Petition for Writ of Certiorari — United States, Petitioner v. Edward Cockerham

No. XX-XX

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

EDWARD COCKERHAM

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

D. JOHN SAUER

Solicitor General

Counsel of Record

A. TYSEN DUVA

Assistant Attorney General

SARAH M. HARRIS

Deputy Solicitor General

VIVEK SURI

Assistant to the

Solicitor General

TORY D. ROBERTS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether 18 U.S.C. 922(g)(1), the federal statute that

prohibits the possession of a firearm by a person who

has been convicted of a crime punishable by imprisonment for a term exceeding one year, violates the Second

Amendment as applied to respondent.

(I)

RELATED PROCEEDINGS

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

United States v. Cockerham, No. 21-cr-6

(Aug. 5, 2024)

United States Court of Appeals (5th Cir.):

United States v. Cockerham, No. 24-60401

(Dec. 17, 2025)

(II)

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1

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

Statement ......................................................................................... 1

Reasons for granting the petition................................................. 3

Conclusion ........................................................................................ 6

Appendix A — Court of appeals opinion (Dec. 17, 2025)....... 1a

Appendix B — District court memorandum opinion and

order (Feb. 12, 2024) ................................. 38a

Appendix C — District court order (Sept. 13, 2022) ............ 46a

(III)

In the Supreme Court of the United States

No. XX-XX

UNITED STATES OF AMERICA, PETITIONER

v.

EDWARD COCKERHAM

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a37a) is reported at 162 F.4th 500. The memorandum

opinion and order of the district court (App., infra, 38a45a) is available at 2024 WL 554149. The order of the

district court (App., infra, 46a-50a) is available at 2022

WL 4229314.

JURISDICTION

The judgment of the court of appeals was entered on

December 17, 2025. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Respondent has a previous felony conviction under Mississippi law for failure to pay child support. See

App., infra, 5a. He also has a history of aggravated as(1)

2

sault and domestic violence. See id. at 11a; id. at 35a

(Higginson, J., dissenting).

State narcotics agents stopped respondent’s car

based on the lack of a license plate. App., infra, 25a

(Higginson, J., dissenting). In response to the agents’

questions, respondent acknowledged that he had a

handgun in the car and that he was a convicted felon.

Ibid. When the agents then tried to arrest him, he

jerked away from them and fled on foot. Id. at 26a. He

later fell to the ground while running and was apprehended. Ibid.

A search of respondent’s car uncovered a loaded

handgun under the driver’s seat and another loaded

handgun in the glove compartment. App., infra, 26a

(Higginson, J., dissenting). While trying to flee from

the police, respondent dropped a bag containing 14

grams of methamphetamine, 1.5 grams of cocaine, and

12 grams of marijuana. Ibid.

2. A federal grand jury in the United States District

Court for the Southern District of Mississippi indicted

respondent for possessing a firearm as a convicted

felon, in violation of 18 U.S.C. 922(g)(1) and 924(a)(2)

(2018). App., infra, 5a. Respondent filed two motions

to dismiss the indictment, first arguing that Section

922(g)(1) violates the Second Amendment on its face

and then that it violates the Second Amendment as applied to him. Ibid. The court denied both motions. Id.

at 38a-45a, 46a-50a.

Respondent then pleaded guilty pursuant to a plea

agreement that preserved his right to appeal. App., infra, 6a. The district court sentenced respondent to 26

months of imprisonment, to be followed by three years

of supervised release. Judgment 2-3.

3

3. A divided panel of the Fifth Circuit reversed and

remanded. App., infra, 1a-37a.

The court of appeals held that Section 922(g)(1) violates the Second Amendment as applied to respondent.

App., infra, 6a-10a. The court explained that, under its

precedent, Section 922(g)(1)’s constitutionality as applied to a given predicate crime depends on how conduct

analogous to the predicate crime was punished at the

founding. Id. at 8a. The court concluded that the failure

to pay child support is analogous to failure to pay a debt.

Id. at 8a-9a. Because founding-era debtors “were released from prison once their debts were paid,” and because respondent “was no longer delinquent and had

fully paid the child support debt” by the time he was

found in possession of a firearm, the court determined

that Section 922(g)(1)’s “lifetime ban on possession of a

firearm” could not constitutionally be applied to him.

Id. at 3a, 9a-10a.

Judge Ho, the author of the majority opinion, also issued a concurrence expressing his view that this Court’s

decision in United States v. Rahimi, 602 U.S. 680

(2024), conflicted with its earlier decision in NYSRPA

v. Bruen, 597 U.S. 1 (2022). App., infra, 19a-23a. Judge

Higginson issued a dissent stating that, given “the absence of robust compilation * * * of a historical record”

and uncertainty about the “factual circumstances” of

this case, he would have remanded the case to the district court for further consideration of respondent’s

Second Amendment claim. Id. at 24a-25a & n.2.

REASONS FOR GRANTING THE PETITION

This case presents the question whether Section

922(g)(1) violates the Second Amendment as applied to

respondent. This Court should hold the petition for a

4

writ of certiorari pending the resolution of United

States v. Hemani, cert. granted, No. 24-1234 (oral argument scheduled for Mar. 2, 2026), which presents the

question whether 18 U.S.C. 922(g)(3), the federal statute prohibiting unlawful users of controlled substances

from possessing firearms, violates the Second Amendment. If appropriate, the Court should then grant certiorari in this case, vacate the court of appeals’ judgment, and remand the case for further consideration in

light of Hemani.

That course is warranted because there is a “reasonable probability” that Hemani could affect the court of

appeals’ analysis. Lawrence v. Chater, 516 U.S. 163, 167

(1996) (per curiam). Under Fifth Circuit precedent,

“ ‘dangerousness’ is not the governing test for disarmament.” United States v. Mitchell, 160 F.4th 169, 187

(2025), petition for cert. pending, No. 25-935 (filed Feb.

5, 2026). Instead, the Fifth Circuit generally asks how

conduct analogous to the predicate crime underlying

the Section 922(g)(1) charge would have been treated at

the founding. See App., infra, 8a. But the government

is arguing in Hemani that, contrary to the Fifth Circuit’s decisions, the Second Amendment allows Congress to restrict the possession of firearms by certain

categories of dangerous individuals. See Gov’t Br. at

12-16, Hemani, supra (No. 24-1234). If this Court

agrees with that argument, the Fifth Circuit would need

to revisit its analysis in this case.

In addition, the Fifth Circuit in this case stated that

Section 922(g)(1) “imposes a lifetime ban on possession

of a firearm.” App., infra, 3a; see ibid. (“disarms them

for the rest of their lives”). But disarmament under

Section 922(g)(1) is not permanent. Congress has es-

5

tablished a process through which convicted felons and

other disqualified individuals may regain their ability to

possess firearms by showing to the Attorney General

that they “will not be likely to act in a manner dangerous to public safety and that the granting of the relief

would not be contrary to the public interest.” 18 U.S.C.

925(c). Although that process was inoperative at the

time of respondent’s offense conduct, the Department

of Justice has recently revitalized it. See Br. in Opp. at

8-9, Vincent v. Bondi, No. 24-1155 (Aug. 11, 2025). The

government is arguing in Hemani that the availability

of relief under Section 925(c) supports the constitutionality of disarmament under Section 922(g)(3). See Gov’t

Br. at 40-42, Hemani, supra (No. 24-1234). That argument, too, could affect the Fifth Circuit’s analysis of

Section 922(g)(1) in this case.

6

CONCLUSION

This Court should hold the petition for a writ of certiorari pending the resolution of United States v. Hemani,

cert. granted, No. 24-1234 (oral argument scheduled for

Mar. 2, 2026). If appropriate, the Court should then

grant the petition, vacate the court of appeals’ judgment,

and remand the case for further consideration in light of

Hemani.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

A. TYSEN DUVA

Assistant Attorney General

SARAH M. HARRIS

Deputy Solicitor General

VIVEK SURI

Assistant to the

Solicitor General

TORY D. ROBERTS

Attorney

FEBRUARY 2026

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion (Dec. 17, 2025) ... 1a

Appendix B — District court memorandum opinion and

order (Feb. 12, 2024) ................................ 38a

Appendix C — District court order (Sept. 13, 2022) ........ 46a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-60401

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

EDWARD COCKERHAM, DEFENDANT-APPELLANT

Filed:

Dec. 17, 2025

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 5:21-CR-6-1

Before HIGGINSON, HO and WILSON, Circuit Judges.

JAMES C. HO, Circuit Judge:

The right to keep and bear arms under the Second

Amendment is a fundamental civil right, comparable to

other provisions of the Bill of Rights. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (describing

the First, Second, Fourth, Fifth, and Sixth Amendments

as the “civil-rights Amendments”); Konigsberg v. State

Bar of Cal., 366 U.S. 36, 49-50 n.10 (1961) (comparing

“the commands of the First Amendment” to “the equally

unqualified command of the Second Amendment”). Of

course, “[l]ike most rights, . . .

the Second Amendment is not unlimited.” District of Columbia v. Heller,

554 U.S. 570, 626 (2008). But courts may not treat the

(1a)

2a

Second Amendment as “a second-class right.” N.Y.

State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 70 (2022)

(quotations omitted).

Our analysis of the Second Amendment must be

guided by history—not hoplophobia. “[W]hen a firearm regulation is challenged under the Second Amendment, the Government must show that the restriction is

consistent with the Nation’s historical tradition of firearm regulation.” United States v. Rahimi, 602 U.S.

680, 689 (2024) (quotations omitted).

Historical tradition unquestionably permits the Government to disarm violent criminals. See, e.g., United

States v. Bollock, 123 F.4th 183, 185 (5th Cir. 2024) (“The

historical record demonstrates ‘that legislatures have

the power to prohibit dangerous people from possessing

guns.’ . . . [F]ounding era law . . . supports a

tradition of disarming individuals . . . whose underlying convictions stemmed from the threat and commission of violence.”) (quoting Kanter v. Barr, 919 F.3d 437,

451 (7th Cir. 2019) (Barrett, J., dissenting)).

