Petition for Writ of Certiorari — Antonio Robledo Tovar, Petitioner v. United States

NO. _________

In the Supreme Court of the United States

________________

ANTONIO ROBLEDO TOVAR,

Petitioner,

v.

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

________________

J. Matthew Wright

Counsel of Record

FEDERAL PUBLIC DEFENDER’S

OFFICE

600 South Tyler Street

Suite 2300

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org

Counsel for Petitioner

August 11, 2025

QUESTIONS PRESENTED

1.

Federal law bans the possession of firearms by anyone who has ever been

convicted of a crime punishable by more than one year of imprisonment. 18 U.S.C.

§ 922(g)(1). How should courts decide whether an individual prosecution or conviction

under that statute is consistent with the Second Amendment to the Constitution?

2.

Under the prevailing interpretation of the nexus-with-commerce element of

the federal possession ban, a former felon possesses “in or affecting commerce” a

firearm if the firearm was made in another state. Does Congress have the

constitutional authority to enact such a law?

DIRECTLY RELATED PROCEEDINGS

United States v. Tovar, No. 3:20-cr-633 (N.D. Tex. July 29, 2024)

United States v. Tovar, No. 24-10664 (5th Cir. May 12, 2025)

TABLE OF CONTENTS

Questions Presented .................................................................................................... ii

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

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

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

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

Constitutional and statutory Provisions Involved ..................................................... 2

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

Reasons for Granting the Petition .............................................................................. 3

ii

I.

THE COURT SHOULD GRANT THE PETITION TO

EXPLAIN WHETHER AND WHEN § 922(G)(1) COMPORTS

WITH THE SECOND AMENDMENT. ............................................................... 3

A. Before Bruen, courts largely deferred to Congress’s hasty

judgments about felons and firearms. .......................................................... 3

B. Under the Bruen methodology, § 922(g)(1) is

presumptively unconstitutional. ................................................................... 5

C. Lower courts have made irreconcilable (and

unpersuasive) attempts to reconcile Heller’s assurance

that felon bans are constitutional with Bruen’s text-andtradition test. ................................................................................................. 6

II. THE COURT SHOULD GRANT THE PETITION AND

ADDRESS WHETHER A FIREARM’S PRIOR MOVEMENT

ACROSS STATE LINES MEETS THE MINIMUM

STATUTORY AND CONSTITUTIONAL REQUIREMENTS

FOR PROVING A NEXUS WITH COMMERCE. ............................................... 7

Conclusion .................................................................................................................. 12

Petition Appendix

Appendix A

Fifth Circuit Opinion ................................................................................................. 1a

Appendix B

Order Denying Motion to Dismiss ............................................................................ 3a

Appendix C

Superseding Indictment ............................................................................................ 4a

Appendix D

Motion to Dismiss .................................................................................................... 11a

Appendix E

U.S. Response to Motion to Dismiss ....................................................................... 21a

iii

TABLE OF AUTHORITIES

Cases

Alderman v. United States,

562 U.S. 1163 (2011) .............................................................................................. 9

Barrett v. United States,

423 U.S. 212 (1976) .............................................................................................. 10

District Columbia v. Heller,

554 U.S. 570 (2008) ........................................................................................ 4, 6, 7

Jacobellis v. Ohio,

378 U.S. 184 (1964) ................................................................................................ 7

Lewis v. United States,

445 U.S. 55 (1980) .................................................................................................. 4

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

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

Rehaif v. United States,

588 U.S. 225 (2019) ................................................................................................ 9

Scarborough v. United States,

431 U.S. 563 (1977) .................................................................................... 9, 10, 11

United States v. Bass,

404 U.S. 336 (1971) ................................................................................................ 4

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024), cert. denied, No. 24-6625, 2025

WL 1727419 (U.S. June 23, 2025) ......................................................................... 6

