Petition for Writ of Certiorari — Gregory Stevens, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

GREGORY STEVENS,

PETITIONER,

- VS. UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

KEITH M. DONOGHUE

Assistant Federal Defender

Counsel of Record

BRETT G. SWEITZER

Assistant Federal Defender

Chief of Appeals

LISA EVANS LEWIS

Chief Federal Defender

Federal Community Defender Office

for the Eastern District of Pennsylvania

Suite 540 West – The Curtis

601 Walnut Street

Philadelphia, PA 19106

(215) 928-1100

Counsel for Petitioner

QUESTIONS PRESENTED

Section 922(g)(1) of Title 18 of the United States Code makes it a crime for a person

convicted of a felony to possess a firearm at any time thereafter. Petitioner challenged the

statute’s constitutionality on the ground that lifetime disarmament based on his legal status as a

“felon” unlawfully abridges the Second Amendment right to keep and bear arms. The court of

appeals rejected his challenge without resolving the constitutionality of the status offense. It

relied instead on the view that the Second Amendment affords no protection to persons, like

petitioner, who were on parole at the time of allegedly possessing a gun. The questions presented

are:

1.

Whether a court may bypass a Second Amendment challenge to the felon-status offense

at 18 U.S.C. § 922(g)(1) when the defendant could have been charged with possessing a

gun while on parole, were such a prohibition to be enacted.

2.

Whether § 922(g)(1), on its face, unconstitutionally abridges the Second Amendment

right to keep and bear arms.

3.

Whether, if not facially unconstitutional, § 922(g)(1) violates the Second Amendment

as applied to persons convicted of felonies not punishable by death.

i

RELATED PROCEEDINGS

The following proceedings are directly related to this case:

United States v. Gregory Stevens, Third Circuit No. 24-1217,

judgment entered Feb. 28, 2025.

United States v. Gregory Stevens, E.D. Pa. No. 2:21-cr-00107-MSG,

judgment entered Feb. 5, 2024.

There are no other proceedings directly related to this case under Rule 14.1(b)(iii).

ii

TABLE OF CONTENTS

PAGE

Questions Presented ....................................................................................................................... i

Related Proceedings ...................................................................................................................... ii

Table of Contents ......................................................................................................................... iii

Table of Authorities ..................................................................................................................... iv

Opinions Below ............................................................................................................................. 1

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

Constitutional and Statutory Provisions Involved ......................................................................... 2

Statement ........................................................................................................................................ 2

Reasons for Granting the Petition .................................................................................................. 5

A.

Section 922(g)(1) is unconstitutional on its face because lifetime disarmament

based on felon status is without historical antecedent. ............................................. 8

B.

The Third Circuit’s methodology sidestepped petitioner’s facial challenge. ........... 9

C.

The Third Circuit’s methodology sidestepped petitioner’s as-applied challenge. .. 11

Conclusion ................................................................................................................................... 14

Third Circuit Opinion .................................................................................................. Appendix A

District Court Order Denying Motion to Dismiss ........................................................ Appendix B

District Court Judgment ............................................................................................... Appendix C

iii

TABLE OF AUTHORITIES

FEDERAL CASES

PAGE(s)

City of Los Angeles v. Patel,

576 U.S. 409 (2015) ........................................................................................................... 5, 10

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................................................................................................. 6

Fisher v. United States,

328 U.S. 463 (1946) ................................................................................................................. 5

Folajtar v. Attorney General,

980 F.3d 897 (3d Cir. 2020) ..................................................................................................... 7

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................................................................................................. 6, 9

Michelson v. United States,

335 U.S. 469 (1948) ................................................................................................................. 8

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

597 U.S. 1 (2022) ........................................................................................................... passim

People v. Burns,

79 N.E.3d 159 (Ill. 2015) ....................................................................................................... 10

Pitsilides v. Barr,

128 F.4th 203 (3d Cir. 2025) .................................................................................................. 10

Range v. Attorney General,

69 F.4th 96 (3d Cir. 2023) ........................................................................................................ 3