But our history is very different when it comes to

non-violent crimes. “History does not support the

proposition that felons lose their Second Amendment

rights solely because of their status as felons.” Kanter,

919 F.3d at 464 (Barrett, J., dissenting). See, e.g.,

United States v. Mitchell, _ F.4th _,_ (5th Cir. 2025)

(holding that “this Nation’s historical tradition” does not

empower the Government to categorically disarm all individuals convicted of “a non-violent offense”); United

States v. Doucet, 2025 WL 3515404, *4 (5th Cir.) (same).

And that’s the issue with the law we examine today.

Under 18 U.S.C. § 922(g)(1), it’s unlawful for any person

to possess a firearm who has been convicted in any court

3a

of any crime, so long as the crime is “punishable by imprisonment for a term exceeding one year.” 18 U.S.C.

§ 922(g)(1).

So § 922(g)(1) is not limited to violent felonies. It’s

not even limited to felonies. See 18 U.S.C. § 921(a)(20).

Moreover, it disarms individuals who have never been

incarcerated. What’s more, it disarms them for the

rest of their lives. So it imposes a lifetime ban on possession of a firearm—and it does so even if the person has

never spent a single day in prison.

This overreach is compounded by overcriminalization. “[C]riminal laws have grown so exuberantly and

come to cover so much previously innocent conduct that

almost anyone can be arrested for something.” Nieves

v. Bartlett, 587 U.S. 391, 412 (2019) (Gorsuch, J., concurring in part and dissenting in part). See also Brief for

American Civil Liberties Union, et al. as Amici Curiae

Supporting Defendant-Appellant, United States v. Duarte, 137 F.4th 743 (9th Cir. 2025), 2024 WL 6465955, *9.

Section 922(g)(1) “would even apply to someone who

possessed a firearm solely to prevent danger or violence.” Id. at *12. Imagine, for example, “a schoolboy came home with a loaded gun and his ex-felon father

took it from him, put it in drawer, and called the police.”

Id. (quoting United States v. Teemer, 394 F.3d 59, 64

(1st Cir. 2005)).

So it’s not surprising that judges, scholars, and civil

rights experts have condemned § 922(g)(1) as “wildly

overinclusive.” Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683, 721 (2007).

See also, e.g., United States v. Yancey, 621 F.3d 681, 685

(7th Cir. 2010) (per curiam) (same); Kanter, 919 F.3d at

4a

466 (Barrett, J., dissenting) (same); ACLU Amici Br.,

2024 WL 6465955, at *7.

The Supreme Court has indicated that laws like

§ 922(g)(1) are only “presumptively lawful.” Rahimi,

602 U.S. at 699 (quoting Heller, 554 U.S. at 626-27 &

n.26). It could have adopted a “categorical rule” of

validity—the preceding sentence in Rahimi certainly

suggests that it’s well familiar with the concept. But it

didn’t. As Justice O’Connor and others have noted,

“Heller referred to felon disarmament bans only as ‘presumptively lawful. ’ ” United States v. Williams, 616

F.3d 685, 692 (7th Cir. 2010). And that, “by implication, means that there must exist the possibility that the

ban could be unconstitutional in the face of an as-applied

challenge.” Id.

We agree with Justice O’Connor’s reading of Heller.

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

we said that “[s]imply classifying a crime as a felony

does not meet the level of historical rigor required by

Bruen and its progeny.” Id. at 469. Instead, we must

determine whether disarming a particular defendant for

life is “consistent with the Nation’s historical tradition

of firearm regulation.” Id. at 467 (quotations omitted).

Applying the historical analysis required by governing precedent, we cannot affirm the lifetime disarmament of Edward Cockerham. His sole predicate offense

under § 922(g)(1) is his failure to pay child support—an

offense for which he was not sentenced to a single day in

prison.

The Government attempts to justify Cockerham’s

§ 922(g)(1) conviction by analogizing failure to pay child

support to theft, and comparing the incarceration of

thieves with the Founding era practice of debtors’ pris-

5a

ons. But during the Founding era, debtors were released from debtors’ prison upon payment of their

debts.

Thieves, by contrast, remained incarcerated

even if the stolen property had been returned or recovered.

So at the Founding, debtors were treated differently

from thieves. Thieves could be permanently disarmed

—but debtors, only temporarily, until discharge of their

debt. The Government itself admitted as much during

oral argument. And its admission dooms its analogy.

Because at the time that Cockerham was found in possession of a firearm, he was no longer delinquent of any

failure to pay child support. So there was no historical

justification to disarm him at that moment—never mind

for the rest of his life.

Cockerham’s § 922(g)(1) conviction therefore violates

the Second Amendment. We accordingly reverse and

remand for further proceedings consistent with this

opinion.

I.

Cockerham pled guilty for failing to pay child support, in violation of Mississippi law. See MISS. CODE

§ 97-5-3. He was sentenced to five years of probation.

But Mississippi law makes clear that he could have been

imprisoned for up to five years. Id. He eventually repaid his child support and was released from probation.

Cockerham was subsequently indicted for possessing

a firearm, in violation of § 922(g)(1), based solely on his

prior conviction for failing to pay child support. He

twice moved to dismiss the indictment, arguing that

§ 922(g)(1) violates the Second Amendment as applied

to him, as well as on its face. The district court denied

6a

both motions. Cockerham then pled guilty pursuant to

a plea agreement that preserved his right to appeal his

Second Amendment claims.

This timely appeal followed. Cockerham argues that

his conviction under § 922(g)(1) violates the Second

Amendment as applied to him, as well as on its face.

He also argues that § 922(g)(1) violates the Commerce

Clause and the Equal Protection Clause, and that it is

void for vagueness.

Except for the as-applied Second Amendment challenge, all of his arguments are foreclosed by precedent.

See, e.g., Diaz, 116 F.4th at 471 (holding that § 922(g)(1)

does not facially violate the Second Amendment);

United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir.

2013) (holding that § 922(g)(1) does not violate the Commerce Clause); United States v. Branson, 139 F.4th 475,

477-79 (5th Cir. 2025) (holding that § 922(g)(1) does not

violate the Equal Protection Clause and is not void for

vagueness).

II.

In Bruen, the Supreme Court set forth a two-step

framework for analyzing challenges under the Second

Amendment. First, we determine whether “the Second Amendment’s plain text covers an individual’s conduct.” 597 U.S. at 17. If so, “the Constitution presumptively protects that conduct.” Id. “At the first step,

the government may justify its regulation by establishing that the challenged law regulates activity falling outside the scope of the right as originally understood.”

Id. at 18 (cleaned up).

But if the challenged regulation implicates a right

protected under the Second Amendment—as § 922(g)(1)

7a

plainly does—then “the government must demonstrate

that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 17.

“[T]his historical inquiry that courts must conduct

will often involve reasoning by analogy.” Id. at 28. And

“[l]ike all analogical reasoning, determining whether a

historical regulation is a proper analogue for a distinctly

modern firearm regulation requires a determination of

whether the two regulations are ‘relevantly similar.’ ”

Id. at 28-29.

To determine whether or not a particular regulation

is indeed “relevantly similar” under the Second Amendment, we look to “at least two metrics: how and why the

regulations burden a law-abiding citizen’s right to

armed self-defense.”

Id. at 29. “[W]hether modern

and historical regulations impose a comparable burden

on the right of armed self-defense and whether that burden is comparably justified are central considerations

when engaging in an analogical inquiry.” Id. (quotations omitted).

“[A]nalogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” Id. at 30. “[C]ourts should not

uphold every modern law that remotely resembles a historical analogue, because doing so risks endorsing outliers that our ancestors would never have accepted.” Id.

(cleaned up). “On the other hand, analogical reasoning

requires only that the government identify a well-established and representative historical analogue, not a historical twin.” Id. “So even if a modern-day regulation is not a dead ringer for historical precursors, it still

may be analogous enough to pass constitutional muster.” Id.

8a

In Diaz, we applied Bruen to an as-applied challenge

to § 922(g)(1). We began by rejecting the Government’s threshold argument that felons are “not among

‘the people’ protected by the Second Amendment.”

116 F.4th at 466. We then applied the first step of the

Bruen framework and held that “[t]he plain text of the

Second Amendment covers the conduct prohibited by

§ 922(g)(1).” Id. at 467. So we turned to the second

step of Bruen and determined whether there is a “relevantly similar” “historical analogue” sufficient to justify

applying § 922(g)(1) to the defendant there. Id.

We observed that “the crime of theft . . . was

considered a felony at the time of the Founding and was

punished accordingly.” Id. at 468. We surveyed various colonial era laws and concluded that “our country

has a historical tradition of severely punishing people

. . . convicted of theft.” Id. at 468-69.

What’s more, we specifically pointed out that “[t]hese

laws achieved their goals by permanently punishing offenders.” Id. at 469 (emphasis added). “Capital punishment is obviously permanent, and the majority of the

estate forfeiture laws that the government cites did not

provide an opportunity for offenders to regain their possessions.” Id.

We concluded that “[p]ermanent disarmament under

§ 922(g)(1) does not punish such crimes to an extent beyond what was done at the founding, given the government’s evidence that crimes such as theft were punished

so severely and permanently.” Id. (cleaned up).

The Government attempts to justify the use of

§ 922(g)(1) here by invoking Diaz and analogizing Cockerham’s failure to pay child support to the crime of theft.

The Government also points out that, during the Found-

9a

ing era, people who failed to pay their debts could be

subject to debtors’ prison.

But the Government’s invocation of debtors’ prison

only serves to demonstrate that the crime of theft is not

analogous to failure to pay one’s debts. As the Government admitted during oral argument, debtors were released from prison once their debts were paid. See

Oral Arg. at 18:20-18:45. See also, e.g., Nino C. Monea,

A Constitutional History of Debtors’ Prisons, 14

DREXEL L. REV. 1, 7 (2022) (“These incarcerated debtors could be held until they repaid or the creditor decided to let them go.”); Body Attachment and Body Execution: Forgotten But Not Gone, 17 WM. & MARY L.

