Petition for Writ of Certiorari — Jose Antonio Hernandez, Petitioner v. United States
Supreme Court briefAug 19, 2025
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JOSE ANTONIO HERNANDEZ, 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
MAUREEN SCOTT FRANCO
Federal Public Defender
KRISTIN L. DAVIDSON
Assistant Federal Public Defender
Counsel of Record
OFFICE OF THE FEDERAL
PUBLIC DEFENDER
WESTERN DISTRICT OF TEXAS
300 Convent Street, Suite 2300
San Antonio, Texas 78205
Kristin_Davidson@fd.org
(210) 472-6700
Counsel for Petitioner
i
QUESTION PRESENTED
Whether 18 U.S.C. § 922(g)(1), the federal statute that prohibits
anyone who has been convicted of “a crime punishable by
imprisonment for a term exceeding one year” from possessing a
firearm, violates the Second Amendment either facially or as
applied to individuals with prior convictions for non-violent
offenses.
ii
RELATED PROCEEDINGS
United States District Court for the Western District of Texas:
United States v. Jose Antonio Hernandez, No. 7:23-cr-210-1
(May 3, 2024) (judgment of conviction)
United States v. Jose Hernandez, No. 7:20-cr-309-1 (May 3,
2024) (order revoking supervised release)
United States Court of Appeals for the Fifth Circuit:
United States v. Jose Antonio Hernandez, Nos. 24-50363 & 2450380 (Apr. 21, 2025)
iii
TABLE OF CONTENTS
Question presented ........................................................................... i
Related proceedings ......................................................................... ii
TABLE OF CONTENTS ................................................................. iii
Table of authorities ...........................................................................v
Introduction.......................................................................................1
Opinion below....................................................................................4
Jurisdiction........................................................................................5
Constitutional and statutory provisions involved...........................5
Statement ..........................................................................................5
A. Legal background. .........................................................5
B. Proceedings below. ...................................................... 11
Reasons for granting the petition ................................................. 15
I.
The courts of appeals are deeply divided over the scope of
a fundamental constitutional right. ................................. 15
II. The decision below is wrong and conflicts with this
Court’s precedent. .............................................................. 25
A. Section 922(g)(1) is facially unconstitutional because
it imposes an unprecedented lifetime ban on firearm
possession. .................................................................. 26
B. Section 922(g)(1) is unconstitutional as applied to
individuals based on their prior non-violent felony
convictions. ................................................................. 31
III. This is a critically important and recurring question. .... 35
iv
IV. This case is an ideal vehicle for addressing this question.
............................................................................................ 37
Conclusion ...................................................................................... 38
Appendix
Court of appeals opinion (Apr. 21, 2025) ................................ 1a–2a
v
TABLE OF AUTHORITIES
Cases
Barrett v. United States,
423 U.S. 212 (1976) ...................................................................... 7
Binderup v. Attorney General,
836 F.3d 336 (3d Cir. 2016) (en banc) ......................................... 10
District of Columbia v. Heller,
554 U.S. 570 (2008) ............................................................ 8–9, 25
Kanter v. Barr, 919 F.3d 437
(7th Cir. 2019) ........................................................ 5, 9, 14, 30, 32
Lewis v. United States,
445 U.S. 55 (1980) .................................................................. 7, 26
NYSRPA v. Bruen,
597 U.S. 1 (2022) .................................. 1, 3, 10–11, 19, 25–30, 33
Range v. Attorney General,
124 F.4th 218 (3d Cir. 2024) (en banc) ................................. 16–17
Rehaif v. United States,
588 U.S. 225 (2019) .................................................................... 35
Scarborough v. United States,
431 U.S. 563 (1977) ...................................................................... 7
TikTok v. Garland,
145 S. Ct. 57 (2025) .................................................................... 34
Tot v. United States,
319 U.S. 463 (1943) ...................................................................... 6
United States v. Bullock,
123 F.4th 183 (5th Cir. 2024) ............................................... 24, 27
