Petition for Writ of Certiorari — Joseph Anthony Zinnerman, Jr., Petitioner v. United States

Supreme Court briefJul 1, 2025

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No. ________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

JOSEPH ANTHONY ZINNERMAN, JR.,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Fifth Circuit

__________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________________________

REBECCA L. HUDSMITH

Federal Public Defender

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of

Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

QUESTION PRESENTED

Whether an individual’s probation or supervised release status

categorically strips them of Second Amendment protection under 18 U.S.C. §

922(g)(1), or whether courts must apply Bruen’s historical analysis to determine if

the specific predicate offense historically justified disarmament, as required by the

Fifth Circuit’s decision in United States v. Diaz?

Is the lifetime ban on possession of firearms by all felons, codified at 18

U.S.C. § 922(g)(1), plainly unconstitutional on its face under Bruen because it is

permanent and applies to all persons convicted of felonies?

TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................... 1

1. Whether an individual’s probation or supervised release status

categorically strips them of Second Amendment protection under 18

U.S.C. § 922(g)(1), or whether courts must apply Bruen’s historical

analysis to determine if the specific predicate offense historically

justified disarmament, as required by the Fifth Circuit’s decision in

United States v. Diaz?

2. Is the lifetime ban on possession of firearms by all felons, codified at

18 U.S.C. § 922(g)(1), plainly unconstitutional on its face under

Bruen because it is permanent and applies to all persons convicted

of felonies?

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

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

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

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

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

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

STATEMENT OF THE CASE....................................................................................... 7

REASONS FOR GRANTING THE WRIT ................................................................... 9

The Fifth Circuit Erred in Resolving Zinnerman’s As-Applied Challenge

by Relying on His Probation Status Rather Than Conducting the

Required Historical Analysis of His Specific Predicate Offense................ 10

The Fifth Circuit Avoided the Required Historical Analysis by

Creating an Unfounded “Supervision Exception” to the Second

Amendment ....................................................................................... 10

The Fifth Circuit in Giglio improperly bypassed Bruen’s

requirements through interest-balancing disguised as

categorical rules ........................................................................... 10

Giglio’s historical analysis relies on inapposite founding-era

The supervision-status approach abandons the specific

predicate offense analysis that Diaz requires ............................ 13

II.

III.

forfeiture laws .............................................................................. 11

The Approach Below Violates Basic Principles of Constitutional

Adjudication ...................................................................................... 14

Williams v. Illinois prohibits defending statutes based on

The supervision approach reintroduces the interest-balancing

that Bruen rejected ...................................................................... 15

alternative regulatory approaches .............................................. 14

Section 922(g)(1) Is Facially Unconstitutional Under Bruen Because the

Government Cannot Demonstrate a Historical Tradition Supporting a

Categorical Lifetime Ban on Firearm Possession for All Felons ............... 15

Bruen Represented a Fundamental Shift in Second Amendment

Under the New Framework, Section 922(g)(1) Violates the Second

Amendment Because Firearm Possession Is Protected by the

Amendment’s Plain Text, and the Government Cannot Show a

Historical Tradition of Categorically Disarming Felons ................. 18

Analysis ............................................................................................. 15

The text of the Second Amendment covers Zinnerman’s

conduct, and he is among “the people” the Amendment

protects ......................................................................................... 18

There is no relevantly similar historical regulation that bans

firearm possession for life ........................................................... 20

The Question Presented Is Exceptionally Important, and This Case Is

an Effective Vehicle for This Court to Address It ..................................... 27

The Courts of Appeals Are Divided Over How to Address Second

Amendment Challenges to § 922(g)(1) ............................................. 27

The Questions Affect Millions of Americans.................................... 30

This Case Provides a Clean Vehicle for Resolution ......................... 31

The Issues Warrant Immediate Review .......................................... 32

CONCLUSION ............................................................................................................ 32

APPENDIX INDEX

Fifth Circuit opinion, April 2, 2025 ...................................................................App. 001

District court judgment, May 14, 2024 .............................................................App. 009

TABLE OF AUTHORITIES

CASES

Binderup v. Att’y Gen. of the U.S., 836 F.3d 336 (3d Cir. 2016) (en banc) ............... 24

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

Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017) ...................................................... 19

Folajtar v. Att’y Gen. of the United States, 980 F.3d 897 (3d Cir. 2020) .................. 24

Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) ............................................................. 16