REV. 543, 547 (1976) (“[T]he debtor was held in close imprisonment until he paid the debt or until the creditor

permitted release.”); Olivia C. Jerjian, The Debtors’

Prison Scheme: Yet Another Bar in the Birdcage of

Mass Incarceration of Communities of Color, 41 N.Y.U.

REV. L. & SOC. Change 235, 242-43 (2017) (noting Massachusetts and Pennsylvania laws that kept a debtor imprisoned until the debt was repaid or the creditor permitted release); Marcus Cole, A Modest Proposal for

Bankruptcy Reform, 5 GREEN BAG 2D 269, 271-72 (2002)

(explaining early debtors’ prison statutes that required

imprisonment until the debtor “made agreement (to satisfy the debt) or his friends for him,” which remained

“unchanged until its abolition in the nineteenth century”).

By contrast, the Government does not dispute that

thieves were not released even if stolen goods were voluntarily returned. See also, e.g., Wayne R. LaFave, 3

Subst. Crim. L. § 19.5(b) (3rd ed.) (2025) (“[O]ne who

takes another’s property intending at the time of taking

10a

to deprive the owner permanently is nevertheless guilty

of larceny, though he later (becoming frightened, or his

better nature prevailing) decides to return it and does

so.”).1

These admissions are fatal to Cockerham’s § 922(g)(1)

conviction. As the record demonstrates, and as the

Government conceded during oral argument, Cockerham was no longer delinquent and had fully paid the

child support debt for which he was convicted at the time

he was found in possession of a firearm. See Oral Arg.

at 32:55-33:10. So there’s no historical justification to

disarm him at that moment—never mind for the rest of

his life. The Government counters by suggesting that

Cockerham may have incurred new child support debt

by the time he was found in possession of a firearm.

But as the Government acknowledged, § 922(g)(1) turns

on convictions, not allegations. See Oral Arg. at 33:1034:35. See also, e.g., United States v. Kimble, 142 F.4th

308, 318 (5th Cir. 2025) (rejecting reliance on “unproven

conduct”).2

The Government attempts to bolster its theft analogy by invoking the United States Sentencing Guidelines, which treats theft as

the “most analogous guideline” to failure to pay child support. But

as explained above, Bruen requires us to consider historical practice,

not modern views on disarmament. So the Government’s argument

proves too much: If modern views are sufficient to survive Second

Amendment scrutiny, then every conviction under § 922(g)(1) would

be automatically valid—after all, surely the enactment of § 922(g)(1)

by our elected representatives in Congress reflects modern views on

disarmament even better than the members of the United States

Sentencing Commission.

2

In its briefing on appeal, the Government argued that “Cockerham’s status [as] a defendant under probationary supervision provides an additional reason why he could be barred from possessing

1

11a

III.

Although the Government understandably does not

contend that failure to pay child support is a violent

crime, we note that other aspects of Cockerham’s background suggest that he may indeed be violent. Cockerham has been arrested for aggravated assault and domestic violence, for example.

He has also been

charged with trafficking in controlled substances and

stalking.

But the Government does not rely on any of this

background to affirm Cockerham’s § 922(g)(1) conviction. To the contrary, the Government conceded during oral argument that those are unproven allegations,

and that it does not ask us to affirm Cockerham’s

§ 922(g)(1) conviction based on unproven allegations.

See Oral Arg. 27:10-29:15.

And for good reason. In other circuits, it’s been

suggested that courts might not limit themselves to the

predicate offense when determining the validity of a §

922(g)(1) conviction. See, e.g., United States v. Williams, 113 F.4th 637, 659-60 (6th Cir. 2024) (“When evaluating a defendant’s dangerousness, a court may consider a defendant’s entire criminal record—not just the

specific felony underlying his § 922(g)(1) conviction.”).

But our circuit has not taken that approach. “[O]ur

circuit’s binding precedent espouses evaluating as-apa gun.” See, e.g., United States v. Giglio, 126 F.4th 1039, 1043-44

(5th Cir. 2025) (upholding use of § 922(g)(1) because “the historical

practice of disarming a convict during his sentence justified the modern practice of disarming individuals serving their sentences on supervised release”) (cleaned up). But the record proves otherwise—

as the Government later conceded during oral argument. See Oral

Arg. at 32:35-32:55.

12a

plied challenges to § 922(g)(1) by focusing on the nature

of the predicate offense rather than on the defendant’s

broader criminal history or individual characteristics.”

United States v. Hernandez, 159 F.4th 425, 428 (5th Cir.

2025). “[W]e sift the elements of a defendant’s prior

convictions through Bruen’s analogical framework, and

not the defendant himself.” Id. “We . . . do not embrace the view that courts should look beyond a defendant’s predicate conviction and assess whether the felon’s

history or characteristics make him likely to misuse firearms.” Kimble, 142 F.4th at 318 (quotations omitted).

“The relevant consideration is a defendant’s prior convictions that are punishable by imprisonment for a term

exceeding one year, not unproven conduct.” Id. (quotations omitted).

IV.

Some thoughts about the dissent before we close.

A.

We begin with a few areas of consensus.

First, our distinguished dissenting colleague concedes

that it is “defensible” and “plausible” to treat Cockerham as a “colonial-era debtor,” rather than a “colonialera thief.” Post, at 26 (Higginson, J., dissenting).

And for good reason:

thief.

Cockerham is a debtor, not a

Second, our colleague says that he would do “no more

than remand” to give the Government a second chance

to compile “some fractional amount of history” before

we hold § 922(g)(1) unconstitutional as applied to Cockerham. Post, at 21, 27.

13a

So at a minimum, our decision today is unanimous

against affirmance.

But our agreement may be even more robust than

that. Our colleague may say that he would do “no more

than remand.” Id. at 1. But his opinion seems to

acknowledge that, even under his approach, we should

be ordering vacatur—if not reversal.

In support of his plea for remand only, our colleague

cites his previous opinion for the court in United States

v. Smith, 2025 WL 2938691 (5th Cir.). See post, at 21,

24, 28 (citing Smith).

Smith did exactly what he urges here—it lets the district court “resolve the history and tradition related to

[the defendant’s] predicate felonies in the first instance.” 2025 WL 2938691, at *1.

But as our colleague explained in Smith, that requires vacatur. In Smith, the court ordered “vacat[ur]”

of “the district court’s order denying [the defendant’s]

motion to dismiss his indictment.” Id. at *1. It then

remanded “for the district court to reconsider [the defendant’s] as-applied Second Amendment challenge.”

Id.

Moreover, our dissenting colleague bolsters his reliance on Smith by additionally citing our precedential

decision in United States v. Daniels, 124 F.4th 967 (5th

Cir. 2025), which he joined. See post, at 24 n.3.

In Daniels, the court reversed the conviction altogether. See 124 F.4th at 979; id. at 980 (Higginson, J.,

concurring) (“I concur that Daniels’s judgment of conviction must be reversed.”); post, at 24 n.3 (noting that

he concurred in the reversal).

14a

Daniels also remanded and explicitly left open the

possibility that the Government might someday resuscitate the reversed conviction by presenting stronger historical evidence in a future proceeding. See 124 F.4th

at 977 (“The government has not pointed to sufficiently

analogous historical laws. . . . The government remains free to reprosecute . . . under a theory consistent with a proper understanding of the Second

Amendment.”); post, at 24 n.3 (Higginson, J., dissenting)

(noting that he concurred in Daniels because the court

reversed the conviction and remanded “to ensure the []

conviction meets the requirement under intervening

caselaw that it be ‘historically rooted’ ”).

Our decision today is of course bound by our precedent in Daniels. Accordingly, if the Government can

compile stronger historical evidence to support this conviction than it has done so far, it may do so in a future

proceeding, just as in Daniels.

So our colleague’s decision may be formally labeled a

dissent. But because the dissent invokes Daniels, we

might be inclined to characterize his views as a concurrence (or concurrence in the judgment) instead—as he

did in Daniels.

We understand that the dissent would

rather give the Government a second bite at the apple

before reversing this conviction as unconstitutional.

But in Daniels, he was willing to give the Government

that second bite only after reversing the conviction as

unconstitutional.

B.

All that being said, our dissenting colleague is unwilling to follow either the course he set in Daniels (reverse

the conviction but let the Government try again on remand), or the one he set in Smith (vacate the denial of

15a

the motion to dismiss and remand to give the district

court first crack at the historical analysis). Instead, he

would do “no more than remand.” Post, at 21.

We can and do respect our difference of opinion,

while observing that our colleague’s approach conflicts

with precedent and party presentation.

As already noted, it conflicts with Daniels. It also

conflicts with our other decisions that likewise decline to

give the Government another chance on remand before

holding § 922(g)(1) unconstitutional as applied. See,

e.g., Mitchell, _ F.4th _; see also Doucet, 2025 WL

3515404.

What’s more, during oral argument, our colleague offered the Government a second bite at the apple on remand.

The Government emphatically declined. See

Oral Arg. at 29:50-30:05 (Q: “[A]t worst, should we

send it back down . . . is that the Government’s position?” A: “No, no, no, Your Honor.” Q: “You want

us to decide on the history now.” A: “That’s right.” Q:

“Here at the appellate level.” A: “That’s right.”).

Our colleague has eloquently observed that “our adversarial system of adjudication is designed around the

premise that parties represented by competent counsel

know what is best for them.” United Natural Foods,

Inc. v. NLRB, 66 F.4th 536 (5th Cir. 2023) (cleaned up),

vacated on other grounds, 144 S. Ct. 2708 (2024). So “it

would be improper for us to cross the bench to counsel’s

table and litigate the case for it.” Id.

Nor is “remand only” the dissent’s only party presentation problem. The dissent also invites us to ignore—

and instead relitigate—the Government’s concessions

16a

concerning Cockerham’s repayment of child support

and release from probation. See post, at 21 n.2.