United States v. Contreras,
125 F.4th 725 (5th Cir. 2025) ............................................... 14, 24
vi
United States v. Diaz,
116 F.4th 458 (5th Cir. 2024),
cert. denied, No. 24-6625
(U.S. Jun. 23, 2025)...................................... 13–14, 23–25, 27–32
United States v. Duarte,
101 F.4th 657 (9th Cir. 2024),
reh’g en banc granted, opinion vacated,
108 F.4th 786 (9th Cir. 2024) ..................................................... 20
United States v. Duarte,
137 F.4th 743
(9th Cir. (en2025) (en banc) ...................................................... 21
United States v. Dubois,
139 F.4th 887 (11th Cir. 2025) ................................................... 22
United States v. Eichman,
496 U.S. 310 (1990)..................................................................... 34
United States v. Focia,
869 F.3d 1269 (11th Cir. 2017) ..................................................... 9
United States v. Gay,
98 F.4th 843 (7th Cir. 2024) ....................................................... 19
United States v. Giglio,
126 F.4th 1039 (5th Cir. 2024) ............................................. 15, 24
United States v. Goins,
118 F.4th 794 (6th Cir. 2024) ...................................................... 19
United States v. Grace,
461 U.S. 171 (1983)..................................................................... 34
United States v. Hunt,
123 F.4th 697 (4th Cir. 2024),
cert. denied,
No. 24-6818 (U.S. Jun. 2, 2025) ................................................. 18
vii
United States v. Jackson,
110 F.4th 1120 (8th Cir. 2024),
reh’g en banc denied,
121 F.4th 656 (8th Cir. 2024),
cert. denied,
No. 24-6517 (U.S. May 19, 2025)................................................ 20
United States v. Miller,
307 U.S. 174 (1939)....................................................................... 7
United States v. Moore,
111 F.4th 266 (3d Cir. 2024),
cert. denied,
No. 24-968 (U.S. Jun. 30, 2025) ........................................... 17, 19
United States v. Moore,
666 F.3d 313 (4th Cir. 2012) ......................................................... 9
United States v. Rahimi,
602 U.S. 680 (2024) ............................ 2, 10–11, 25, 27–29, 31, 33
United States v. Salerno,
481 U.S. 739 (1987) .................................................................... 31
United States v. Stevens,
No. 25-5027 (U.S.)....................................................................... 37
United States v. Williams,
113 F.4th 637 (6th Cir. 2024) .......................................... 18–19, 30
Vincent v. Bondi,
127 F.4th 1263 (10th Cir. 2025),
pet. for cert. pending, No. 24-1155 (U.S.) ............................. 21–22
Vincent v. Bondi,
No. 24-1155 (U.S.) ....................................................................... 37
Williams v. Illinois,
399 U.S. 235 (1970)..................................................................... 33
Zherka v. Bondi,
140 F.4th 68 (2d Cir. 2025) ......................................................... 16
viii
Constitutional Provisions
U.S. Const. amend. II ............................................................ 5–8, 31
Statutes
18 U.S.C. § 3583(b)(1) .................................................................... 35
18 U.S.C. § 922(g)(1) ...........................................................................
i, 1– 5, 9, 11–29, 31–32, 34–37
18 U.S.C. § 922(g)(8) ...................................................................... 29
28 U.S.C. § 1254(1) .......................................................................... 5
31 U.S.C. § 5332 ........................................................................11, 14
Act of Aug. 4, 1790, § 27, 1 Stat. 163 ............................................ 14
Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65 ................... 27
Act of July 31, 1789, § 22, 1 Stat. 42............................................. 14
An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87342, 75 Stat. 757 (1961) ............................................................... 8
Federal Firearms Act, 52 Stat. 1250 (1938) .................................... 6
Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No.
90-351, 82 Stat. 197 ..................................................................... 8
Other Authorities
Adam Winkler, Heller’s Catch-22,
56 UCLA L. REV. 1551 (2009) ....................................................... 6
Dep’t of Justice, Bureau of Justice Statistics, Mark A. Motivans,
Federal Justice Statistics, 2022 (Jan. 2024) ............................. 36
ix
Dep’t of Justice, Bureau of Justice Statistics, Sean Rosenmerkel
et al., Felony Sentences in State Courts, 2006—Statistical
Tables (rev. Nov. 2010) ............................................................... 36
Dru Stevenson,
In Defense of Felon-in-Possession Laws, 43 CARDOZO L. REV.
