, and

this is an appropriate case in which to resolve it.

The government forthrightly acknowledges the

“disagreement among the courts of appeals regarding

the availability of individualized as-applied

challenges to Section 922(g)(1).” BIO.4. And rightly

so, as the Third, Fifth, and Sixth Circuits allow

individuals to bring as-applied challenges to

§922(g)(1), Pet.23-26, whereas the Fourth, Eighth,

Tenth, and Eleventh Circuits have held that felon

dispossession is categorically permissible, Pet.26-28.

The Ninth Circuit likewise recently joined the latter

ranks, see United States v. Duarte, 137 F.4th 743, 76162 (9th Cir. 2025) (en banc), even though that

approach inexplicably diverges from its earlier

decision in United States v. Perez-Garcia, 96 F.4th

1166, 1182-84 (9th Cir. 2024), where the court

(correctly) compared how the challenged statute

restricted the defendant’s Second Amendment rights

to how analogous historical firearm regulations

operated.

Contra BIO.4, this is therefore not some

“shallow,” short-lived methodological disagreement.

Courts have long divided on this issue and continue to

do so—even though this Court has vacated several

judgments from the Eleventh Circuit rejecting

defendants’ as-applied challenges to §922(g)(1) out-ofhand. See, e.g., Williams v. United States, 2025 WL

1603600 (U.S. June 6, 2025); Dial v. United States,

2025 WL 1426660 (U.S. May 19, 2025); Gray v. United

States, 2025 WL 1020352 (U.S. Apr. 7, 2025);

Morrissette v. United States, 2025 WL 951148 (U.S.

Mar. 31, 2025). The government has tried to downplay

8

the split by alluding to disagreement in the courts that

do permit as-applied challenges about which felonies

can justify disarmament consistent with the Second

Amendment. See BIO 13-14, Jackson v. United States,

No. 24-6517 (U.S. May 19, 2025). But that has nothing

to do with the methodological split Moore asks this

Court to review, as no application of §922(g)(1) will be

held unconstitutional in circuits that have

categorically foreclosed as-applied challenges.

In short, there is an open and acknowledged split

on the appropriate methodological approach for

resolving as-applied challenges to §922(g)(1). And

courts and jurists have implored this Court to resolve

that split, emphasizing its incredible practical

importance. See Morton, 123 F.4th at 498 n.2; United

States v. Jackson, 121 F.4th 656, 660 (8th Cir. 2024)

(Stras, J., dissenting from the denial of rehearing en

banc). It is high time the Court does so.

III. This Case Is An Appropriate Vehicle To

Address This Exceptionally Important

Question.

The government does not dispute that the proper

analysis of Second Amendment challenges to

§922(g)(1) is an exceptionally important issue that

affects the rights of millions of Americans. Nor could

it. See Pet.29-30. Instead, the government claims that

this case is a poor vehicle because the Department of

Justice “may” in its discretion start removing firearm

disabilities under 18 U.S.C. §925(c) for some

categories of individuals, BIO.4-5, and because (it

thinks) Moore’s as-applied challenge would fail under

the proper framework, BIO.6-7. Far from being

9

reasons to deny certiorari, both contentions confirm

that this case is well-suited for this Court’s review.3

First, the government’s §925(c) argument is a red

herring. Section 925(c) allows individuals with felony

convictions to apply to the Attorney General, who

“may” remove the firearm disability under §922(g)(1)

if the applicant establishes to her “satisfaction” that

the disability is unwarranted. 18 U.S.C. §925(c). That

purely discretionary provision is of no help to

individuals who, like Moore, have already been

convicted under §922(g)(1). After all, Moore did not

appeal to the Third Circuit to get back his Second

Amendment rights; he appealed to get back his liberty.

It is thus exceedingly cold comfort to him and the

many other similarly situated criminal defendants

that they may be able to apply for reinstatement of

their Second Amendment rights after they serve their

lengthy §922(g)(1) sentences.

As for the government’s claim that permitting

discretionary reinstatement of Second Amendment

rights is likely to stem the tide of §922(g)(1)

convictions, that claim is belied by the government’s

own arguments. After all, the government contends

that “Section 922(g)(1) is constitutional as applied to

petitioner even putting aside the fact that he was on

supervised release.”

BIO.6.

Yet the felonies

underlying Moore’s conviction—non-violent drug

offenses and an earlier §922(g)(1) conviction—are

common §922(g)(1) predicates. See, e.g., United States

3 The government’s oblique reference to the severability clause

in 18 U.S.C. §928, see BIO.6, does not help it either. That is just

a dispute about the appropriate scope of relief should a challenge

to §922(g)(1) succeed.

10

v. Peck, 131 F.4th 629, 632 (8th Cir. 2025) (“prior

conviction for marijuana possession”); United States v.

Moore, 2025 WL 711119, at *3 (5th Cir. Mar. 5, 2025)

(“possession with intent to distribute”); United States

v. Diaz, 116 F.4th 458, 467 (5th Cir. 2024) (“car theft,

evading arrest, and possessing a firearm as a felon”).

In fact, the government previously told this Court that

“non-violent drug crimes” are “one of the most common

and most important contexts in which the government

seeks to enforce Section 922(g)(1).” U.S. Supp. Br. 7,

Garland v. Range, Nos. 23-374, 23-683, 23-6170, 236602, & 23-684 (U.S. June 24, 2024). It strains

credulity to suggest that as-applied challenges to

§922(g)(1) will subside any time soon. In all events,

the notion that this Court should decline to resolve a

constitutional dispute that is having widespread realworld impact right now because of how the

government might choose to exercise its discretion in

the future violates the bedrock principle that “[r]ights

under our system of law and procedure do not rest in

the discretionary authority of any officer.” Ex parte

Parker, 131 U.S. 221, 225 (1889).

That leaves the government’s (erroneous)

argument that Moore’s as-applied challenge would fail

even under a proper analysis. BIO.6-7. But this Court

is a Court of review, not first view, and the Third

Circuit did not engage with that argument at all,

App.14-15—which is the core problem with its

decision, and the core reason why this Court should

not let it stand. Moore should not be deprived of an

appellate forum in which to have his as-applied

challenge resolved in an appropriate manner just

because the government now insists that it was right

about an issue that it persuaded the Third Circuit not

11

to address. If anything, the government’s argument

reinforces the virtue of this case as a vehicle for

resolving the methodological split: The Court can

resolve that split without wading into the ultimate

merits question. Pet.30. But in all events, if the

government is now keen to defend Moore’s conviction

under the proper as-applied framework, then at the

very least it should be compelled to do just that—on

remand.

CONCLUSION

This Court should grant the petition.

Respectfully submitted,

ERIN E. MURPHY

MATTHEW D. ROWEN

MITCHELL K. PALLAKI

CLEMENT &

MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

ELISA A. LONG

STACIE M. FAHSEL

Counsel of Record

RENEE D. PIETROPAOLO

SAMANTHA L. STERN

FEDERAL PUBLIC

DEFENDER FOR

THE WESTERN

DISTRICT OF

PENNSYLVANIA

1001 Liberty Avenue

Suite 1500

Pittsburgh, PA 15222

Stacie_Fahsel@fd.org

Counsel for Petitioner

June 10, 2025