In addition, our colleague spills considerable ink going beyond the elements of the predicate offense, and

examining the defendant himself. But that too contradicts party presentation as well as precedent. As for

party presentation, see Oral Arg. 27:10-29:15, as noted

above. As for precedent, our colleague has repeatedly

acknowledged that circuit precedent compels us to “sift

the elements of a defendant’s prior convictions through

Bruen’s analogical framework, and not the defendant

himself.” Hernandez, 159 F.4th at 428 (emphasis

added). See also, e.g., Smith, 2025 WL 2938691, at *2

n.3 (“[L]ooking beyond predicate felony convictions is

not appropriate in a § 922(g)(1) constitutional analysis.”) (emphasis added); United States v. Locket, 2025

WL 2945534, *1 (5th Cir.) (“[C]ourts should not ‘look beyond’ a defendant’s predicate conviction and assess

whether the felon’s history or characteristics make him

likely to misuse firearms.”) (cleaned up).

Finally, the dissent discusses colonial America and

its abhorrent treatment of women and children as chattel property, rather than as human beings entitled to legal protection against crime—and warns us that “the

Supreme Court corrected us” on this point in Rahimi.

Post, at 29-30. But it should be obvious that our analysis today applies to the failure to pay any debt, regardless of whether the victim is an adult or child—just as

our analysis in Rahimi applied to any suspicion of violence, regardless of whether the stated victim is a man

or a woman. Certainly the Supreme Court did not share

the dissent’s historical concerns. Nothing in its decision in Rahimi turned on (or even mentioned) women

17a

being treated as chattel (and the dissent does not claim

otherwise). To the contrary, Rahimi affirmatively notes

that the history and common law of surety protected

both husbands and wives, dating back to the days of

Blackstone. See 602 U.S. at 695-96.

***

We recognize that a number of our sister circuits

have affirmed § 922(g)(1) as a categorical matter. See,

e.g., Zherka v. Bondi, 140 F.4th 68, 93 (2nd Cir. 2025);

United States v. Hunt, 123 F.4th 697, 702-04 (4th Cir.

2024); United States v. Jackson, 110 F.4th 1120, 1125

(8th Cir. 2024); United States v. Duarte, 137 F.4th 743,

750-52, 761-62 (9th Cir. 2025) (en banc); Vincent v.

Bondi, 127 F.4th 1263, 1265-66 (10th Cir. 2025); United

States v. Dubois, 94 F.4th 1284, 1292 (11th Cir. 2023).

But that is not how Justice O’Connor and others have

construed governing Supreme Court precedent. See,

e.g., Williams, 616 F.3d at 692; Range v. Attorney Gen.

United States, 124 F.4th 218, 230-32 (3rd Cir. 2024) (en

banc); Williams, 113 F.4th at 657-60. Nor is it how we

have read Supreme Court precedent.

Historical analysis determines whether a particular

individual can be disarmed for life under § 922(g)(1).

And we are unable to find a historical basis for disarming Cockerham for the rest of his life, just because he

was once convicted of failure to pay child support.

The Government analogizes failure to pay child support to theft. But during the Founding era, thieves

were treated differently from debtors. Thieves were

subject to permanent disarmament. Debtors were not.

Debtors could be imprisoned, and thus temporarily disarmed. But they were released from debtors’ prison

18a

upon payment of their debt. And the Government

acknowledges that Cockerham was no longer delinquent

of any failure to pay child support when he was found in

possession of a firearm.

Cockerham’s conviction under § 922(g)(1) violates the

Second Amendment. We accordingly reverse and remand for further proceedings consistent with this opinion.

19a

JAMES C. HO, Circuit Judge, concurring:

The dissent contends that “the Supreme Court corrected us” in United States v. Rahimi, 602 U.S. 680

(2024), rev’g 61 F.4th 443 (5th Cir. 2023). Post, at 29.

I write in response to defend our court’s earlier decision

in Rahimi as a faithful application of N.Y. State Rifle &

Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

I.

Only the Supreme Court can adjust or amend its own

precedents. Inferior courts have no such luxury.

Indeed, the Supreme Court has explicitly instructed

us to follow its precedents even when we don’t expect

the Court itself to do so. See, e.g., Rodriguez de Quijas

v. Shearson/Am. Exp., 490 U.S. 477, 484 (1989) (“If a

precedent of this Court has direct application in a case,

yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the

case which directly controls, leaving to this Court the

prerogative of overruling its own decisions.”); Agostini

v. Felton, 521 U.S. 203, 237 (1997) (same); State Oil Co.

v. Khan, 522 U.S. 3, 20 (1997) (“The Court of Appeals

was correct in applying that principle despite disagreement . . . , for it is this Court’s prerogative alone to

overrule one of its precedents.”); United States v. Hatter, 532 U.S. 557, 567 (2001) (same).

So only the Supreme Court can modify or overrule its

own precedents—and then reverse us when it does so.

See, e.g., Jackson Women’s Health Org. v. Dobbs, 597

U.S. 215 (2022), rev’g 945 F.3d 265 (5th Cir. 2019).

20a

II.

Accordingly, it would have been insubordinate of

us—and defiant of the Court’s express instructions in

Rodriguez de Quijas, Agostini, State Oil, and Hatter—

had we decided Rahimi based on anticipated changes to

Bruen, rather than on Bruen itself.

So we didn’t. We faithfully applied Bruen in Rahimi.

And not a single member of our court disagreed with our

interpretation or application of Bruen at the time. As

one of our distinguished colleagues put it then, our job

is not to relitigate or reconsider Bruen, but to “operat[e]

in good faith” and “faithfully implement Bruen.”

United States v. Daniels, 77 F.4th 337, 357-58 (5th Cir.

2023) (Higginson, J., concurring).

Notably, a respected former federal judge on another

circuit made an unusual public statement that our decision in Rahimi “took Bruen seriously and applied it to a

logical end.” Rachel Weiner, The Supreme Court upended gun laws nationwide. Mass confusion has followed., WASH. POST, July 7, 2024 (quoting Judge Paul

Watford).

Similar comments can be found throughout the academy and legal commentariat as well. For just a few examples, see Mary Anne Franks, US v. Rahimi, Originalism’s Loaded Weapon, and the Lost Boys of the Supreme Court, 22 OHIO ST. J. OF CRIM. L. 187, 192 (2025)

(“the Fifth Circuit’s opinion . . . faithfully followed

Bruen”) (quotations omitted); Nelson Lund, The Fidelity of ‘Originalist’ Justices Is About to Be Tested, N.Y.

TIMES, Apr. 9, 2024 (“Under Bruen’s originalist test,

Rahimi should be an easy case.”); Noah Feldman, Gun

Case Forces Supreme Court to Confront Its Own Illogic,

BLOOMBERG LAW, Nov. 8, 2023 (“The Rahimi case shows

21a

what happens when the justices” adopt the “historical

tradition test . . . in Bruen.”); Daniel S. Harawa, Between a Rock and a Gun, 134 YALE L. J. FORUM 100, 103

(2024) (“If the Court had been intellectually honest and

had faithfully followed Bruen, Mr. Rahimi’s position as

a criminal defendant would have carried the day.”); Jeff

Welty, Backing Away from Bruen? Supreme Court Upholds Law Barring Restraining Order Subjects from

Possessing Guns, N.C. CRIM. LAW BLOG, July 1, 2024

(“Although the majority opinion in Rahimi is couched as

a faithful application of Bruen, it is not hard to argue

that Rahimi backs away from the bold strokes of

Bruen.”); Marcia Coyle, Analysis: How a Supreme

Court ruling led to the overturning of a guns and domestic violence law, PBS NEWS, Feb. 8, 2023 (“[T]he

Bruen test is the law of the land, and the Fifth Circuit

panel in Rahimi was bound to follow it.”); Conner

Greene, The Second Amendment’s Domestic Violence

Problem: How Rahimi Exposes the Flaws of Bruen’s

Problematic Historical Analogue Test, 72 CLEV. ST. L.

REV. 937, 941 (2024) (“Because the Supreme Court

backed itself into such a difficult corner with the Bruen

test, it is likely going to need to use a selective cherrypicking of history to uphold gun regulations protecting

domestic violence victims in Rahimi, backtrack on the

test it created just two years ago, or hold 18 U.S.C.

§ 922(g)(8) unconstitutional.”); Sabrina Talukder, The

Supreme Court Case United States v. Rahimi Underscores the Ugly Truth About Originalism and Women,

CENTER FOR AM. PROGRESS, Oct. 17, 2023 (“Rahimi underscores the direct and confusing impact of [Bruen]”);

Ian Millhiser, The Supreme Court refuses to accept

blame for its worst guns decision, VOX, June 21, 2024

22a

(“[The Fifth Circuit’s] decision in the Rahimi case was

correctly decided under Bruen.”).

III.

The Supreme Court reversed our court in Rahimi.

In order to do so, it had to reverse what it said in Bruen.

Bruen held that surety laws do not provide historical

support for banning gun possession. After all, surety

laws merely require individuals to “post bond before carrying weapons in public.” 597 U.S. at 55. So they’re

merely “financial incentives.” Id. at 59. They’re “not

bans on public carry.” Id. at 55. See also id. at 59

(same). So any “reliance on them is misplaced.” Id. at

55.

In sum, surety laws are irrelevant to gun bans, under

Bruen.

The Court reversed those views in Rahimi. Far

from being irrelevant, surety laws now “confirm” that

covered individuals “may be disarmed.” Rahimi, 602

U.S. at 698. See id. at 698-70 (relying on surety laws as

historical support for 18 U.S.C. § 922(g)(8)); see also id.

at 751, 752-53, 762-64, 766-68 (Thomas, J., dissenting)

(noting the Court’s reversal of position on surety laws);

United States v. Rahimi, 117 F.4th 331, 333 n.1 (5th Cir.

2024) (same); id. at 334-36 (Ho, J., concurring) (noting

other modifications made by the Supreme Court in

Rahimi).

***

So the Court didn’t “correct” us in Rahimi, any more

than it “corrected” us in Dobbs. In both Dobbs and

Rahimi, the Court reversed us—but it “corrected” itself.