Range v. Attorney General,

124 F.4th 218 (3d Cir. 2024) .......................................................................................... 3, 7, 12

Rehaif v. United States,

588 U.S. 225 (2019) ................................................................................................................. 3

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ........................................................................................... 11, 12

United States v. Duarte,

101 F.4th 657 (9th Cir. 2024) ................................................................................................. 12

United States v. Gay,

98 F.4th 843 (7th Cir. 2024) ..................................................................................................... 9

United States v. Giglio,

126 F.4th 1039 (5th Cir. 2025) ................................................................................................. 9

United States v. Goins,

118 F.4th 794 (6th Cir. 2024) ................................................................................................... 9

iv

TABLE OF AUTHORITIES - continued

PAGE(s)

United States v. Jackson,

85 F.4th 468 (8th Cir. 2023) .................................................................................................... 7

United States v. Moore,

111 F.4th 266 (3d Cir. 2024) ............................................................................................ 4, 5, 9

United States v. Morton,

123 F.4th 492 (6th Cir. 2024) ................................................................................................... 9

United States v. Quailes,

126 F.4th 215 (3d Cir. 2025) ............................................................................................ 4, 5, 9

United States v. Rahimi,

602 U.S. 680 (2024) ......................................................................................................... 7, 8, 9

Williams v. Illinois,

399 U.S. 235 (1970) ............................................................................................................... 10

FEDERAL STATUTES

PAGE(s)

18 U.S.C. § 922 .................................................................................................................... passim

18 U.S.C. § 924 .............................................................................................................................. 3

18 U.S.C. § 1951 ............................................................................................................................ 3

18 U.S.C. § 3231 ............................................................................................................................ 1

18 U.S.C. § 3742 ............................................................................................................................ 1

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

28 U.S.C. § 1291 ............................................................................................................................ 1

SENTENCING GUIDELINES

PAGE(s)

U.S.S.G. § 2A2.1 ........................................................................................................................... 4

U.S.S.G. § 2K2.1 ........................................................................................................................... 4

U.S.S.G. § 2X1.1 ........................................................................................................................... 4

OTHER AUTHORITIES

PAGE(s)

Pub. L. No. 75-785, § 1(6), 52 Stat. 1250 ....................................................................................... 7

Fed. R. Evid. 404(a) ........................................................................................................................ 8

Erin E. Braatz, The Eighth Amendment’s Milieu: Penal Reform in the Late Eighteenth Century,

106 J. Crim. L. & Criminology 405 (2016) ........................................................................... 12

v

TABLE OF AUTHORITIES - continued

PAGE(s)

Dane, Digest of American Law (1823) ........................................................................................ 12

Edwin R. Keedy, History of the Pennsylvania Statute Creating Degrees of Murder,

97 U. Pa. L. Rev. 759 (1949) .................................................................................................. 12

Sarah K.S. Shannon, et al., The Growth, Scope, and Spatial Distribution of People with

Felony Records in the United States, 54 Demography 1795 (2018) ..................................... 11

Dru Stevenson, In Defense of Felon-in-Possession Law, 43 Cardozo L. Rev. 1573 (2022) ....... 11

Adam Winkler, Heller’s Catch-22, 56 UCLA L. Rev. 1551 (2009) ............................................. 7

vi

No. _______

IN THE SUPREME COURT OF THE UNITED STATES

GREGORY STEVENS,

PETITIONER

v.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

Petitioner Gregory Stevens respectfully requests that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the Third Circuit entered in this case on

February 28, 2025.

OPINIONS BELOW

The opinion of the court of appeals, along with a dissenting opinion, is unpublished but

available at 2025 WL 651456 and reproduced at Appendix (“Pet. App.”) A, 1a–10a. The district

court’s order denying petitioner’s motion to dismiss on Second Amendment grounds is at Pet.

App. B, 11a–16a. The judgment is at Pet. App. C, 17a–23a.

JURISDICTION

The district court had jurisdiction over this federal criminal case pursuant to 18 U.S.C.