Jennings v. State, 5 Tex. Ct. App. 298 (1878) ............................................................ 26

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) ........................................................ 23-24

McDonald v. City of Chicago, 561 U.S. 742 (2010) ................................................ 16-17

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

700 F.3d 185 (5th Cir. 2012) ........................................................................ 16-17

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

Range v. Att’y Gen. United States, 124 F.4th 218 (3d Cir. 2024) (en banc)......... 29-30

United States v. Chester, 628 F.3d 673 (5th Cir. 2010) .................................. 16-17, 24

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) ....................................... 9, 13, 29

United States v. Duarte, 137 F.4th 743 (9th Cir. 2025) (en banc)............................. 29

United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025).......................................... 8-13

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024) ......................................... 28

United States v. Lara, 815 F.3d 605 (9th Cir. 2016) .................................................. 19

United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020) ..................................... 16-17

United States v. Rahimi, 602 U.S. 680 (2024) .....................................................passim

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).......................................... 19

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)..................................... 27-28

Williams v. Illinois, 399 U.S. 235 (1970) ................................................................ 9, 14

STATUTES

U.S. Const. Amend. I ................................................................................................... 19

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

U.S. Const. Amend. IV................................................................................................. 19

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

1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688) ................................... 23

Act of Apr. 5, 1790, ch. 1516, § 1, 13 Statutes at Large of Pennsylvania (James T.

Mitchell & Henry Flanders eds., 1908) ....................................................... 11-12

Act of Oct. 28, 1786, 1 Laws of the Commonwealth of Massachusetts (J.T.

Buckingham ed., 1807) ..................................................................................... 12

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

(1893) ................................................................................................................. 25

OTHER

Adam Winkler, Heller’s Catch-22, 56 U.C.L.A. L. Rev. 1551 (2009) .................... 21-22

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

Policy 695 (2009) ............................................................................................... 23

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

Persons from Possessing Arms, 20 Wyo. L. Rev. 249 (2020) ...................... 23-25

Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep

Arms in Early America: The Legal Context of the Second Amendment, 25

Law & Hist. Rev. 139 (2007)............................................................................. 24

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

Individual Right, 28 OP. O.L.C. 126 (2004) ................................................ 25-26

OPINIONS BELOW

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

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

Zinnerman, No. 24-30310, 2025 WL 984605 (5th Cir. Apr. 2, 2025) (unpublished) ,

and is set forth at App. 001.

JURISDICTION

The judgment of the court of appeals was entered on April 2, 2025. The

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

STATUTORY PROVISIONS INVOLVED

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

(g) It shall be unlawful for any person—

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

imprisonment for a term exceeding one year;

***

to ship or transport in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.

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

A well regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not be infringed.

STATEMENT OF THE CASE

Joseph Anthony Zinnerman, Jr. was convicted of possessing a firearm as a

felon in violation of 18 U.S.C. § 922(g)(1). His predicate felony convictions were for

possession of oxycodone, distribution of cocaine, and attempted possession of a

firearm by a convicted felon—all non-violent drug offenses and one felon-inpossession charge. ROA.139-40. When he possessed the firearm in this case,

Zinnerman was on state parole for one of his predicate convictions.

In April 2023, Ouachita Parish sheriff's deputies attempted to conduct a traffic

stop after observing Zinnerman fail to use his turn signal. Instead of stopping,

Zinnerman attempted to flee from a traffic stop and was apprehended with a handgun

and a small amount of cocaine and marijuana. ROA.126.

Zinnerman challenged his § 922(g)(1) conviction below on both facial and asapplied grounds under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1

(2022). ROA.22-29. The district court denied his motion to dismiss, and Zinnerman

preserved his constitutional challenge through his conditional guilty plea. ROA.119.

On appeal, Zinnerman argued that § 922(g)(1) violates the Second Amendment both

facially and as applied to him because the government failed to proffer founding-era

analogues that are “distinctly similar” to his underlying felony convictions.

Zinnerman explained that he is a non-violent felon who only possessed firearms for

personal protection.

The Fifth Circuit panel affirmed Zinnerman’s conviction in an unpublished per

curiam opinion. App. 001. However, rather than addressing Zinnerman’s actual

constitutional challenge to § 922(g)(1)—a statute that prohibited him from possessing

firearms solely because he had previously been convicted of felonies—the court based

its decision on the fact that Zinnerman was not permitted to possess a firearm while

on parole under United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025). App. 006-007.