23a

That’s how vertical stare decisis works. I accordingly concur in our court’s faithful application of governing precedent in this case, just as I did in Rahimi.

24a

STEPHEN A. HIGGINSON , Circuit Judge, dissenting:

In recognizing that “the law regarding the interplay

between the Second Amendment and § 922(g)(1) is rapidly evolving,” I respectfully dissent from the majority’s

decision to resolve this case in the present underdeveloped posture. See United States v. Smith, No. 2460600, 2025 WL 2938691, at *2 (5th Cir. Oct. 16, 2025)

(unpublished). Given our court’s binding precedent in

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

which conflicts with every other court of appeals 1; given

the absence of robust compilation, much less resolution,

of a historical record for us to apply our Diaz test; and

given factual inconsistencies between our court’s decision and the record on appeal 2—given all three, I would

do no more than remand to permit the parties, and the

1

More exactly, the majority acknowledges that its invalidation of

Cockerham’s § 922(g)(1) conviction conflicts with six circuits, which

defer to the constitutionality of the statute as applied to all felons;

the majority also notes that it conflicts separately with two other circuits that assess as-applied challenges with reference to individual

defendant dangerousness. See United States v. Mancilla, 155

F.4th 449, 454 n.5 (5th Cir. 2025) (Elrod, C.J., concurring); cf. United

States v. Orozco, No. 24-50104, 2025 WL 2623429, at *2 (5th Cir.

Sept. 11, 2025) (Higginson, J., concurring) (discussing recent Fifth

Circuit efforts to apply Second Amendment precedent to § 922(g)(1)

cases).

2

The majority resolves this case factually with repeated reference

to government concessions and, in particular, that Cockerham “repaid his child support and [also] was released from probation.” Op.

at 5, 9-10. At minimum, the district court should resolve determinative factual circumstances in the first instance, above all when fact

conclusions we rely on are contradicted by Cockerham’s sworn factual basis and his Presentence Report accepted by the district court

whose judgment of conviction we are reviewing.

25a

district court, to address these points in the first instance.

It is the responsibility and prerogative of the parties

to present, and the district court to make the necessary

historical and evidentiary findings, as to whether there

is Founding-era practice analogous to support felony

prosecution of individuals like Cockerham, who has a

prior felony conviction for failure to pay child support.

This predicate felony presents a matter of first impression and is therefore deserving of more considerate explication in the district court.

I.

Factually, Cockerham’s offense conduct was as follows:

12. Approximately four minutes after arriving at the

motel, Cockerham’s vehicle left the parking lot. MBN

agents followed and conducted a traffic stop, based

on the lack of license plate, near Edgar Street at the

intersection of 22nd Street in McComb. Agents

made contact with Cockerham and inquired as to the

lack of license plate and if there was anything illegal

in the vehicle. Cockerham denied there was anything

illegal in the car, but stated there was a gun under

the driver’s seat. Agents asked if Cockerham was

on probation, and he indicated he was on probation

for child support. Due to Cockerham’s admission to

being on felony probation, agents knew he was a convicted felon, and he was removed from the vehicle.

Cockerham was taken to the rear of the car and asked

to empty his pockets. Cockerham pulled $2,016 in

U.S. currency from his pockets.

26a

13. Agents located a Kel-Tec, Model PMR-30, .22 caliber, semi-automatic handgun bearing serial number

WWZZ37, under the driver’s seat of Cockerham’s vehicle.

The firearm was loaded with almost 30

rounds of ammunition and a round in the chamber.

In addition, a Polymer 80, Model PF940V2, 9mm

semi-automatic handgun, bearing no manufactured

serial number, was found in the glove compartment

of the vehicle. It was noted the firearm was loaded

with 15 rounds of ammunition and one round in the

chamber.

14. Agents advised Cockerham of his rights and had

him sign a waiver of the rights. Cockerham was asked

if he was employed, and he indicated he was not.

While placing Cockerham in custody, he jerked away

from agents and fled on foot. While in pursuit,

agents observed Cockerham reach into his pants

while fleeing. Cockerham ran in a straight path until

he ran between two cars to the left. After the detour, Cockerham fell to the ground and complied

while being taken into custody. He was transported

to the McComb City Jail.

15. Agents walked to the place where Cockerham ran

between the two vehicles and located a plastic bag on

the ground. The bag contained approximately 14

grams of methamphetamine, approximately 1.5 grams

of cocaine, and approximately 12 grams of marijuana.

The substances were later submitted to the Mississippi Forensic Laboratory for testing, and the firearms were turned over to the ATF. The defendant

was charged with possession with intent to deliver

methamphetamine, marijuana, and cocaine (crack) as

well as possession of a firearm by a convicted felon.

27a

16. On September 28, 2020, ATF agents examined the

Kel-Tec, Model PMR-30, seized from Cockerham and

determined it was manufactured in Florida, outside

the state of Mississippi. The firearm was re-examined on April 5, 2024, and further determined the

handgun to meet the definition of “firearm.”

The present appeal comes to us from Cockerham’s

motion to dismiss, which was predicated solely on the

Supreme Court’s ruling in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). The district court

denied Cockerham’s motion and, in doing so, cited to our

pre-Diaz, then-binding, Fifth Circuit law in United

States v. Jones, where our court held: “Given the absence of binding precedent holding that § 922(g)(1) is unconstitutional, and that it is unclear that Bruen dictates

such a result, we have rejected plain-error challenges to

§ 922(g)(1) under Bruen. . . . ” 88 F.4th 571, 573

(5th Cir. 2023). The district court held that, “[a]bsent

a Supreme Court or Fifth Circuit decision ruling otherwise, the Court is persuaded that it remains bound by

Fifth Circuit precedent under § 922(g)(1).” While relying on then-binding caselaw, much has changed in the

§ 922(g)(1) landscape since the district court’s ruling

nearly two years ago.

II.

As the Supreme Court observed in Bruen, “analogical reasoning” is a “commonplace task for any lawyer or

judge.” 597 U.S. at 28-29. That encouragement, however, rests alongside the Court’s confidence that such

reasoned decision-making will be “based on the historical record compiled by the parties.” Id. at 25 n.6.

No historical record as to Cockerham’s predicate felony conviction was tested and resolved by first-instance

28a

district-court adjudication and then submitted to us for

careful appellate review. See Smith, 2025 WL 2938691,

at *2 (remanding to the district court to consider intervening

§ 922(g)(1) precedents and to require the government to

meet its Bruen burden).3

This occurred because neither party, nor the district

court, could have anticipated that our court would break

with or go farther than precedent—of our own,4 other

circuits 5 and the Supreme Court 6 —and announce in

Diaz that a new, second level of history now must be

compiled, this time an inquiry into whether felons’ predicate convictions themselves fall into buckets of crimes

that our court continues to expand upon in identifying

and delineating persons subject to § 922(g)(1) prosecution. See United States v. Hernandez, No. 24-50589,

2025 WL 3236975, at *3 (5th Cir. Nov. 20, 2025) (“To

date, this court has recognized ‘three categories of offenses that doom a defendant’s as-applied challenge

. . . theft, violence, and violating the terms of one's re3

Cf. United States v. Daniels, 124 F.4th 967, 980 and n.1 (5th Cir.

2025) (Higginson, J., concurring) (concurring in the reversal and remand to ensure the § 922(g)(3) conviction meets the requirement under intervening caselaw that it be “historically rooted”).

4

See Diaz, 116 F.4th at 464-65 (overruling Fifth Circuit precedent

for the reason that the government must identify a relevant, similar

historical tradition of firearm regulation).

5

E.g., United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir.

2024) (“Given [] assurances by the Supreme Court, and the history

that supports them, we conclude that there is no need for felony-byfelony litigation regarding the constitutionality of § 922(g)(1).”).

6

See Diaz, 116 F.4th at 466 (rejecting as dicta and ahistorical repeated Supreme Court cautions that “felons and the mentally ill”

may be permanently disarmed).

29a

lease by possessing arms while on parole. ’ ” (quoting

United States v. Kimble, 142 F.4th 308, 311-12 (5th Cir.

2025))); United States v. Orozco, No. 24-50104, 2025 WL

2623429, at *2 (5th Cir. Sept. 11, 2025) (confirming inclusion of “another category of predicate felony conviction

. . . : ‘convictions for drug trafficking’ ” (quoting

Kimble, 142 F.4th at 318)); see also United States v.

Mitchell, No. 24-60607, 2025 WL 3251467, at *18 (5th

Cir. Nov. 21, 2025) (holding that predicate felonies that

involved “present” intoxication with marijuana do not

qualify, but those that involved “habitual” intoxication

do); United States v. Doucet, No. 24-30656, 2025 WL

3515404, *6 (5th Cir. Dec. 8, 2025) (unpublished) (holding that the predicate felony of attempted marijuana

cultivation does not qualify); United States v. Kendall,

No. 24-40441, 2025 WL 1983938, at *2 (5th Cir. July 17,

2025) (holding that “injury to the elderly” qualifies as a

predicate, but leaving it unclear as to whether a separate, prior conviction for “unlawful possession of a firearm” would qualify as a valid predicate).

Diaz became our binding law after the parties litigated Cockerham’s Bruen-based dismissal motion in

district court. The parties did discuss history in the

district court, albeit not in the depth nor manner now

required by our court. The government recognized the

command from Bruen as calling for historical analogues,

but only explored history as it relates to “(1) historical

laws which categorically disqualify groups from possessing firearms based on a judgment that the group

could not be trusted to follow the law; and (2) laws authorizing capital punishment and estate forfeiture for

certain violent and nonviolent felonies the legislature

deemed serious.” As Cockerham argued in reply, the

government fell short of its burden to produce historical

30a

evidence supporting the permanent disarmament of

similarly situated persons. The district court, in turn,

necessarily applied Jones, then-binding Fifth Circuit

precedent, consistent with Heller.