§ 3231. The court of appeals had jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a)(1). That court issued its opinion and entered judgment on February 28, 2025. This

petition is timely filed pursuant to Rule 13.1 and the granting of petitioner’s application for an

extension of time, docketed at No. 24A1126. The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Second Amendment to the United States Constitution states:

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.

Section 922 of Title 18 of the United States Code provides:

(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.

STATEMENT

Petitioner Gregory Stevens was charged with possessing ammunition after conviction of

a felony, in violation of 18 U.S.C. § 922(g)(1), and additional federal offenses. He moved to

dismiss the § 922(g)(1) charge on the ground that its lifelong revocation of his right to keep and

bear arms violates the Second Amendment. The district court denied the motion and thereafter

sentenced petitioner to more than 30 years of imprisonment. The Third Circuit affirmed.

1. In February 2021, a man entered a neighborhood pharmacy in Philadelphia and

demanded oxycodone at gunpoint. Staffing the counter was the pharmacy’s owner, who began

filling a bag with drugs and looking for oxycodone. Impatient, the robber threatened to shoot

unless the man hurried up, but instead the robber soon grabbed the bag, put the gun in his pocket,

and bent down to look in a safe for drugs. Moments later the owner gripped the robber in a bear

hug and took him to the ground. As the robber was getting back up, he shot the owner in the

chest and then fled the store. The owner survived. Pet. App. 2a.

2

Petitioner was subsequently arrested and charged in a two-count indictment with Hobbs

Act robbery, in violation of 18 U.S.C. § 1951(a), and discharging a firearm in a crime of

violence, in violation of § 924(c)(1)(A)(iii). More than 18 months later, a superseding indictment

added a count charging him with possessing ammunition after conviction of a felony, in violation

of § 922(g)(1), based on a loaded firearm magazine recovered at the scene of the robbery. By

criminalizing simple possession of guns or ammunition, conduct which, of course, “can be

entirely innocent,” Rehaif v. United States, 588 U.S. 225, 232 (2019), the statute makes “the

defendant’s status … the crucial element separating innocent from wrongful conduct,” id. at 233

(internal quotation marks omitted).

The following month, petitioner pleaded guilty to the superseding indictment, but some

months after that he moved to withdraw his plea to the § 922(g)(1) count and for the count’s

dismissal based on an intervening Third Circuit decision holding the statute to violate the Second

Amendment as applied to the plaintiff in that case. 1 Mr. Stevens challenged § 922(g)(1)’s

constitutionality not only as to himself but also on its face, arguing that the statute, as “a modern

innovation with no pre-twentieth-century analogue,” runs “afoul of the Second Amendment

when applied to anyone, regardless of their criminal history.” C.A. App. 52 (citing New York

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

The district court found the statute constitutional as applied to Mr. Stevens based on a

state robbery conviction he sustained in 2014 at the age of 20. In support, the court observed that

in “colonial times,” robbery “was considered such a threat to an ordered society” that it was

“punishable by death in at least one state.” C.A. App. 12 (citing 1812 New Hampshire

enactment). The court in turn rejected petitioner’s facial challenge based on its conclusion that

1

Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc), cert. granted, vacated

and remanded sub nom. Garland v. Range, 144 S. Ct. 2706 (2024), on remand at 124 F.4th 218

(3d Cir. 2024) (en banc).

3

the statute may be constitutionally applied in at least some instances. Id. at 14. Finding no “legal

basis” for permitting withdrawal of the guilty plea, the district court denied petitioner’s motions.

At sentencing, the principal dispute between the parties concerned the effect of the

§ 922(g)(1) count on the sentencing guidelines range. Had Stevens not been charged with the

status offense, the guidelines would have advised a period of imprisonment within the range of

204 to 225 months for the conduct underlying his conviction on the first two counts. But based

on his additional conviction under § 922(g)(1), the government contended for a guidelines range

of 355 to 413 months. This impact owed to a so-called “cross-reference” in the sentencing

guideline for firearm offenses. See U.S.S.G. § 2K2.1(c)(1). The provision directs that should the

district court find the defendant to have used the charged ammunition or gun to attempt to

commit first degree murder, the applicable sentencing range is the one for that offense if it is

greater than the range for the offenses actually charged. See U.S.S.G. § 2A2.1(a)(1) and id.