Having found that Zinnerman’s irrelevant parole status defeated his as-applied

challenge to his § 922(g)(1) conviction, the panel also summarily rejected his facial

challenge under United States v. Diaz, 116 F.4th 458 (5th Cir. 2024). App. 002-003.

REASONS FOR GRANTING THE WRIT

This case presents two fundamental constitutional questions that demand this

Court's immediate attention. First, the Fifth Circuit committed a basic error in

constitutional adjudication by refusing to analyze the challenged statute on its own

terms. Instead of conducting the rigorous historical analysis that Bruen requires for

Zinnerman’s specific predicate offenses—possession of oxycodone, distribution of

cocaine, and attempted felon-in-possession—the court created an unfounded

categorical exception based solely on his parole status. This approach violates

established principles dating back to Williams v. Illinois, which forbid courts from

defending a statute by pointing to entirely different grounds for regulation that are

not embodied in the challenged law itself. Section 922(g)(1) prohibits firearm

possession based on prior felony conviction, not current supervision status, yet the

Fifth Circuit allowed the government to avoid defending the actual statute by arguing

Zinnerman could theoretically be disarmed for an unrelated reason.

Second, the decision below highlights the fundamental constitutional infirmity

of Section 922(g)(1)’s categorical lifetime ban on all felons. The government cannot

meet its burden under Bruen to demonstrate historical tradition supporting such a

sweeping prohibition because no such tradition exists—neither the federal

government nor any state categorically disarmed all felons until the 20th century,

nearly two centuries after the Second Amendment’s ratification. The circuit split on

these issues has left millions of Americans with inconsistent constitutional

protections depending solely on their geographic location. Zinnerman’s case presents

both questions cleanly: his non-violent drug offenses exemplify convictions that

historically would not have justified permanent disarmament, while the court’s

reliance on his parole status rather than the challenged statute itself illustrates the

methodological error plaguing post-Bruen jurisprudence.

The Fifth Circuit Erred in Resolving Zinnerman’s As-Applied Challenge by

Relying on His Probation Status Rather Than Conducting the Required

Historical Analysis of His Specific Predicate Offense

The Fifth Circuit Avoided the Required Historical Analysis by Creating

an Unfounded “Supervision Exception” to the Second Amendment

The decision below represents a fundamental departure from established

constitutional methodology. Rather than conducting the rigorous historical analysis

that Bruen requires for the specific predicate offense that triggered Zinnerman’s §

922(g)(1) prohibition— possession of oxycodone, distribution of cocaine, and

attempted felon-in-possession—the panel created a categorical exception based solely

on his probation status. This approach contradicts both this Court’s precedents and

Bruen’s historical methodology.

The Fifth Circuit in Giglio improperly bypassed Bruen’s

requirements through interest-balancing disguised as categorical

rules

The Fifth Circuit’s reliance on United States v. Giglio, 126 F.4th 1039 (5th Cir.

2025), exemplifies the methodological error that has infected post-Bruen

jurisprudence. Giglio purported to conduct historical analysis but actually engaged

in the exact type of interest-balancing that Bruen forbids—reasoning that the

government’s interest in monitoring and controlling individuals under community

supervision justifies restricting their Second Amendment rights 126 F.4th at 1045.

Giglio’s analysis fails at every level. The court concluded that “Early American

history reveals that individuals could be disarmed while carrying out such sentences”

and that this tradition justified disarming individuals on supervised release. Id. at

1045. But this sweeping assertion lacks the specific historical analysis that Bruen

demands. As this Court has emphasized, “[w]hy and how the regulation burdens the

right are central to this inquiry.” United States v. Rahimi, 602 U.S. 680, 692 (2024).

The government must demonstrate not just that some historical disarmament

occurred, but that it occurred for reasons analogous to the specific modern prohibition

at issue.

Giglio’s historical analysis relies on inapposite founding-era

forfeiture laws

Giglio’s historical foundation crumbles under scrutiny. The court relied

primarily on founding-er a forfeiture laws, particularly Pennsylvania’s 1790 statute

that required individuals convicted of “robbery, burglary, sodomy or buggery” to

“forfeit to the commonwealth all . . . goods and chattels” and “be sentenced to undergo

a servitude of any term . . . not exceeding ten years.” Act of Apr. 5, 1790, ch. 1516, §

1, 13 Statutes at Large of Pennsylvania, at 511–12 (James T. Mitchell & Henry

Flanders eds., 1908).