1573 (2022) ................................................................................. 36
Federal Firearms Act: Hearings Before the Subcomm. to
Investigate Juvenile Delinq. of the Sen. Comm. on the Judiciary,
89th Cong. 41 (1965) ..................................................................... 7
Judgment, United States v. Hernandez, No. 3:18-cr-00766-DB(2),
ECF Doc. No. 65 (W.D. Tex. Oct. 26, 2018) ................................11
Kathryn Preyer,
Crime and Reform in Post-Revolutionary Virginia, 1 LAW &
HIST. REV. 53, 73 (1983) ............................................................. 27
S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112,
2169 ............................................................................................... 7
U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms
Offenses (June 2024) .................................................................. 36
1
JOSE ANTONIO HERNANDEZ, 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
Petitioner Jose Antonio Hernandez, respectfully petitions for a
writ of certiorari to review the judgment of the United States Court
of Appeals for the Fifth Circuit.
INTRODUCTION
This Court’s decision in NYSRPA v. Bruen, 597 U.S. 1 (2022),
brought about a sea change in Second Amendment jurisprudence.
In Bruen’s wake, the courts of appeals considered renewed
constitutional challenges to the federal felon-in-possession statute,
18 U.S.C. § 922(g)(1). They reached dramatically divergent results.
A panel of the Third Circuit at first held that felons were excluded
from “the people” protected by the Second Amendment, but the en
2
banc court applied Bruen’s text-and-history analysis and held that
§ 922(g)(1) was unconstitutional as applied to an individual with a
non-violent predicate conviction. A panel of the Ninth Circuit
similarly held that the statute violated the Second Amendment as
applied to someone with non-violent offenses before vacating that
decision en banc. The Fourth and Seventh Circuits assumed that
as-applied challenges to § 922(g)(1) were available in at least some
circumstances. By contrast, the Eighth, Tenth, and Eleventh
Circuits all upheld § 922(g)(1) with no need for felony-by-felony
determinations, although those courts disagreed about whether a
historical analysis was required.
The Court’s decision in United States v. Rahimi, 602 U.S. 680
(2024), did little to quell the confusion. The courts of appeals
continue to be deeply divided after Rahimi. The Third, Fifth, and
Sixth Circuits each acknowledge that § 922(g)(1) is vulnerable to
as-applied challenges. The Eighth Circuit, however, has reaffirmed
its conclusion that history supports applying § 922(g)(1) across the
board with no need for felony-by-felony analysis. The Tenth and
Eleventh Circuits continue to uphold the statute in all applications
based on dicta from this Court instead of the historical analysis
that Bruen demands. The Fourth Circuit refuses to consider asapplied challenges on several grounds, including that felons are not
3
among “the people” protected by the Second Amendment. And the
en banc Ninth Circuit, as well as the Second Circuit, recently held
that there is a history of disarming certain classes of individuals
that supports applying § 922(g)(1) to all felons.
In short, the Fifth Circuit’s decision below continues to deepen
an intractable conflict in the courts of appeals over the scope of a
fundamental right. And the Fifth Circuit’s decision is wrong.
Section 922(g)(1) is a mid-20th century innovation drafted when
Congress believed—incorrectly—that the Second Amendment does
not protect an individual right to bear arms. So Congress made no
effort to pass a law that was “consistent with the Nation’s historical
tradition of firearm regulation.” See Bruen, 597 U.S. at 24. Rather,
it passed a sweeping ban that is irreconcilable with our history and
tradition. Section 922(g)(1) is facially unconstitutional because its
lifetime prohibition on gun possession imposes a historically
unprecedented burden on the right to bear arms. No historical
firearm law imposed permanent disarmament. And the justification
behind § 922(g)(1)—disarming a broad group of potentially
irresponsible individuals—also fails historical scrutiny. At most, our
history shows a tradition of disarming violent individuals who
threaten armed insurrection or pose a present physical threat to
others. So, at the very least, § 922(g)(1) is unconstitutional as
4
applied to individuals like Hernandez who were previously
convicted of non-violent crimes. And the Fifth Circuit’s decision that
Hernandez could be disarmed because he was serving a term of
supervised release when he possessed a gun flouts the plain text of
§ 922(g)(1), which disarms individuals based on a prior conviction,
not based on their supervised release status.