United States v. Emerson,

270 F.3d 203 (5th Cir. 2001) .................................................................................. 4

United States v. Graves,

554 F.2d 65 (3d Cir. 1977) ...................................................................................... 4

United States v. Jackson,

110 F.4th 1120 (8th Cir. 2024), reh’g denied, 121 F.4th 656,

cert. denied, No. 24-6517, 2025 WL 1426707 (U.S. May 19,

2025)........................................................................................................................ 7

iv

United States v. Kimble,

142 F.4th 308 (5th Cir. 2025) ................................................................................. 6

United States v. Lopez,

514 U.S. 549 (1995) ............................................................................................ 8, 9

United States v. Miller,

307 U.S. 174 (1939) ................................................................................................ 4

United States v. Morrison,

529 U.S. 598 (2000) .............................................................................................. 11

United States v. Seekins,

52 F.4th 988 (5th Cir. 2022) ................................................................................... 9

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) ............................................................................. 6, 7

Constitutional Provisions

U.S. Const., art. I, § 8 .............................................................................................. 2, 8

United States Constitution ......................................................................................... 2

United States Constitution Second Amendment.................................... 2, 3, 4, 5, 6, 8

Statutes

18 U.S.C. § 922(g) ............................................................................................ 2, 10, 11

18 U.S.C. § 922(g)(1) .............................................................................. 3, 5, 6, 7, 9, 12

18 U.S.C. § 925(c) ......................................................................................................... 7

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

GFSZA, § 922(g)’s................................................................................................... 8, 10

Gun-Free School Zones Act ......................................................................................... 8

Pub. L. 75-785, 52 Stat. 1250 (1938) ........................................................................... 3

Pub. L. 87-342, 75 Stat. 757 (1961) ............................................................................. 3

Rules

S. Ct. R. 13.1 ................................................................................................................ 1

v

Other Authorities

C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32

Harv. J.L. & Pub. Pol’y 695, 708 (2009) ................................................................ 5

Carlton F.W. Larson, Four Exceptions in Search of a Theory:

District of Columbia v. Heller and Judicial Ipse Dixit, 60

Hastings L.J. 1371 (2009) ...................................................................................... 5

Emily Tiry et al., Prosecution of Federal Firearms Offenses 200016, Tables 1 & 2 (Urban Institute Oct. 2021) ...................................................... 11

Investigation, Active Records in the NICS Indices (updated April

30, 2024) ................................................................................................................ 11

Pet. for Certiorari, United States v. Hemani,

No. 24-1234 (filed June 2, 2025) ............................................................................ 7

William Rawle, A View of the Constitution of the United States

(2d ed. 1829)............................................................................................................ 8

vi

In the Supreme Court of the United States

_________________________

No. ______

ANTONIO ROBLEDO TOVAR,

v.

Petitioner,

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

__________________________________

Petitioner Antonio Robledo Tovar asks the Court to issue a writ of certiorari to

review the judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion below (App., infra, 1a–2a) was not selected for publication. It can

be found at 2025 WL 1369357.

JURISDICTION

The Fifth Circuit entered its judgment on May 12, 2025. This petition is timely

under S. Ct. R. 13.1. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Article I, Section 8, of the United States Constitution provides, in pertinent

part:

The Congress shall have Power … To regulate Commerce with

foreign Nations, and among the several States, and with the

Indian Tribes.

The Second Amendment to the United States Constitution provides:

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

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

infringed.

Title 18 of the United States Code, Section 922(g) provides, in pertinent part:

(g) It shall be unlawful for any person—

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

imprisonment for a term exceeding one year …

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

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

receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.

STATEMENT

A federal grand jury indicted Petitioner Antonio Robledo Tovar for five

offenses, including two instances of possessing a firearm after a felony conviction.

App., infra, 1a–2a. Petitioner moved to dismiss those counts, arguing that the

possession ban exceeded Congress’s authority under the Commerce Clause and the

Second Amendment. App., infra, 11a–20a. The district court denied his motion to

dismiss. App., infra, 3a. Petitioner pleaded guilty to the indictment without a plea

agreement.

2

On appeal, Petitioner renewed both contentions. The Fifth Circuit first held

that his Commerce Clause challenge was foreclosed. App., infra, 1a. On the Second

Amendment, the court first decided that Petitioner forfeited his “as-applied” Second

Amendment arguments. App., infra, 2a. Then, the court held it “unclear” whether

§ 922(g)(1) could constitutionally be applied “based on Texas convictions for

possession of controlled substances.” App., infra, 2a. The court therefore affirmed the

conviction.

REASONS FOR GRANTING THE PETITION

I.

THE COURT SHOULD GRANT THE PETITION TO EXPLAIN

WHETHER AND WHEN § 922(G)(1) COMPORTS WITH THE

SECOND AMENDMENT.