On appeal, Cockerham is candid that “child support

as we know it is an entirely modern invention,” because

“[d]uring the Founding-era . . . [c]hildren were regarded ‘as a property right, to be treated as chattel.’ ”

For that reason, albeit only in post-Diaz letters pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, Cockerham asks us to compare him to a colonialera debtor, which is plausible. The government, on the

other hand, contends Cockerham, as a child-support delinquent whose willful nonpayment of past due child support was egregious enough for Mississippi to charge as

a felony offense, resembles a colonial-era thief, which is

plausible too. 7 The majority aligns itself with Cockerham’s analogy to debtors in the Founding era. This

may ultimately be a defensible choice about a predicate

such as Cockerham’s, but it is one we are not yet in a

position to render.

Right or wrong, both retrospectives seek to accommodate our unique Diaz rule, and are plausible proffers

given to us for the first time, minimally, on appeal. But

history cannot be an advocate’s pick, nor ours. The

near-unanimous Supreme Court ruling in Rahimi articCf. Bryant v. State, 567 So.2d 234, 236 (Miss. 1990) (rejecting defendants' arguments that Mississippi’s material support criminal

statute unconstitutionally provides for imprisonment for debt for

nonpayment of support, stating ‘[t]his State has a legitimate interest

in criminally prosecuting financially able parents who wilfully [sic]

desert or fail to support their children when in destitute or necessitous circumstances.”).

7

31a

ulated this as well, admonishing courts of appeals neither to impose “law trapped in amber,” nor to “ ‘require

a ‘historical twin’ rather than a ‘historical analogue.’ ’ ”

Rahimi, 602 U.S. at 691, 701 (quoting Bruen, 597 U.S.

at 30).

Therefore, we should remand for several reasons.

First, and as a threshold matter, we should remand because our binding law and the evidentiary framework

for analyzing § 922(g)(1) challenges have changed.

That’s good reason by itself to let the parties and district

court compile a historical record responsive to our new

rule. Per Diaz, the historical question for the district

court’s resolution now is: Are felons who evaded child

support more like those at the founding who evaded

taxes or debts, or more like those who committed common theft, whom we have held in Diaz can be punished

by lifetime gun dispossession?

Second, we should remand for some fractional

amount of history to be compiled and, more importantly,

assessed under this new framework. Compiling historical records requires diligence. Compare Jackson, 110

F.4th at 1125-29 (discussing applicable historical analogues for dispossessing felons); with Mitchell, 2025 WL

3251467 at *14-18 (same); and with Kanter v. Barr, 919

F.3d 437, 466 n.15 (7th Cir. 2019) (Barrett, J., dissenting) (expounding upon the historical inquiry over ten

pages).8 By contrast, here, the majority is left with the

See also Morgan Schmidt, Note, Felons in Possession: Rejecting

the Third Circuit and its Application of Bruen, 69 ST. LOUIS U. L.J.

409 (2025) (discussing the history work the Supreme Court requires

and the burden that has shifted from courts to the government). I

also do not consider historical legal analysis more difficult than ruleguided inquiry into “foreign law” determinations, already done in

8

32a

apparent fact that colonial era debtors “were released

once their debts were paid,” yet thieves were not. Extrapolating from that distinction, but engaging with no

historical records, and doing no analogical reasoning except to repeat that “thieves were treated differently

from debtors,” the majority stops at this: “We are unable to find a historical basis for disarming Cockerham

for the rest of his life, just because he was once convicted

of failure to pay child support.” 9 This inability confirms why I would remand.

both the civil and criminal context. See Allison Orr Larsen, History’s Identity Crisis, 78 SMU L. REV. 293, 318 (2025) (discussing,

as a scholar who seeks to assist courts in doing the task required by

Bruen, whether and how to evaluate “history and tradition” in the

Second Amendment context; noting foreign law determination methods; and acknowledging that “[t]he smartest path takes hard work

and slow, deliberate thinking”); see also Zachary D. Clopton, Foreign Law on the Ground, 52 YALE J. OF INT’L LAW 50 (2025) (surveying the history of federal court usage of foreign law and recognizing its relevance for “history and tradition” inquiries in the Second Amendment context).

9

To be sure, the majority’s decision also focuses on the perils of

“overreach compounded by overcriminalization” and “hoplophobia.”

Op. at 2-3. But the first is left to the people and their representatives,

which can and do widely distinguish among felons. Compare Zach

Sherwood, Note, Time to Reload: The Harms of the Federal Felonin-Possession Ban in a Post-Heller World, 70 DUKE L.J. 1429, 1468

n.260 (2021) (discussing various state approaches to gun regulations

of those with felony convictions), with Hatfield v. Barr, 925 F.3d 950,

951 (7th Cir. 2019) (“Whatever may be true of spontaneous or victimless crimes, a person convicted of fraud is not the sort of lawabiding, responsible citizen to whom Heller referred.”), and with

Kanter, 919 F.3d at 466 n.15 (BARRETT, J., dissenting) (discussing

the ability of “Congress and state legislatures to expand the number

of qualifying nonviolent offenses,” such as stealing a lollipop as discussed in United States v. Phillips, 827 F.3d 1171, 1176 n.5 (9th Cir.

2016)). The second—hoplophobia—which I admittedly had to look

33a

Third, remand would reinforce our Article III position.

Intermediate appellate courts neither decide

facts nor create law. Our role is error correction, no

more and no less. There would be less Second Amendment disarray if fastidious historical work were done:

First, by the prosecution; then tested in adversary

presentation, and perhaps assisted by expert historians;

and then adjudicated by district courts in the first

instance, not us. See Smith, 2025 WL 2938691 at *2

(“On remand, the government must meet its burden under Bruen to present historical analogues justifying

§ 922(g)(1)’s constitutionality as applied to [defendant].”). The Supreme Court has prescribed this sequence and given the government, defendants, and district courts meaningful roles when it comes to compiling

historical records and applying the Second Amendment.

Only in proper sequence, can intermediate appellate

courts responsibly assess facts and reasons and distill

cohesive law, doing our best to decide the significant liberty interests—and consequences—of the Second and

Fifth Amendments.

Of course, I am cautious also about invalidating laws

enacted through our democratic process, in place for

over half a century, because federal judges disagree

with each other about what the relevant historical analogue is and, here, two of us declare we are “unable to

find” one. However, I also recognize these very same

laws expose many Americans to additional convictions

and sentences. Almost twenty million Americans have

felony convictions. Thus, I am even more cautious

about our court’s piecemeal approach to the § 922(g)(1)

up, strikes me more as divination, or accusation; if true, it’s an apprehension courts will not likely ameliorate.

34a

landscape, which provides little notice to these Americans of the serious recidivism consequences they could

face. Furthermore, as Justice Alito recognized, “[t]ens

of thousands of prisoners are currently serving sentences for violating [§ 922(g)].”

Rehaif v. United

States, 588 U.S. 225, 260 (ALITO, J., dissenting). 10

Compounding this caution, I fear we repeat a methodological error similar to our court’s in Rahimi. In

colonial America, women, like children, were property.

Today, of course, they can be crime victims. But as the

Supreme Court corrected us, that development does not

mean there is no historical analogue to find and reason

from. It just means harder effort and reasoning are

required, which is the task we should expect on remand.

As in Rahimi, pertaining to misdemeanants who long

ago could batter women with impunity, because women

were chattel, so too here children once were chattel

whose support could be embezzled because none was

owed. One sounds in violence; the other, in theft—both

Presumably, if Cockerham had still been on probation or if he

had not repaid the child support, either fact would validate his conviction and lifetime ban per the majority’s reasoning. Our statutorily constrained task is to consider predicate convictions, which have

necessarily occurred in the past and been served by the time a

§ 922(g)(1) charge is brought. But the majority today looks beyond

this conviction to presumably consider whether it is still a present

issue, at least in the debt context. But in so doing, it renders the

conclusion that a certain type of thief, if you adopt the government’s

plausible analogue, may no longer be considered a thief once restitution, or the equivalent, is paid. Regardless, our law does not explain or give current notice of these incarcerative distinctions to

Americans—nor does it tell district judges how to revise pattern

jury instructions for this extensively used criminal statute, so that

jurors can adjudicate guilt, as opposed to constitutional infringement.

10

35a

may not have historical twins, but analogues.

My

point derived from Rahimi is the Court’s sensible reminder that we should not confess historical consternation or inability simply because children, like women,

once were property and depredations went unpunished.

This is underscored at present, because Cockerham’s

felony predicate under Mississippi law does not carry

the tenor of debt or financial crimes even; instead, it

characterizes the crime as “desert[ing] or willfully neglect[ing] or refus[ing] to provide for the support and

maintenance of his or her child. . . . ” MISS. CODE

ANN. § 97-5-3.

Finally, my concern about two judges summarily invalidating the application of federal criminal law, which

has provided for public safety, been enforced by thousands of judges, and been validated by the Supreme

Court repeatedly, has a third reason for salience. If

Cockerham had pled guilty in any other circuit, his conviction would stand. That’s because in at least six circuits all felons are on notice that they cannot possess

firearms. See Mancilla, 155 F.4th at 454 n.5 (ELROD,

C.J., concurring). And in two others, defendants like

Cockerham—with Presentence Report facts he did not

object to, including aggravated and domestic violence,

as well as drug trafficking while possessing this very

firearm—also would stay incarcerated due to “individualized determinations of dangerousness.” Id. I recognize that these circuits diverge from our circuit’s current approach. But I raise this split to underscore that

it is intolerable to have Americans incarcerated else-

36a

where for conduct that is constitutionally protected in

our corner of the country. 11

For these reasons—above all, my continuing discomfort that similarly situated Americans are being prosecuted and incarcerated dissimilarly, in addition to our

Even if I were to label Cockerham’s prior felony offense just as

bad as debt, contra Bryant, 567 So.2d at 236, this legerdemain risks

making § 922(g)(1) vague. What American, with a felony conviction

who wants to be law-abiding yet “bear arms,” has the crystal ball we

pull out every time we announce a new category of qualifying predicate convictions? My worry is that we, unlike every other court of

appeals, are categorizing “dangerousness” to avoid hard history work.