This question is critically important. Section 922(g)(1) is one of
the most commonly charged federal offenses. Uncertainty about
whether the statute is constitutional affects thousands of criminal
cases each year. Even more concerning, § 922(g)(1) categorically
and permanently prohibits millions of Americans—the vast
majority of whom have non-violent convictions—from exercising
their right to keep and bear arms.
This Court’s intervention is urgently needed to resolve the
scope of a fundamental constitutional right. After Rahimi, the
confusion among the courts of appeals has only deepened. This
question will not go away, and this is an ideal vehicle to resolve it.
The Court should grant certiorari.
OPINION BELOW
A copy of the unpublished opinion of the court of appeals,
United States v. Hernandez, Nos. 24-50363 & 24-50380 (5th Cir.
Apr. 21, 2025) (per curiam), is reproduced at App. 1a–2a.
5
JURISDICTION
The Fifth Circuit entered its judgment on April 21, 2025.
Justice Alito granted Hernandez’s motion to extend the time for
filing a petition for writ of certiorari to August 19, 2025. See
Hernandez v. United States, No. 24A1294. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Second Amendment 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.”
Section 922(g)(1) of Title 18 of the United States Code provides:
“It shall be unlawful for any person … who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year … to … possess in or affecting commerce, any
firearm or ammunition.”
STATEMENT
A.
Legal background.
1. “Founding-era legislatures did not strip felons of the right to
bear arms simply because of their status as felons.” Kanter v. Barr,
919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting). Indeed,
“[b]ans on ex-felons possessing firearms were first adopted in the
1920s and 1930s, almost a century and a half after the Founding.”
6
Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1563
(2009). In 1938, Congress criminalized firearm possession by
individuals convicted of certain crimes for the first time. See Federal
Firearms Act, ch. 850, § 2(f), 52 Stat. 1250, 1251 (1938). But that
statute was much narrower than the modern version. The Federal
Firearms Act only applied to someone “convicted of a crime of
violence,” id., which included “murder, manslaughter, rape,
mayhem, kidnaping, burglary, housebreaking,” and certain kinds of
aggravated assault, id. § 1(6). The Act prohibited an individual with
such a conviction from “receiv[ing]” a firearm, and it considered
possession to be “presumptive evidence” of receipt. 1 Id. § 2(f).
2. It was not until the 1960s that the federal felon-in-possession
statute took on its modern form. At the time, Congress shared a
widely
held—but
incorrect—understanding
of
the
Second
Amendment. In committee testimony, the Attorney General assured
Congress that “[w]ith respect to the second amendment, the
Supreme Court of the United States long ago made it clear that the
amendment did not guarantee to any individuals the right to bear
arms” and opined that “the right to bear arms protected by the
second amendment relates only to the maintenance of the militia.”
1 This possession-based presumption was short-lived. A few years
later, this Court invalidated the presumption on due process grounds. Tot
v. United States, 319 U.S. 463, 467 (1943).
7
Federal Firearms Act: Hearings Before the Subcomm. to Investigate
Juvenile Delinq. of the Sen. Comm. on the Judiciary, 89th Cong. 41
(1965). And Congress dismissed constitutional concerns about
federal firearm regulations, explaining that the Second Amendment
posed “no obstacle” because federal regulations did not “hamper the
present-day militia.” S. Rep. No. 90-1097 (1968), reprinted in 1968
U.S.C.C.A.N. 2112, 2169. Congress relied on court decisions—
including United States v. Miller, 307 U.S. 174 (1939)—which held
that the Second Amendment “was not adopted with the individual
rights in mind.” Id.