For many years, courts assumed that 18 U.S.C. § 922(g)(1) was constitutional

in all its applications—or at least the vast majority of applications. After New York

State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), that unison devolved into

cacophony. Until this Court steps in to address the issue, lower courts will continue

to flounder.

A. Before Bruen, courts largely deferred to Congress’s hasty

judgments about felons and firearms.

The federal ban on possession of firearms by felons is a product of the late 20th

Century. In 1938, Congress banned interstate firearm transactions by people

convicted of a few violent felonies. Pub. L. 75-785, 52 Stat. 1250 (1938). Congress

expanded the transaction to cover all felons in 1961. Pub. L. 87-342, 75 Stat. 757

(1961). The possession ban first appeared as “a last-minute Senate amendment” to a

sprawling 1968 crime bill: “The Amendment was hastily passed, with little

3

discussion, no hearings and no report.” United States v. Bass, 404 U.S. 336, 344

(1971).

Despite its relative youth, the possession ban has avoided serious

constitutional scrutiny. Throughout the 20th century, courts “found no conflict

between federal gun laws and the Second Amendment, narrowly construing the latter

to guarantee the right to bear arms as a member of a militia.” United States v. Graves,

554 F.2d 65, 66 n.2 (3d Cir. 1977) (discussing United States v. Miller, 307 U.S. 174,

178–82 (1939), and its progeny). In 1980, this Court went so far as to assert that felon

bans “are neither based upon constitutionally suspect criteria, nor do they trench

upon any constitutionally protected liberties.” Lewis v. United States, 445 U.S. 55, 65

(1980) (citing Miller).

Even as attorneys, scholars, and courts revived the individual rights model of

the Second Amendment, most were willing to look the other way when it came to

felon bans. See, e.g., United States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001) (“[I]t

is clear that felons, infants and those of unsound mind may be prohibited from

possessing firearms.”). This Court’s opinion in District Columbia v. Heller, 554 U.S.

570 (2008), embraced this view in dictum: “Although we do not undertake an

exhaustive historical analysis today of the full scope of the Second Amendment,

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on

the possession of firearms by felons and the mentally ill.” Id. at 626.

4

B. Under the Bruen methodology, § 922(g)(1) is presumptively

unconstitutional.

In Bruen, this Court chastised lower courts for their knee-jerk deference in the

context of firearm statutes: “while that judicial deference to legislative interest

balancing is understandable—and, elsewhere, appropriate—it is not deference that

the Constitution demands here.” 597 U.S. at 26. Instead of deferring to a legislature’s

“interest balancing,” Bruen propounded a new test focused on the Second

Amendment’s text and America’s historical tradition of firearm regulation: When the

“plain text” of the Second Amendment covers an individual’s conduct, “the

Constitution presumptively protects that conduct.” Id. at 17. To justify a regulation

that burdens presumptively protected conduct, “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.

Section 922(g)(1) bans the very same conduct protected by the plain text of the

Second Amendment—the keeping of arms. And before the 20th Century, there was

no comparable tradition of banning millions of Americans from even possessing

firearms based on Congress’s say-so. “Though recognizing the hazard of trying to

prove a negative, one can with a good degree of confidence say that bans on convicts

possessing firearms were unknown before World War I.” C. Kevin Marshall, Why

Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 708 (2009); see

also Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia

v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374 (2009) (“Indeed, so far

5

as I can determine, no colonial or state law in eighteenth-century America formally

restricted the ability of felons to own firearms.”).

C. Lower courts have made irreconcilable (and unpersuasive)

attempts to reconcile Heller’s assurance that felon bans are

constitutional with Bruen’s text-and-tradition test.

In Heller, this Court promised 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.” 554 U.S. at 635. Without that guidance, lower courts are

struggling. They remain largely deferential to Congress’s judgment. They have

adopted various irreconcilable rules for deciding when Congress’s preference for

disarming felons exceeds its constitutional authority.

According to the Fifth Circuit, each § 922(g)(1) prosecution should be evaluated

based on the “prior convictions that are ‘punishable by imprisonment for a term

exceeding one year.’” United States v. Diaz, 116 F.4th 458, 467 (5th Cir. 2024), cert.

denied, No. 24-6625, 2025 WL 1727419 (U.S. June 23, 2025); see also United States v.