Of course, dangerousness has its statutory place in the criminal justice

process. Some prior convictions trigger rebuttable presumptions

regarding pretrial detention pursuant to the Bail Reform Act. And

some convictions trigger enhanced sentencing pursuant to the

Armed Criminal Career Act. These acts have statutory basis and,

regardless, regulate non-guilt determinations; more importantly,

each has been approved by the Supreme Court. Contrastingly, our

invention flatly contradicts Congress’s statutory text; it stands in

very sharp friction with repeated Supreme Court caution; and we

are trying to constitutionalize dangerousness into felony guilt. To

be clear, dangerousness may well be a decisive public safety, limiting

principle. But so might restoration of gun rights after a relatively

short period for felons, as in Texas and Louisiana. See, e.g., TEX.

PENAL CODE ANN. § 46.04(a); LA. REV. STAT. ANN. § 14:95.1(c).

Furthermore, even Americans who were violent once may well not

stay dangerous forever, just as some felons with non-violent convictions may continue to present grave public danger, like Al Capone.

See F. Lee Francis, The Mutability of Dangerousness: Domestic Violence and Second Amendment Restoration After Rahimi, 78 SMU

L. Rev. 319, 336-37 (2025). My disagreement is that courts are not

the branch of government to make these decisions outright, but instead the branch to test the constitutional bounds of such decisions.

These are important questions.

11

37a

disservice to front-line district judges, much less Americans like Cockerham, as to what list of predicate convictions turn constitutionally protected gun possession into

a felony criminal offense—I respectfully dissent.

38a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

WESETERN DIVISION

Criminal Action No. 5:21-cr-6-DCB-FKB-1

UNITED STATES

v.

EDWARD COCKERHAM, DEFENDANT

Filed:

Feb. 12, 2024

MEMORANDUM OPINION AND ORDER

BEFORE THE COURT is Edward Cockerham

(“Defendant”)’s Second Motion to Dismiss Indictment,

[ECF No. 48] (“Motion”), in which Defendant maintains

that 18 U.S.C. §§ 922(g)(1) 1 is unconstitutional as ap-

Section 922(g)(1) 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.

18 U.S.C.A. § 922(g)(1).

1

39a

plied to him under the Second Amendment. 2 Defendant contends that under New York State Rifle & Pistol

Ass’n, Inc. v. Bruen, 3 Fifth Circuit progeny United

States v. Rahimi 4 and United States v. Daniels, 5 and

the Southern District’s decision in United States v. Bullock,6 the Government cannot meet its burden of showing “the existence of a historical tradition of disarming

felons.” [ECF No. 48] at 10. The Government filed a

Response, in which they refer to nearly 120 post-Bruen

decisions from district courts nationwide that upheld the

constitutionality of § 922(g)(1). [ECF No. 49] at 16-18,

n.3. Defendant filed a Reply, averring that the Government failed to point to “a single historical statute or

rule that supports the permanent and complete disarming of people similarly situated to [Defendant].” [ECF

No. 50] at 2. The Court, having examined the submissions of the parties, the record, the applicable legal authority, and being fully informed in the premises, finds

that the Motion should be denied.

DISCUSSION

On September 8, 2021, a federal grand jury indicted

Defendant on a charge of felon in possession of a firearm

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

[ECF No. 3].

The Second Amendment to the United States Constitution provides: “A well regulated Militia, being necessary to the security of a

free State, the right of the people to keep and bear Arms, shall not

be infringed.” U.S. Const. amend. II.

3

597 U.S. 1 (2022).

4

61 F.4th 443 (5th Cir. 2023).

5

77 F.4th 337 (5th Cir. 2023).

6

No. 3:18-CR-165-CWR-FKB, 2023 WL 4232309 (S.D. Miss. June

28, 2023).

2

40a

Defendant filed his first Motion to Dismiss the Indictment on August 31, 2022, arguing that § 922(g)(1) is

facially unconstitutional under the Second Amendment

and pursuant to the Supreme Court’s decision in Bruen.

[ECF No. 25] at 1. This Court denied the first Motion

to Dismiss on September 13, 2022, because the Fifth

Circuit has consistently upheld the constitutionality of

§ 922 generally and subsection (g)(1) specifically.

[ECF No. 31] at 4.

Defendant now challenges the indictment as applied

to him7 in his Second Motion to Dismiss and moves this

Court to dismiss the indictment. [ECF No. 48].

“A party may raise by pretrial motion any defense,

objection, or request that the court can determine without a trial of the general issue.” FED. R. CRIM. P.

12(b). The Fifth Circuit has held that “[t]he propriety

of a motion to dismiss an indictment . . . by pretrial

motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact.” United States v. Fontenot, 662 F.3d 640, 644 (5th Cir. 2011) (citations omitted). “If a question of law is involved, then consideration of the motion is generally proper.” Id. Defendant’s Second Amendment constitutional challenge to

§ 922(g)(1) raises a matter of law that can properly be

decided before trial.

The Court also is guided by the firmly established

principle that dismissal of an indictment is extraordi“In an as-applied challenge, the court asks whether a law with

some permissible uses ‘is nonetheless unconstitutional as applied to

appellant’s activity. . . . ’ ” United States v. Bullock, No. 3:18CR-165-CWR-FKB, 2023 WL 4232309, at *5 (S.D. Miss. June 28,

2023) (quoting Spence v. Washington, 418 U.S. 405, 414 (1974)).

7

41a

nary and unusual relief because, unlike dispositive motion practice in civil cases, it encroaches upon the fundamental role of the grand jury. See, e.g., United States

v. McFadden, 59 F.3d 1243, 1243 n.4 (5th Cir. 1995) (dismissal of an indictment is limited to “extraordinary situations”); United States v. Fulmer, 722 F.2d 1192, 1195

(5th Cir. 1983) (“For this reason, we have held that a

district court may dismiss an indictment with prejudice

only where it has been shown that governmental misconduct or gross negligence in prosecuting the case has actually prejudiced the defendant.”).

Section 922(g)(1) prohibits any person convicted of a

“crime punishable by imprisonment for a term exceeding one year” from possessing a firearm. The Second

Amendment presumptively protects the proscribed conduct, so Bruen requires that the “government must then

justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm

regulation.” Bruen, 597 U.S. at 24. Defendant essentially argues that the Government cannot satisfy this requirement.

This Court has previously noted the numerous challenges to Section 922(g)(1) post-Bruen in the Southern

District. See United States v. Reed, No. 5:23-CR-4DCB-FKB, at 4 (S.D. Miss. Jan. 8, 2024); and United

States v. Dillon, No. 5:23-CR-3-DCB-FKB, at 10 (S.D.

Miss. Jan. 8, 2024). Moreover, the Court recently

found “there is a virtual unanimity in the district courts

of the Fifth Circuit upholding section 922(g)(1) in

Bruen’s wake.” United States v. Gwinn, No. 1:23-CR50-LG-RPM-1, 2023 WL 8242711, at *1 (S.D. Miss. Nov.

28, 2023); contra Bullock, 2023 WL 4232309 at *31, appeal docketed (5th Cir. July 31, 2023). Many courts in

42a

the Fifth Circuit have also thoroughly chronicled and

analyzed the development of pre-Bruen and post-Bruen

caselaw, so there is no need to repeat that narrative

here. See, e.g., United States v. Brown, No. 4:23-CR00071, 2023 8794641, at *2-3 (N.D. Miss. Dec. 20, 2023)

(tracing the relevant case history since District of Columbia v. Heller, 554 U.S. 570 (2008)); United States v.

Schnur, No. 1:23-CR-65-LG-BWR-1, 2023 WL 4881383,

at *1-10 (S.D. Miss. July 31, 2023 (exhaustive history of

pre-Bruen and post-Bruen cases, as well as an in-depth

historical analysis of the Second Amendment, including

historical support for felon disarmament at the time of

America’s founding). 8

Of note from the historical analysis in Schnur is the following excerpt:

Most writers and historians agree. From time immemorial,

various jurisdictions recognizing a right to arms have nevertheless taken the step of forbidding suspect groups from having

arms. See Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations, 60 HASTINGS L.J. 1339, 1360 (2009); See also Robert Dowlut, The Right

to Arms: Does the Constitution or the Predilection of Judges

Reign?, 36 OKLA. L. REV. 65, 96 (1983) (“Colonial and English

societies of the eighteenth century, as well as their modern counterparts, have excluded infants, idiots, lunatics, and felons [from

possessing firearms].”). Although the historical record provides no “dead ringer[s],” Bruen, 142 S. Ct. at 2133, courts have

nevertheless found support for “the idea that the original understanding of the right codified by the Second Amendment permitted some categorical limits on the right to bear arms,” including

“the disarmament of persons deemed dangerous or a threat to

public safety.” Zelaya Hernandez, 2023 WL 4161203 (citations

omitted).

Schnur, 2023 WL 4881383, at *9.

8

43a

The Fifth Circuit recently held that Section 922(g)(1)

“is not clearly or obviously unconstitutional under

Bruen.” United States v. Murray, No. 23-10234, 2024

WL 21398, at *3 (5th Cir. Jan. 2, 2024) (citing United

States v. Jones, 88 F.4th 571, 573-74 (5th Cir. 2023) (decided November 21, 2023)). Defendant correctly observes in his Reply that the Fifth Circuit has not conclusively decided the question of the constitutionality of

Section 922(g)(1) in a matter where the Bruen challenge

was properly preserved at the trial level. [ECF No. 50]

at 4 (citing United States v. Washington, No. 22-10574,

2023 WL 5275013 (5th Cir. Aug. 16, 2023)). Still, the

Fifth Circuit has consistently upheld Section 922(g)(1)

convictions under plain error review where the Bruen

challenge was not raised and preserved pre-conviction.

See, e.g., Murray, 2024 WL 21398, at *1-2; Jones, 2023

88 F.4th at 573-74; United States v. Roy, No. 22-10677,

2023 WL 3073266, at *1 (5th Cir. Apr. 25, 2023), cert.

denied, 144 S. Ct. 234 (2023); United States v. Hickcox,

No. 22-50365, 2023 WL 3075054, at *1 (5th Cir. Apr. 25,

2023), cert. denied, 144 S. Ct. 237 (2023).