Unconstrained by the Second Amendment, “Congress sought to
rule broadly,” employing an “expansive legislative approach” to
pass a “sweeping prophylaxis … against misuse of firearms.”
Scarborough v. United States, 431 U.S. 563, 572 (1977) (first
quote); Lewis v. United States, 445 U.S. 55, 61, 63 (1980) (second
and third quotes). In particular, Congress was concerned with
keeping firearms out of the hands of broad categories of
“potentially irresponsible persons, including convicted felons.”
Barrett v. United States, 423 U.S. 212, 220 (1976). So it enacted
two significant changes that brought about the modern felon-inpossession ban. First, Congress expanded the Federal Firearms
Act to prohibit individuals convicted of any crime “punishable by
8
imprisonment for a term exceeding one year”—not just violent
crimes—from receiving a firearm. See An Act to Strengthen the
Federal Firearms Act, Pub. L. No. 87-342, § 2, 75 Stat. 757, 757
(1961). Second, a few years later, Congress criminalized possession
of a firearm—not just receipt—by anyone with a felony conviction.
See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L.
No. 90-351, § 1202(a)(1), 82 Stat. 197, 236.
3. In its seminal decision in District of Columbia v. Heller, this
Court held for the first time that the Second Amendment codifies
an individual right to keep and bear arms—a right that is not
limited to militia service. 554 U.S. 570, 579–600 (2008). In reaching
this conclusion, the Court conducted a “textual analysis” of the
Second Amendment’s language and surveyed the Amendment’s
“historical background.” Id. at 578, 592. The Court had “no doubt,
on the basis of both text and history, that the Second Amendment
conferred an individual right to keep and bear arms.” Id. at 595.
Relying on the historical understanding of the Amendment,
however, the Court recognized that “the right secured by the Second
Amendment is not unlimited.” Id. at 626. The Court identified
several
“longstanding”
and
“presumptively
lawful”
firearm
regulations, such as prohibitions on felons possessing firearms. Id.
at 626–27 & n.27. But the Court cautioned that it was not
9
“undertak[ing] an exhaustive historical analysis … of the full scope
of the Second Amendment.” Id. at 626. And it did not cite any
historical examples of these “longstanding” laws, explaining that
there would be “time enough to expound upon the historical
justifications for the[se] exceptions … if and when those exceptions
come before us.” Id. at 635. The Court then turned to the District of
Columbia handgun ban at issue, finding that it was historically
unprecedented and thus violated the Second Amendment. Id. at
629, 631–35.
Following Heller, the courts of appeals coalesced around a twostep framework for analyzing Second Amendment challenges that
focused on the historical scope of the Second Amendment at step
one and applied means-ends scrutiny at step two. See, e.g., Kanter,
919 F.3d at 441–42; United States v. Focia, 869 F.3d 1269, 1285
(11th Cir. 2017). And this Court’s recognition that the Second
Amendment protects an individual right to bear arms brought
renewed constitutional challenges to § 922(g)(1). But the courts of
appeals almost uniformly rejected Second Amendment challenges
to the statute, either applying means-ends scrutiny or relying on
Heller’s “presumptively lawful” language. See, e.g., United States v.
Moore, 666 F.3d 313, 316–17 (4th Cir. 2012) (collecting cases). The
lone exception was the Third Circuit, which held that § 922(g)(1)
10
was unconstitutional as applied to two individuals with underlying
convictions—one for corrupting a minor and the other for carrying
a handgun without a license—that “were not serious enough to strip
them of their Second Amendment rights.” Binderup v. Attorney
General, 836 F.3d 336, 351–57 (3d Cir. 2016) (en banc).
4. Then came Bruen. In Bruen, this Court held that the twostep framework adopted by the courts of appeals was “one step too
many.” 597 U.S. at 19. Instead, the Court explained that Heller
demanded a test “centered on constitutional text and history.” Id.
at 22. Under this test, “when the Second Amendment’s plain text
covers an individual’s conduct, the Constitution presumptively
protects that conduct.” Id. at 17. “The 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 then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s unqualified command.” Id.
(cleaned up).