§ 2X1.1(c)(1).

The government called the pharmacy’s owner to testify at sentencing in connection with

the disputed cross-reference. He recounted the events described above, recalling the gun having

fired “in the blink of [an] eye” as both men scrambled back to their feet following the tackle.

C.A. App. 153; see id. at 172-173, 176. Notwithstanding first degree murder’s essential element

of premeditation, the district court found an attempt to commit that crime and proceeded to fix

sentence at the very top of its elevated sentencing range, imposing a total of 413 months (34½

years) of imprisonment.

2. On appeal, petitioner renewed his Second Amendment challenges. The Third Circuit

affirmed the district court’s denial of his motion to dismiss, albeit on a different ground. Relying

on its decision the preceding month in United States v. Quailes, 126 F.4th 215 (3d Cir. 2025), the

court held the statute constitutional as applied to Mr. Stevens based on his service of a term of

parole at the time of possessing ammunition. Pet. App. 6a. Quailes extended the circuit’s earlier

decision in United States v. Moore, 111 F.4th 266 (3d Cir. 2024), which denied a Second

Amendment challenge raised by a defendant on federal supervised release. On the analysis set

4

out in Moore and Quailes, § 922(g)(1)’s lifetime bar, as applied to persons subject to criminal

justice supervision, is consistent with the combined effect of, first, founding-era laws providing

for forfeiture of a person’s entire estate (including any arms) upon conviction of a felony, and

second, a tradition of disarming “convicts” serving custodial sentences in prison or elsewhere.

Quailes, 126 F.4th at 221 & n.7; Moore, 111 F.4th at 269-271. The court of appeals also denied a

separate challenge Mr. Stevens raised to application of the sentencing range for attempted first

degree murder. 2 This timely petition follows.

REASONS FOR GRANTING THE PETITION

Petitioner Gregory Stevens moved to dismiss a ‘felon in possession’ gun charge under 18

U.S.C. § 922(g)(1) on the ground that the statute unlawfully abridges Second Amendment rights.

The court of appeals denied the motion, but not because it found disarmament based on felon

status to pass constitutional muster. Rather, the Third Circuit held that Mr. Stevens could

constitutionally be disarmed based on a fact—his unexpired term of parole—other than the legal

status which actually makes him a prohibited person under § 922(g)(1). In doing so the court

followed its recent decisions in United States v. Moore, 111 F.4th 266 (3d Cir. 2024), and United

States v. Quailes, 126 F.4th 215 (3d Cir. 2025).

As has been reviewed before this Court by the petitioners in Moore and Quailes, 3 this

approach was improper. To determine whether a statute is facially constitutional, courts must

consider the “actual applications of the statute.” City of Los Angeles v. Patel, 576 U.S. 409, 419

(2015). Here, in upholding the § 922(g)(1) ban based on a fact inessential to the offense, the

court of appeals failed to resolve whether petitioner can constitutionally be convicted of the

2

Mr. Stevens argued that the district court had not found and the evidence did not show

the “necessary time element” of first degree murder, Fisher v. United States, 328 U.S. 463, 470

(1946), i.e., premeditation. The panel majority construed the record to indicate an implicit

finding that survived review for clear error. Pet. App. 5a. Judge Ambro dissented, discerning no

such implicit finding, and would have remanded for resentencing. See Pet. App. 7a–10a.

3

Case Nos. 24-968 and 24-7033 respectively.

5

crime with which he was actually charged. Because this question remains unanswered, the matter

must, at a minimum, be remanded for the Third Circuit to entertain the constitutional challenge

properly before it.

That said, nothing should stop this Court from taking up § 922(g)(1)’s facial

constitutionality itself. Doing so would advance the project of pruning the statute books of laws

far afield from the Nation’s historical tradition of firearm regulation. It would also offer

opportunity to affirm that once a person has repaid his debt to society for a criminal offense, the

right to keep and bear arms is among those “fundamental rights” to which he is restored.