These forfeiture laws are fundamentally different from § 922(g)(1) in both their

“why” and “how”—the very factors Rahimi identified as central to the constitutional

inquiry. 602 U.S. at 692.

The “Why” Problem: The forfeiture laws targeted specific violent crimes that

directly threatened public safety. The 1790 Pennsylvania law applied only to robbery,

burglary, and sodomy—serious violent offenses. Similarly, the Massachusetts law

cited in Giglio applied to “anti-riot laws” involving persons who “unlawfully,

routously, riotously and tumultuously continue together” to prevent government

officers from fulfilling their duties. Act of Oct. 28, 1786, 1 Laws of the Commonwealth

of Massachusetts, at 346, 347 (J.T. Buckingham ed., 1807). These laws responded to

immediate public safety threats, not the broad category of all felonies that § 922(g)(1)

encompasses.

The “How” Problem: The forfeiture laws imposed fundamentally different

burdens than modern community supervision. Historical sentences typically involved

physical custody or banishment from the community entirely. For example, the

Pennsylvania law imposed “servitude” not probation or supervision. Act of Apr. 5,

1790, ch. 1516, § 1, 13 Statutes at Large of Pennsylvania, at 511, 511–12 (James T.

Mitchell & Henry Flanders eds., 1908). The Massachusetts law imposed

“imprisonment” not probation or supervision. Act of Oct. 28, 1786, 1 Laws of the

Commonwealth of Massachusetts, at 346, 347 (J.T. Buckingham ed., 1807).

Modern community supervision operates entirely differently. Individuals on

probation or supervised release live freely in their communities, work regular jobs,

support families, and exercise most constitutional rights while subject to limited

conditions. The founding-era concept of disarming someone physically confined or

banished bears little resemblance to disarming someone who otherwise lives as a free

member of the community.

This difference in “how” the burden operates is constitutionally significant.

When the historical precedent involved complete state control over an individual’s

movements and circumstances, disarmament was merely one aspect of total

deprivation of liberty. But when someone lives freely in the community—where the

need for self-defense is greatest—the burden of disarmament is qualitatively

different and more severe than anything the historical precedent contemplated.

The supervision-status approach abandons the specific predicate

offense analysis that Diaz requires

Giglio’s most fundamental error lies in abandoning the predicate offense

analysis that Diaz established. In United States v. Diaz, the Fifth Circuit held that

courts must examine whether the specific underlying felony conviction historically

justified disarmament. 116 F.4th 458, 467 (5th Cir. 2024). Diaz expressly rejected

attempts to avoid this analysis, noting that a § 922(g)(1) charge “must . . . rely on

previous history,” not concurrent conduct. Id.

Giglio effectively overruled Diaz sub silentio by holding that supervision status

alone can justify disarmament regardless of the predicate offense. This creates an

arbitrary system where defendants with identical predicate offenses face different

constitutional protections based solely on whether they are under supervision. Such

a result undermines the value-neutral historical analysis that Bruen requires.

The Approach Below Violates Basic Principles of Constitutional

Adjudication

The Fifth Circuit’s methodology violates fundamental principles governing

constitutional challenges to criminal statutes. Courts cannot uphold a conviction

under one law by pointing to entirely different grounds for regulation that are not

embodied in the challenged statute.

Williams v. Illinois prohibits defending statutes based on

alternative regulatory approaches

This Court’s decision in Williams v. Illinois directly condemns the approach

taken below. 399 U.S. 235 (1970). In Williams, the state argued that its statute was

“not constitutionally infirm simply because the legislature could have achieved the

same result by some other means.” Id. at 238-39. This Court rejected that argument,

explaining that the state’s authority to use alternative regulatory approaches “does

not resolve the [constitutional] issue” actually presented by the challenged law. Id. at

239. The Court then reached the merit of the constitutional challenge to the statute.

Zinnerman’s probation status is precisely the kind of alternative means

constitutional avoidance that Williams rejected. Section 922(g)(1) prohibits

possession based on prior felony conviction, not current supervision status. The

statute’s text makes this clear: it applies to one “who has been convicted in any court

of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. §

922(g)(1). Current supervision status is irrelevant to this past-tense conviction-based

prohibition.