Bruen—and the Court’s later decision in Rahimi—explain that
“the appropriate analysis involves considering whether the
challenged regulation is consistent with the principles that
underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. “A
court must ascertain whether the new law is ‘relevantly similar’ to
11
laws that our tradition is understood to permit, ‘apply[ing]
faithfully the balance struck by the founding generation to modern
circumstances.’” Id. (quoting Bruen, 597 U.S. at 29). The law need
not be a “historical twin,” but analogical reasoning is also not a
“regulatory blank check.” Bruen, 597 U.S. at 30. “How” and “why”
the regulations burden the right to bear arms are central to this
inquiry. Bruen, 597 U.S. at 29; Rahimi, 602 U.S. at 692. These
considerations ask whether the modern and historical regulations
impose a “comparable burden” (the how) and “whether that burden
is comparably justified” (the why). Bruen, 597 U.S. at 29. “Even
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.” Rahimi, 602 U.S. at 692.
B.
Proceedings below.
1. In 2018, Hernandez was convicted of bulk cash smuggling,
in violation of 31 U.S.C. § 5332. C.A. ROA.24-50363.177; C.A.
ROA.24-50380.158;
see
also
Judgment,
United
States
v.
Hernandez, No. 3:18-cr-00766-DB(2), ECF Doc. No. 65 (W.D. Tex.
Oct. 26, 2018). Because of this felony conviction, Hernandez was
convicted two years later of being a felon in possession of a firearm,
in violation of § 922(g)(1). C.A. ROA.24-50363.178–80; C.A.
ROA.24-50380.156. For this first § 922(g)(1) conviction, Hernandez
12
was sentenced to 366 days’ imprisonment, followed by three years’
supervised release. C.A. ROA.24-50380.75–77. In November 2023,
while he was serving his term of supervised release, a search of
Hernandez’s home yielded an AR-15 rifle, magazines, and
ammunition. Id.
2. Because Hernandez was in the possession of an AR-15 and
ammunition, he was indicted a second time for being a felon in
possession, in violation of 18 U.S.C. § 922(g)(1). C.A. ROA.2450363.22–23. Hernandez moved to dismiss the indictment. Id. at
24-50363.26–59. He argued that § 922(g)(1) facially violates the
Second Amendment under Bruen’s text-and-history test. Id. at 2450363.32–51. In the alternative, he argued that § 922(g)(1) is
unconstitutional as applied to him because there is not a historical
tradition of permanently disarming a person with an analogous
criminal history. Id. at 24-50363.51–54.
The district court denied Hernandez’s motion to dismiss without explanation, relying instead on orders it had entered in other
cases. C.A. ROA.24-50363.95–96. Hernandez pleaded guilty to the
indictment. C.A. ROA.24-50363.101–04, 149, 173. The district
court sentenced him to 72 months’ imprisonment, followed by three
years’ supervised release. C.A. ROA.24-50363.117–18.
13
3. On appeal, Hernandez raised both facial and as-applied
challenges to the constitutionality of § 922(g)(1) under Bruen’s
framework, as clarified in Rahimi and the Fifth Circuit’s decision
in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied,
No. 24-6625 (U.S. Jun. 23, 2025). Diaz, as the seminal Fifth Circuit
case applying Bruen and Rahimi’s analyses to § 922(g)(1),
established three points: (1) “felons” are part of “the people,” and
thus § 922(g)(1) is presumptively unconstitutional, id. at 466–67;
(2) § 922(g)(1) is facially constitutional, id. at 471–72; and (3)
§ 922(g)(1) was constitutional as-applied to Diaz because—when
considering only his prior convictions—his prior felony for vehicle
theft was relevantly similar to the Founding-era crime of horse
theft, which was punishable by death or estate forfeiture, id. at
467, 469–70.