McDonald v. City of Chicago, 561 U.S. 742, 778 (2010). Alternatively, the Court may wish to

grant certiorari in this case, or hold this case pending decision in another, to settle confusion and

disagreement among the circuits concerning what aspects of a defendant’s criminal record or

broader history properly inform assessment of § 922(g)(1)’s constitutionality as applied.

A.

Section 922(g)(1) is unconstitutional on its face because lifetime disarmament

based on felon status is without historical antecedent.

As has also been reviewed in other petitions before the Court this Term, 4 § 922(g)(1) is

facially unconstitutional because the lifetime bar it places upon all persons convicted of a felony

is not “consistent with the Nation’s historical tradition of firearm regulation.” New York State

Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 24 (2022).

Like all Americans, petitioner is among “the people” whose “right to keep and bear

Arms” is vouchsafed by the Second Amendment. District of Columbia v. Heller, 554 U.S. 570,

581 (2008). Since § 922(g)(1) prohibits any possession of a gun or ammunition, the statute

regulates conduct within the scope of the constitutional text. It is therefore incumbent on the

government to demonstrate the requisite fit with historical tradition by identifying analogous

founding-era regulations showing that lifetime disarmament based on felon status is consistent

4

See, e.g., Toney v. United States, No. 24-7253 (cert. denied June 23, 2025); Diaz v.

United States, No. 24-6625 (cert. denied June 23, 2025); French v. United States, No. 24-6623

(cert. denied May 19, 2025).

6

with the principles underlying the Second Amendment. In judging contemporary statutes, courts

must consider both “why and how the regulation burdens the right,” as even a law that “regulates

arms-bearing for a permissible reason … may not be compatible with the right if it does so to an

extent beyond what was done at the founding.” United States v. Rahimi, 602 U.S. 680, 692

(2024). The ultimate question is whether § 922(g)(1) imposes “a comparable burden on the right

of armed self-defense” that is “comparably justified.” Bruen, 597 U.S. at 29.

It does not. While it may be that people “considered dangerous lost their arms” in the

decades surrounding ratification of the Second Amendment, “being a criminal had little to do

with it.” United States v. Jackson, 85 F.4th 468, 472 (8th Cir. 2023) (Stras, J., dissenting from

denial of rehearing en banc). Rather, in the founding era “most punishments were temporary,”

and “once wrongdoers had paid their debts to society, the colonists forgave them and welcomed

them back into the fold.” Folajtar v. Attorney General, 980 F.3d 897, 912, 923 (3d Cir. 2020)

(Bibas, J., dissenting). So-called “felons” were then restored to full enjoyment of at least their

natural rights, if not every privilege and immunity of citizenship. See id. at 924 (“Though [the

plaintiff’s] tax-fraud conviction affects some of her privileges, it does not change her right to

keep and bear arms.”). So “a felon could acquire arms after completing his sentence and

reintegrating into society.” Range v. Attorney General, 124 F.4th 218, 231 (3d Cir. 2024) (en

banc).

In the years since Heller and Bruen, the government has yet to put forward a single

founding-era law barring citizens from keeping and bearing arms based on felony status. It was

only in 1938 that Congress prohibited even persons convicted of certain exceptionally serious

crimes, such as murder and rape, from receiving a firearm in interstate commerce. See Pub. L.

No. 75-785, § 1(6), 52 Stat. 1250, 1250-51 (June 30, 1938); Adam Winkler, Heller’s Catch-22,

56 UCLA L. Rev. 1551, 1563 (2009). And not until the latter half of the 20th century did

Congress disarm Americans based on felon status alone. See Range, 124 F.4th at 229.