Kimble, 142 F.4th 308, 315 (5th Cir. 2025) (quoting Diaz, 116 F.4th at 469) (“Although

Congress can label certain classes of people—such as felons—dangerous, courts

cannot grant those determinations blanket deference because the ‘shifting

benchmark’ of felony status ‘should not define the limits of the Second Amendment.’”)

According to the Sixth Circuit, a former felon bears the burden of proving “that

he is not dangerous,” and a court must evaluate dangerousness “considering the

individual’s entire criminal record—not just the predicate offense for purposes of

§ 922(g)(1).” United States v. Williams, 113 F.4th 637, 657–58 (6th Cir. 2024).

6

Channeling Justice Stewart’s concurring opinion in Jacobellis v. Ohio, 378 U.S. 184,

197 (1964), the Sixth Circuit expressed confidence in district courts’ ability to assess

which predicate offenses are dangerous enough to warrant lifelong disarmament and

which are not. Williams, 113 F.4th at 660 (“We are therefore confident that the

dangerousness inquiry is workable for resolving as-applied challenges to

§ 922(g)(1).”).

The Eighth Circuit disagreed: “we conclude that there is no need for felony-byfelony litigation regarding the constitutionality of § 922(g)(1).” United States v.

Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024), reh’g denied, 121 F.4th 656, cert.

denied, No. 24-6517, 2025 WL 1426707 (U.S. May 19, 2025).

None of these approaches is entirely satisfactory. Perhaps recognizing this,

Respondent recently decided to revive the relief-from-disability procedure under 18

U.S.C. § 925(c). See generally Pet. for Certiorari 21, United States v. Hemani, No. 241234 (filed June 2, 2025). That mechanism was unavailable to Petitioner when he

possessed the firearms at issue here.

II. THE COURT SHOULD GRANT THE PETITION AND ADDRESS

WHETHER A FIREARM’S PRIOR MOVEMENT ACROSS STATE

LINES

MEETS

THE

MINIMUM

STATUTORY

AND

CONSTITUTIONAL REQUIREMENTS FOR PROVING A NEXUS

WITH COMMERCE.

When the Founders decided to form a stronger national government, they had

to overcome objections that Congress would eventually utilize its power to disarm

disfavored citizens. Federalists believed that the enumeration of limited and specific

powers would keep Congress from disarming anyone. Heller, 554 U.S. at 599.

7

Antifederalists worried that those limits might not hold, and the Government would

later disarm citizens in favor of a standing army or organized militia. The Second

Amendment was designed to allay those fears. Id. at 598–600. After ratification of

the Bill of Rights, Americans understood that their right to keep arms had twofold

protection: “No clause in the Constitution could by any rule of construction be

conceived to give to congress a power to disarm the people. … But if in any blind

pursuit of inordinate power,” Congress did attempt it, “this amendment may be

appealed to as a restraint.” William Rawle, A View of the Constitution of the United

States 125–26 (2d ed. 1829). A nationwide Congressional ban on keeping arms would

have scandalized the founding generation. Nothing like it existed during the first 180

years of our nation’s existence.

One of Congress’s “few and defined,” powers is the power “To regulate

Commerce with foreign Nations, and among the several States, and with the Indian

Tribes.” U.S. Const., art. I, § 8. In United States v. Lopez, 514 U.S. 549 (1995), this

Court held that the commerce power does not authorize regulation of a purely local,

non-economic activity like “possession of a gun in a school zone.” Id. at 560. The

original version of the Gun-Free School Zones Act (“GFSZA”) exceeded Congress’s

commerce power. Id. at 561.

Unlike the original GFSZA, § 922(g)’s possession prong requires proof of a

nexus element—that the defendant possessed “in or affecting commerce” a firearm.

Lopez assumed that this nexus element “would ensure, through case-by-case inquiry,

that the firearm possession in question affects interstate commerce.” Id. If that were

8

true, then the element would often present “a complicated legal question” that would

delight “students of constitutional law.” Rehaif v. United States, 588 U.S. 225, 250,

(2019) (Alito, J., dissenting).