The supervision approach reintroduces the interest-balancing

that Bruen rejected

Bruen explicitly rejected “means-end scrutiny” in favor of text-and-history

analysis specifically to avoid an “interest-balancing inquiry” that requires deciding

on “a case-by-case basis whether the right is really worth insisting upon.” 597 U.S. at

22-23 (emphasis in original). The supervision exception recreates exactly this

prohibited analysis by requiring courts to assess whether governmental monitoring

interests justify restricting Second Amendment rights.

As Justice Kavanaugh emphasized in Rahimi, this represents “a value-laden

and political task that is usually reserved for the political branches.” 602 U.S. at 73233 (Kavanaugh, J., concurring). When courts abandon analysis of the challenged

regulation’s historical foundations and instead evaluate collateral circumstances,

they engage in precisely the “value-laden” judgments about constitutional worthiness

that Bruen sought to eliminate.

II.

Section 922(g)(1) Is Facially Unconstitutional Under Bruen Because the

Government Cannot Demonstrate a Historical Tradition Supporting a

Categorical Lifetime Ban on Firearm Possession for All Felons

Bruen Represented a Fundamental Shift in Second Amendment

Analysis

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

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

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

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

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

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

the central component of the Second Amendment right”).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

700 F.3d at 194).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Under the New Framework, Section 922(g)(1) Violates the Second

Amendment Because Firearm Possession Is Protected by the

Amendment’s Plain Text, and the Government Cannot Show a

Historical Tradition of Categorically Disarming Felons

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

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

otherwise.

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

and he is among “the people” the Amendment protects

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

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

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

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

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

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

unconstitutional under Bruen. Id. at 24.

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

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

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

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

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

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

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

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

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

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

Comparison to other constitutional amendments confirms this view. As Heller

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

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

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

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

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

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

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

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

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

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

by the Second Amendment, too.

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

subsection of § 922(g) last term in United States v. Rahimi, 602 U.S. 680 (2024). The

Court analyzed historical laws dealing with dangerous persons to find that § 922(g)(8)

was consistent with historical tradition and therefore constitutional. Id. at 693-700.

But the Court never suggested for a moment that Mr. Rahimi was not one of “the

people” protected by the Second Amendment. Accordingly, Zinnerman is among “the

people” to whom the Second Amendment applies.

There is no relevantly similar historical regulation that bans

firearm possession for life

Bruen provided guidance on conducting historical analysis in the hunt for

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

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

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

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

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

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

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

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

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

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

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

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

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

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

circumstances.’” Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29). In doing so,

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

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

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

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

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

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

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

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

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

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

on the right cannot survive.

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

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

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

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

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

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

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

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

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

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

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

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

historical tradition. Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29).

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

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

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

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

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

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

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

when it contradicts earlier evidence.”).

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

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

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

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

The government may argue that, historically, some jurisdictions sometimes

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

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

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

historical regulations almost always allowed people deemed violent to still possess

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

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

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

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

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

at 629.

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

firearm. See Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting);

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

Policy 695, 717 (2009); Joseph G.S. Greenlee, The Historical Justification for

Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 260

(2020). To the extent that England sought to disarm individuals, those regulations

usually required a more culpable mental state and made exceptions for self-defense,

both features absent from Section 922(g)(1). Rahimi discusses at length the surety

laws and laws against affray or going armed against the king’s subjects. 602 U.S. at

693-98.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of violence to the state.

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

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

seminal Massachusetts Bay colony once disarmed supporters of a banished

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

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

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

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

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

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

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

Massachusetts 1786–87, at 178 (1893).

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

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

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

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

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

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

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

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

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

rejected as inconsistent with the right to bear arms.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

muster because there were historical analogues temporarily disarming those proven

to be presently violent. 602 U.S. at 693. The restraining order subsection of § 922(g)

passed constitutional muster because there is an individualized finding of

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

only as long as the restraining order does. Id. at 686-89.

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

inquiry.” Id. at 692. Section 922(g)(1) contains a lifetime prohibition on possession of

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

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

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

III.

The Question Presented Is Exceptionally Important, and This Case Is an

Effective Vehicle for This Court to Address It

The Courts of Appeals Are Divided Over How to Address Second

Amendment Challenges to § 922(g)(1)

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

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

Eighth and Ninth Circuits have concluded that the statute does not violate the

Second Amendment and have foreclosed future as-applied challenges. The Fifth

Circuit has also rejected facial Second Amendment challenges, like in this case, but

has adopted a case by case approach to as-applied challenges looking only at the

disqualifying felony conviction. The Sixth Circuit in contrast has adopted a

dangerousness test for as-applied challenges. Meanwhile, the Third Circuit has found

Section 922(g)(1) unconstitutional as applied to specific defendants. These differing

opinions have generated opposite outcomes, with Second Amendment claims entirely

foreclosed in certain jurisdictions and not in others.