To be sure, the nation’s tradition of firearm regulation does permit temporary

disarmament based on a judicial finding that a person poses a clear and present danger of

7

violence to another. See Rahimi, 602 U.S. at 702. But conviction of a felony entails no finding of

an active threat—only of the elements of an offense. And while the Second Amendment may or

may not contemplate disarmament of “categories of persons thought by a legislature to present a

special danger of misuse,” id. at 698, felon status is too broad and variable a proxy—being

contingent on the legislative prerogative to define crimes—to pass constitutional muster. See

Bruen, 597 U.S. at 26 (courts may not “defer to the determinations of legislatures” with respect

to Second Amendment’s guarantee). Even as to violent crimes, § 922(g)(1) codifies an inference

of incorrigible ‘propensity’ that our legal tradition elsewhere abhors. E.g., Fed. R. Evid. 404(a);

see Michelson v. United States, 335 U.S. 469, 475 (1948) (“Courts that follow the common-law

tradition almost unanimously have come to disallow resort by the prosecution to any kind of

evidence of a defendant’s evil character to establish a probability of his guilt.”).

Turning to the “how” dimension of analysis, § 922(g)(1)’s lifetime bar burdens the right

to an extent beyond any regulation of the founding era. To date, the government’s own search for

laws permanently disarming a citizen has yielded only draft penal codes from the 1820s that

“ultimately were not adopted.” Brief in Opposition at 8, Jackson v. United States, No. 24-6517.

Consistent with this lack of authority, Rahimi stressed that the disarmament provision there at

issue was “temporary,” lasting only “so long as the defendant ‘is’ subject to a restraining order,”

and thus burdening the right in a manner analogous to historical “surety bonds of limited

duration.” 602 U.S. at 699. The Court also cautioned that it “conclude[d] only this: An individual

found by a court to pose a credible threat to the physical safety of another may be temporarily

disarmed consistent with the Second Amendment.” Id. at 702 (emphasis added). 5

For these reasons, a proper application of Bruen’s analytic framework leads

straightforwardly to the conclusion that § 922(g)(1) unlawfully abridges the Second Amendment

5

In a recent filing, the government too has implicitly recognized the salience of

§ 922(g)(1)’s lifetime duration, stressing with respect to a different provision of § 922(g) that the

distinct bar it imposes is temporary and indeed terminable at will by ceasing drug use. See

Petition for Writ of Cert. at 2, United States v. Hemani, No. 24-1234; id. at 9, 20.

8

right to keep and bear arms. Certiorari should be granted to vindicate this fundamental guarantee

“essential to the preservation of liberty.” McDonald, 561 U.S. at 858 (Thomas, J., concurring in

part and concurring in judgment).

B.

The Third Circuit’s methodology sidestepped petitioner’s facial challenge.

The court of appeals summarily rejected Mr. Stevens’s facial and as-applied challenges

under circuit precedent holding that “the Second Amendment affords parolees no protection,”

Pet. App. 6a, because “parolees and probationers—like convicts on federal supervised release—

are still serving their sentences.” United States v. Quailes, 126 F.4th 215, 223 (3d Cir. 2025),

pet’n for cert filed, No. 24-7033 (distributed for conference of September 29); see United States

v. Moore, 111 F.4th 266, 273 (3d Cir. 2024), pet’n for cert filed, No. 24-968 (distributed for

conference of June 26).

On the Third Circuit’s view, disarmament of persons subject to criminal justice

supervision passes muster under the combined effect of founding-era laws providing for (i) the

forfeiture of a person’s estate (including any arms) upon conviction of a felony, and (ii)

disarmament of persons serving custodial sentences in prison or elsewhere. Quailes, 126 F.4th at

221 & n.7; see Moore, 111 F.4th at 269-271. Two other circuits have now followed in these

conclusions. See United States v. Giglio, 126 F.4th 1039, 1044 (5th Cir. 2025); United States v.

Goins, 118 F.4th 794, 802 (6th Cir. 2024); see also United States v. Gay, 98 F.4th 843, 847 (7th

Cir. 2024) (similarly holding § 922(g)(1) constitutional as applied to parolee).

Even on its own terms, the analysis falls short. Quailes itself observes that “parole has

been around for centuries,” 126 F.4th at 223 n.10, yet the opinion offers no comment on the fact

that, so far as its discussion shows, no founding-era law disarmed parolees. Nor does Moore

address the absence of any such historical analogue. To be sure, Bruen’s analytic framework

does not require a “historical twin,” Rahimi, 602 U.S. at 692, but when a present-day regulation

newly disarms a category of persons perfectly familiar at the founding, “the lack of a historical

twin” is difficult to ignore. United States v. Morton, 123 F.4th 492, 499 n.2 (6th Cir. 2024). In

9

such instances, the government’s inability to point to “a distinctly similar historical regulation”

will tend to show that a contemporary enactment is inconsistent with the Second Amendment.