But this Court construed the nexus element in a predecessor statute to reach

any possession of a firearm if the firearm itself previously moved in interstate or

foreign commerce. Scarborough v. United States, 431 U.S. 563 (1977). The

constitutional logic of Lopez cannot be reconciled with the statutory holding of

Scarborough. See Alderman v. United States, 562 U.S. 1163 (2011) (Thomas, J.,

dissenting from denial of certiorari); see also United States v. Seekins, 52 F.4th 988,

989 (5th Cir. 2022) (Ho, J., dissenting from denial of reh’g). If Congress had the

affirmative power to regulate who could possess a musket if that musket (or any of

its components) had ever crossed a state line, then it had the power to disarm the

militia.

For most of the 20th Century—even as Congress asserted a more robust role

in regulating firearms through its commerce power—this Court and the Government

seemed to understand that Congress would not, did not, and could not directly ban

any Americans from possessing firearms. But in Scarborough v. United States, 431

U.S. 563 (1977), this Court considered the first, hastily passed possession ban and

found “no indication that Congress intended to require any more than the minimal

nexus that the firearm have been, at some time, in interstate commerce.” Id. at 575.

This Court has never considered whether that same interpretation governs the

post-1986 version of § 922(g)(1). The defendant in Scarborough argued that

9

possession required proof of a present connection to commerce, whereas a past

connection would satisfy the nexus element for receipt. 431 U.S. at 569. The Court

rejected that argument because, at the time, possession was prohibited only in a lastminute addendum, without much care for verb tense, in an entirely separate title. Id.

at 569–70. But in 1986 Congress combined the prohibitions into a single statute, with

three different nexus elements depending on the prohibited activity:

It shall be unlawful for any [prohibited] person:

to ship or transport in interstate or foreign commerce,

or possess in or affecting commerce, any firearm or

ammunition;

or to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce

18 U.S.C. § 922(g) (emphases added).

In § 922(g)’s current form, there are two textual distinctions between the nexus

elements for “possess” and “receive.” First, for possession, the Government must

prove a nexus for the possession itself; for receipt, the nexus element modifies

“firearm” or “ammunition.” Id. Second, because the phrase “in or affecting commerce”

modifies the present-tense verb “possess,” the text requires a present connection with

commerce (even if that connection is unspecified). For receipt, “the proscribed act, ‘to

receive any firearm,’ is in the present tense, the interstate commerce reference is in

the present perfect tense, denoting an act that has been completed.” Barrett v. United

States, 423 U.S. 212, 216 (1976).

10

Whether Scarborough correctly or incorrectly interpreted the 1968 possession

ban, the principles of statutory interpretation do not allow the Court to disregard

these distinctions in the modern form of the crime.

And even if that interpretation of statutory language or presumed

congressional intent were correct, the statute would exceed Congress’s power under

the Constitution. The movement of a durable item like a firearm from one state to

another may be “commerce,” but the item does not remain “in commerce” forever.

There is “no better example of the police power, which the Founders denied the

National Government and reposed in the States, than the suppression of violent

crime and vindication of its victims.” United States v. Morrison, 529 U.S. 598, 618

(2000).

The current version of the possession ban makes up more than 10% of federal

prosecutions. See Emily Tiry et al., Prosecution of Federal Firearms Offenses 2000-16

at 4–5, Tables 1 & 2 (Urban Institute Oct. 2021).1 Despite repeated calls for additional

guidance, this Court has never explained how the prevailing interpretation of 18

U.S.C. § 922(g)’s possession-nexus element is consistent with the original

understanding of the Constitution.

Under the prevailing interpretation of 18 U.S.C. § 922(g), the statute entirely

bans millions of Americans from keeping firearms in their homes and automobiles on

pain of up to fifteen years in prison. See Federal Bureau of Investigation, Active

1

Available at https://www.ojp.gov/pdffiles1/bjs/grants/254520.pdf (accessed

May 7, 2024).

11

Records in the NICS Indices (updated April 30, 2024) (reporting more than 31 million

entries of prohibited persons in the national background-check database, including 5

million prohibited under § 922(g)(1)).

CONCLUSION

This Court should grant the petition and set this case for a decision on the

merits.

Respectfully submitted,

________________________

J. Matthew Wright

Counsel of Record

FEDERAL PUBLIC

DEFENDER’S OFFICE

600 South Tyler Street

Suite 2300

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org

August 11, 2025

12