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

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

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

concluded that governments have traditionally had authority to disarm groups

deemed dangerous, provided that individuals within those groups have an

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

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

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

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

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

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

whether their offenses fall into historically recognized categories of dangerous crimes

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

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

disarmament, it concluded that Williams’ violent criminal history clearly

demonstrated he was dangerous and therefore could be constitutionally prohibited

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

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

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

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

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

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

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

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

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

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

that individual determinations of dangerousness were not historically required to

justify such categorical prohibitions. Id. at 1125-29. Similarly, the en banc Ninth

Circuit recently held that Section 922(g)(1) is constitutional, even as applied to a nonviolent felons. United States v. Duarte, 137 F.4th 743 (9th Cir. 2025) (en banc).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The en banc Third Circuit, in contrast, applied Bruen’s text-and-history test

and found Section 922(g)(1) unconstitutional as applied to a person whose prior

conviction for making false statements in relation to food stamps had exposed him to

more than a year in prison. Range v. Att’y Gen. United States, 124 F.4th 218 (3d Cir.

2024) (en banc). First, the court rejected the government’s contention that a person’s

past conviction for an offense punishable by over one year operates to remove him

from “the people” to whom the right to keep and bear arms is vested. Id. at 226-28.

Then, upon examination of the relevant historical evidence, the court held that the

government had failed in its attempt to demonstrate a broad tradition of American

laws imposing anything near a permanent ban on firearm possession on account of

past misdeeds. Id. at 228-32.

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

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

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

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

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

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

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

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

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

inevitable return to the Court’s docket.

The Questions Affect Millions of Americans

Both the methodological approach for as-applied challenges and the facial

constitutionality of § 922(g)(1) affect millions of Americans with felony convictions.

The circuit split on these fundamental constitutional questions has continued to

develop since Bruen, with different circuits applying inconsistent approaches to

identical constitutional challenges.

Zinnerman’s case perfectly illustrates both problems. His predicate convictions

were for non-violent drug offenses and one felon-in-possession charge that did not

warrant imprisonment—reflecting judicial determinations that his offenses did not

require confinement or pose dangers necessitating prolonged state control. Yet the

Fifth Circuit stripped away his Second Amendment rights not because of any

historical tradition of disarming individuals with similar offenses, but because of his

collateral parole status. This demonstrates both the methodological error in avoiding

the historical analysis of the challenged statute and the broader constitutional

infirmity of a lifetime ban on all felons regardless of their specific offenses.

This Case Provides a Clean Vehicle for Resolution

Zinnerman’s case presents both constitutional questions without complicating

factors that might obscure the central issues. His predicate convictions were for

possession of oxycodone, distribution of cocaine, and attempted felon-in-possession—

non-violent drug offenses and one firearms offense. He possessed firearms for

personal protection during the incident in question. The government prosecuted

Zinnerman under § 922(g)(1) based solely on his prior felony convictions.

The Fifth Circuit’s reliance on Zinnerman’s probation status rather than

analyzing whether his specific predicate offense historically justified disarmament

illustrates the methodological concern. Additionally, Zinnerman’s case provides an

opportunity to address the facial constitutionality of § 922(g)(1)'s categorical lifetime

ban, as his non-violent predicate offenses exemplifies the type of conviction that

historically would not have justified permanent disarmament.

The Issues Warrant Immediate Review

The circuit splits on both the methodological question and the facial

constitutionality question have continued to develop since Bruen. Different circuits

apply inconsistent approaches to identical constitutional challenges, creating varied

protection that raises concerns about equal justice under law.

These questions go to the heart of how courts should analyze constitutional

challenges to criminal statutes. If the government can defend any conviction by

pointing to unrelated characteristics that might theoretically justify similar

restrictions, and if a statute can categorically strip constitutional rights from millions

of Americans without historical justification, then constitutional protections become

meaningless.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted this July 1, 2025,

REBECCA L. HUDSMITH

Federal Public Defender

BY:

s/ Dustin C. Talbot

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

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