Bruen, 597 U.S. at 26.

More fundamentally, the Third Circuit’s inspection of founding-era estate forfeiture laws

to decide the constitutionality of § 922(g)(1) sidestepped the question before it: whether

permanently disarming all persons convicted of a felony comports with the nation’s tradition of

gun regulation. As the petitioners in Moore and Quailes have explained, the court of appeals in

effect asked whether any characteristic of the defendant could supply a valid historical basis for

disarmament were a legislature to attach this consequence to it. See Petition at 12-13, Reply at 6,

Moore v. United States, No. 24-968; Petition at 10, Quailes v. United States; No. 24-7033. 6

This was error. “An 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). In Burns, the

Supreme Court of Illinois postulated—prior to this Court’s decision in Bruen—that a law barring

felons from carrying firearms in public might pass constitutional muster. See id. at 165. But in

the case at bar, it explained, the defendant’s felon status had no bearing on his facial challenge to

a statute prohibiting public carry on the part of all citizens. It was “precisely because the

prohibition is not limited to a particular subset of persons” that “the statute, as written, is

unconstitutional on its face.” Id. (citing City of Los Angeles v. Patel, 576 U.S. 409 (2015)); see

also Williams v. Illinois, 399 U.S. 235, 238-39 (1970) (explaining that possibility of legislature

enacting a higher statutory maximum for petitioner’s offense did not cure sentence subjecting

him to imprisonment beyond existing maximum based on inability to pay a fine).

6

Indeed, shortly after its decision in Quailes, the Third Circuit instructed in another case

that resolution of as-applied challenges requires consideration of “a convict’s entire criminal

history and post-conviction conduct indicative of dangerousness, along with his predicate offense

and the conduct giving rise to that conviction.” Pitsilides v. Barr, 128 F.4th 203, 212 (3d Cir.

2025).

10

So too here. Even stipulating that persons subject to criminal justice supervision may be

deprived of the right to keep and bear arms, that does not disqualify a parolee from mounting a

facial attack on § 922(g)(1)’s much broader prohibition of gun possession by anyone with a

felony conviction. When confronted with such a Second Amendment challenge, a court’s task is

not to identify facts about a defendant which a legislature might in theory lawfully mark off as

ground for disarmament. Rather, it is to determine whether the facts actually marked off by the

challenged regulation—either generally or in the defendant’s particular case—bring the

regulation within the compass of the nation’s historical tradition of firearm regulation. See

United States v. Diaz, 116 F.4th 458, 467 (5th Cir. 2024), cert. denied, No. 24-6625 (June 23,

2025). Here, the Third Circuit’s conclusion that Congress might constitutionally disarm parolees,

should it elect to do so, bypassed the constitutional inquiry pertinent to § 922(g)(1): whether

Congress may constitutionally disarm anyone convicted of a felony.

Mr. Stevens’s case is a compelling vehicle for cutting off the analytic detour made by the

Third Circuit and now followed by two additional circuits. Equally, the case is a vehicle for

deciding whether § 922(g)(1)’s lifelong gun ban is unconstitutional on its face. The issue was

squarely preserved, and there is no doubt of the question’s magnitude: recent estimates of the

number of individuals with felony convictions range from 19 million to 24 million. See Dru

Stevenson, In Defense of Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573, 1591 (2022);

Sarah K.S. Shannon, et al., The Growth, Scope, and Spatial Distribution of People with Felony

Records in the United States, 54 Demography 1795, 1807 (2018). Certiorari should accordingly

be granted and, at a minimum, the judgment below vacated and the matter remanded with

instructions to decide whether Mr. Stevens may constitutionally be convicted of the crime with

which he was actually charged.

C.