Mindful of the procedurally distinct plain error

standard of review applicable to the above-referenced

post-conviction appeals, the Court nonetheless finds instructive the Fifth Circuit’s synopsis of current Section

922(g)(1) law in Jones:

Before Bruen, this court held that § 922(g)(1) does

not violate the Second Amendment.

See, e.g.,

United States v. Darrington, 351 F.3d 632, 633-34

(5th Cir. 2003). And in his concurring opinion in

Bruen, Justice Kavanaugh—quoting District of Columbia v. Heller, 554 U.S. 570, 626-27, 128 S. Ct. 2783,

171 L. Ed. 2d 637 (2008), and McDonald v. Chicago,

44a

561 U.S. 742, 786, 130 S. Ct. 3020, 177 L. Ed. 2d 894

(2010)—stated: “[N]othing in our opinion should be

taken to cast doubt on longstanding prohibitions on

the possession of firearms by felons and the mentally

ill.” Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring) (internal quotation marks omitted).

This court has not yet addressed the impact of Bruen

on the constitutionality of § 922(g)(1) in a case in

which the issue was preserved in the district court.

. . .

The Third and Eighth Circuits have considered the

constitutionality of § 922(g)(1) after Bruen and

reached conflicting results.

See Range v. Att'y

Gen., 69 F.4th 96, 98-99 (3d Cir. 2023) (en banc) (rejecting the Government's argument that statements

in Heller, McDonald, and Bruen seemingly approved

of felon disarmament and holding that the defendant

remained one of the people protected by the Second

Amendment given his particular felony conviction

and had a right to purchase a hunting rifle and shotgun for self-defense); United States v. Cunningham,

70 F.4th 502, 506 (8th Cir. 2023) (holding that “[t]he

longstanding prohibition on possession of firearms

by felons is constitutional”).

Given the absence of binding precedent holding that

§ 922(g)(1) is unconstitutional, and that it is unclear

that Bruen dictates such a result , we have rejected

plain-error challenges to § 922(g)(1) under Bruen in

several unpublished opinions.

See, e.g., United

States v. Roy, No. 22-10677, 2023 WL 3073266 (5th

Cir. Apr. 25, 2023) (unpublished), cert. denied, No.

23-5188, — U.S. —, 144 S. Ct. 234, — L. Ed. 2d —

(U.S. Oct. 2, 2023); United States v. Hickcox, No. 22-

45a

50365, 2023 WL 3075054 (5th Cir. Apr. 25, 2023) (unpublished), cert. denied, No. 23-5130, — U.S. —, 144

S. Ct. 237, — L. Ed. 2d — (U.S. Oct. 2, 2023); United

States v. Pickett, No. 22-11006, 2023 WL 3193281, 1

(5th Cir. May 2, 2023) (unpublished); United States v.

Smith, No. 22-10795, 2023 WL 5814936 (5th Cir. Sept.

8, 2023) (unpublished); United States v. Racliff, No.

22-10409, 2023 WL 5972049 (5th Cir. Sept. 14, 2023)

(unpublished); United States v. EtchisonBrown, No.

22-10892, 2023 WL 7381451 (5th Cir. Nov. 7, 2023)

(unpublished). The different conclusions reached

by the Third and Eighth Circuits noted above further

support the conclusion that this unsettled question is

not clear or obvious error. See Salinas, 480 F.3d at

759. Accordingly, we conclude that Jones has failed

to demonstrate that the district court’s application of

§ 922(g)(1) constitutes plain error.

Jones, 88 F.4th at 573-74 (emphasis added). Absent a

Supreme Court or Fifth Circuit decision ruling otherwise, the Court is persuaded that it remains bound by

Fifth Circuit precedent under § 922(g)(1). Finding no

reason to dismiss Count 5 of the indictment against Defendant, the Motion shall be denied.

Accordingly,

IT IS HEREBY ORDERED that Defendant’s Motion [ECF No. 48] is DENIED.

SO ORDERED, this 12th day of February, 2024.

/s/

DAVID BRAMLETTE

DAVID C. BRAMLETTE III

UNITED STATES DISTRICT JUDGE

46a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

Criminal No. 5:21-cr-6-DCB-FKB

UNITED STATES OF AMERICA, GOVERNMENT

v.

EDWARD COCKERHAM, DEFENDANT

Filed:

Sept. 13, 2022

ORDER

BEFORE THE COURT is Edward Cockerham’s

(“Defendant”) Motion to Dismiss the Indictment (“Motion”) [ECF No. 25], arguing that 18 U.S.C. § 922(g)(1)

is unconstitutional under the Second Amendment and

pursuant to the Supreme Court's recent decision in New

York State Rifle & Pistol Assoc., Inc. v. Bruen, 142

S. Ct. 2111 (2022). The Court having examined the Motion, the parties’ submissions, the record, the applicable

legal authority, and being fully informed in the premises, finds as follows:

I.

Background

On September 8, 2021, a grand jury indicted Defendant on a charge of felon in possession of a firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2). [ECF

47a

No. 4]. The Defendant has filed one Motion, which the

Court will now address.

II. Standard

Under Federal Rule of Criminal Procedure 12(b),

“[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without

a trial of the general issue.” In the Fifth Circuit, “[t]he

propriety of a motion to dismiss an indictment . . .

by pretrial motion is by-and-large contingent upon

whether the infirmity in the prosecution is essentially

one of law or involves determinations of fact.” United

States v. Fontenot, 662 F.3d 640, 644 (5th Cir. 2011) (citations omitted). “If a question of law is involved, then

consideration of the motion is generally proper.” Id.

The Court also is guided by the firmly established

principle that dismissal of an indictment is extraordinary and unusual relief because, unlike dispositive motion practice in civil cases, it encroaches upon the fundamental role of the grand jury. E.g., United States v.

McFadden, 59 F.3d 1243, n.4 (5th Cir. 1995) (dismissal

of an indictment is limited to “extraordinary situations”); United States v. Fulmer, 722 F.2d 1192, 1195

(5th Cir. 1983) (“For this reason, we have held that a

district court may dismiss an indictment with prejudice

only where it has been shown that governmental misconduct or gross negligence in prosecuting the case has actually prejudiced the defendant.”).

Here, Defendant does not dispute that the Indictment states an offense under 28 U.S.C. § 922(g)(1), but

instead challenges the statute as unconstitutional on its

face. This issue can properly be decided as a matter of

law before trial.

48a

III. Analysis

In 2008, the Supreme Court recognized an individual

right under the Second Amendment to possess firearms

in common use, such as handguns, for traditionally lawful purposes, such as self-defense within the home.

District of Columbia v. Heller, 554 U.S. 570, 592, 627

(2008). The Court found in McDonald that this right is

fundamental and applies to the states under the Due

Process Clause of the Fourteenth Amendment.

McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).

Under those decisions, the Fifth Circuit has consistently upheld the constitutionality of §922 generally and

subsection (1) specifically. See U.S. v. McGinnis, 956

F.3d 747 (5th Cir 2020); U.S. v. Anderson, 559 F.3d 348

(5th Cir. 2009); United States v. May, 538 Fed. Appx.

465, 466 (5th Cir. 2013) (citing U.S. v. Patterson, 431

F.3d 832, 836 (5th Cir. 2005)).

Thus, the question presented in Defendant’s Motion

is whether the Bruen holding constitutes an intervening

decision that invalidated as unconstitutional 922(g)(1),

which would relieve this Court of Fifth Circuit precedent upholding that criminal statute.

Under Bruen, the Second Amendment “protect[s]

the right of an ordinary, law-abiding citizen to possess a

handgun in the home for self-defense” and “an individual's right to carry a handgun for self-defense outside the

home.” Bruen, 142 S. Ct. at 2122.

Section 922(g)(1) prohibits any person convicted of a

“crime punishable by imprisonment for a term exceeding one year” from possessing a firearm, even for a lawful purpose such as self-defense. Because the Second

Amendment presumptively protects the proscribed con-

49a

duct, Bruen requires that such a law must be consistent

with a historical tradition of firearm regulation.

Bruen, 142 S. Ct. at 2129-30.

This Court has already recognized that Ҥ 922(g)'s restriction on possession of firearms by felons-another

high-risk class- has a long and established history in

English and American common law.” U.S. v. Daniels,

1:22-cr-58-LG-RHWR-1 (S.D. Miss. Jul. 8, 2022) (citing

U.S. v. Emerson, 270 F.3d 203, 226 n.21)).

Bruen teaches that the “historical inquiry that courts

must conduct will often involve reasoning by analogy”

and “determining whether a historical regulation is

proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are ‘relevantly similar. ’ ” Bruen, 142 S. Ct. at

2132.

Federal courts nationwide have rejected similar facial constitutional challenges to the felon-in-possession

statute. See United States v. Ingram, No. CR 0:18557-MGL-3, 2022 WL 3691350 (D.S.C. Aug. 25, 2022);

United States v. Jackson, No. CR-22-59-D, 2022 WL

3582504, (W.D. Okla. Aug. 19, 2022); United States v.

Nutter,

No. 2:21-CR-00142, 2022 WL 3718518, at *8 (S.D.W. Va.

Aug. 29, 2022); United States v. Burrell, No. 21-20395,

2022 WL 4096865 (E.D. Mich. Sept. 7, 2022) (citing cases

and remarking, “This Court has not identified any district court that has granted a similar motion to dismiss

any criminal charge under Section 922(g), to date.”).

The Court finds that 18 U.S.C. § 922(g)(1) is not unconstitutional on its face and there is no reason to dismiss the Indictment against Defendant.

50a

Accordingly, this Court hereby DENIES Defendants’ Motion to Dismiss the Indictment. [ECF No. 25].

SO ORDERED this 13th day of September, 2022.

/s/

DAVID BRAMLETTE

DAVID C. BRAMLETTE III

UNITED STATES DISTRICT JUDGE