The Third Circuit’s methodology sidestepped petitioner’s as-applied

challenge.

The Third Circuit’s misdirected inquiry likewise failed to confront petitioner’s argument

that § 922(g)(1) is unconstitutional as applied to him because the government has not shown any

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prior conviction for a capital crime. See United States v. Diaz, 116 F.4th 458, 469-70 (5th Cir.

2024), cert. denied, No. 24-6625; United States v. Duarte, 101 F.4th 657, 689-691 (9th Cir.

2024), reh’g en banc granted, opinion vacated, 108 F.4th 786; contra, id., on reh’g en banc, 137

F.4th 743 (9th Cir. 2025). As he contended before the Third Circuit, see C.A. App. Br. 14, 27-28,

only conviction of a crime punishable by death might, by virtue of that penalty’s unique finality,

supply a historical analogue for the lifelong disarmament provided by § 922(g)(1).

While most felonies may have been capital crimes in 18th-century England, by the time

of the founding “many states were moving away from making felonies … punishable by death in

America.” Range v. Attorney General, 124 F.4th 218, 227 (3d Cir. 2024) (en banc). One

antebellum practitioner observed that while “there were ‘many felonies’ on the books in the late

18th- and early 19th-century, ‘not one [was] punished with forfeiture of estate, and but a very

few with death.’” Duarte, 101 F.4th at 689 (quoting 6 Dane, Digest of American Law 715

(1823)). In Pennsylvania, for example, the only felony punishable by death under a 1794

enactment was murder of the first degree. See 4 Journal of the Senate 80, 242 (Pa. 1794), quoted

in Edwin R. Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa.

L. Rev. 759, 772 (1949); see also Erin E. Braatz, The Eighth Amendment’s Milieu: Penal Reform

in the Late Eighteenth Century, 106 J. Crim. L. & Criminology 405, 434-35, 452 (2016). Thus,

even a record of crimes whose labels may call to mind violent acts does not inevitably foreclose

a defendant’s challenge to the constitutionality of § 922(g)(1) as applied. See Supplemental Brief

of Federal Parties at 4 n.1, Garland v. Range, No. 23-374 (filed June 24, 2024) (listing 12 cases

where § 922(g)(1) held unconstitutional as applied to defendants with convictions for “violent

crimes”).

Mr. Stevens has several prior Pennsylvania convictions, including one for robbery, one

for burglary, and one for receiving stolen property. See C.A. App. 53-54. The government has

not pointed in these proceedings to founding-era laws making any of these offenses a capital

crime. Instead it has proffered only that at the time of the Second Amendment’s ratification,

“many felonies were punishable by death, including not only murder but forgery, counterfeiting,

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and horse theft.” C.A. App. 87. The district court, for its part, cited a New Hampshire enactment,

two decades after ratification, making robbery punishable by death. C.A. App. 12. A lone data

point, however, cannot establish a national historical tradition satisfying Bruen’s test.

Should this Court believe § 922(g)(1)’s application to require case-by-case analysis but

reject the view that its constitutionality turns on prior conviction of a capital crime, this petition

still affords a vehicle for articulating the correct test and, as discussed above, clearing up the

methodological confusion illustrated by decisions like Moore and Quailes. By the same token, if

certiorari is not granted herein, this petition should be held pending resolution of these important

questions in another case.

CONCLUSION

The petition for a writ of certiorari should be granted, or else held pending the grant of

certiorari in another case raising one or more of the questions presented. Alternatively, the

petition should be granted, the judgment below vacated, and the matter remanded with

instructions to address the Second Amendment challenge which petitioner raised in the district

court and court of appeals.

Respectfully submitted,

/s/ Keith M. Donoghue

KEITH M. DONOGHUE

Assistant Federal Defender

Counsel of Record

BRETT G. SWEITZER

Assistant Federal Defender

Chief of Appeals

LISA EVANS LEWIS

Chief Federal Defender

Federal Community Defender Office

for the Eastern District of Pennsylvania

Suite 540 West, Curtis Center

601 Walnut Street

Philadelphia, PA 19106

(215) 928-1100

June 30, 2025

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