Hernandez argued that § 922(g)(1) facially violates the Second
Amendment to preserve the issue for further review but
acknowledged that the Fifth Circuit’s precedent foreclosed his
argument. As for his as-applied challenge to § 922(g)(1),
Hernandez argued that neither of his prior, non-violent felony
convictions were relevantly similar to crimes during the Founding
era that were punishable by death or estate forfeiture. There is no
evidence that colonial-era Americans were punished “permanently
14
and severely” for possessing firearms after any crimes punishable
by more than one year of imprisonment. Diaz, 116 F.4th at 468
(rejecting a prior § 922(g)(1) offense as a relevantly similar
predicate); Kanter, 919 F.3d at 454 (Barrett, J., dissenting) (noting
scholars have not been able to identify any founding-era laws
disarming all felons). Similarly, the federal crime of bulk cash
smuggling under 31 U.S.C. § 5332 is a 21st-century crime, first
enacted in 2001 for which there was no relevant analogue during
the Founding era. Regulating the passage of goods through the
U.S. border fell under the customs statutes enacted by the First
Congress. See, e.g., Act of Aug. 4, 1790, § 27, 1 Stat. 163; Act of July
31, 1789, § 22, 1 Stat. 42. And penalties for customs offenses were
remedial, not penal.
The Fifth Circuit affirmed. App. 1a–2a. The court held that its
recent precedent foreclosed Hernandez’s facial challenge to
§ 922(g)(1). 2 App. 2a. Then, rather than addressing his as-applied
challenge by examining whether Hernandez’s prior felony
convictions were relevantly similar to historical analogues, the
court held that “because Hernandez was serving a term of
supervised release when he violated § 922(g)(1), the statute does
2 The Fifth Circuit cited United States v. Contreras, 125 F.4th 725,
729 (5th Cir. 2025), but Contreras in turn relies on Diaz, 116 F.4th at 471–
72 (holding that § 922(g)(1) is not facially unconstitutional).
15
not violate the Second Amendment as applied to him.” App. 2a
(citing United States v. Giglio, 126 F.4th 1039, 1043–46 (5th Cir.
2024) (rejecting as-applied challenge to § 922(g)(1) because, at the
time of his conviction, Giglio was serving a sentence for a prior
conviction)).
REASONS FOR GRANTING THE PETITION
I.
The courts of appeals are deeply divided over the
scope of a fundamental constitutional right.
The courts of appeals are deeply divided over how to analyze
Second Amendment challenges to § 922(g)(1). Some circuits see no
need to conduct the text-and-history analysis required by Bruen,
relying instead on this Court’s dicta that felon-in-possession
prohibitions are presumptively lawful. Others apply Bruen’s textand-history framework but reach dramatically different results.
Examining the text, the circuits disagree about whether felons are
part of “the people” protected by the Second Amendment. And in
analyzing the historical evidence, the circuits are split over which
traditions justify § 922(g)(1), whether the statute is vulnerable to
as-applied challenges, and (if so) what standard to apply.
1. The Second Circuit recently rejected a facial challenge to
§ 922(g)(1), holding that its pre-Bruen precedent, which upheld
§ 922(g)(1) based on the assurances in Heller and McDonald that
16
“‘longstanding prohibitions on the possession of firearms by felons”
are presumptively constitutional,’ … survives Bruen.” Zherka v.
Bondi, 140 F.4th 68, 74 (2d Cir. 2025) (cleaned up). Turning to the
as-applied challenge, the Second Circuit found that the defendant,
despite being a felon, remained part of “the people.” Id. at 76–77.
But under Bruen’s second step, the court rejected a case-by-case
approach to determine if certain nonviolent felonies exempted a
person from prosecution under § 922(g)(1), id. at 95–96, and found
that, “[l]ike § 922(g)(1), laws from seventeenth century England, the
American Colonies, and the early United States, establish that it
has long been permissible to regulate firearms possession through
legislative
proscription
on
a
class-wide
basis,
without
a
particularized finding that the individuals disarmed pose a threat
to society.” Id. at 78–79.
2. The Third Circuit, sitting en banc, struck down § 922(g)(1) as
applied to an individual convicted of food stamp fraud who did not
“pose[ ] a physical danger to others.” Range v. Attorney General, 124
F.4th 218, 232 (3d Cir. 2024). The court held that the plaintiff was
part of “the people” protected by the Second Amendment despite his
prior conviction. Id. at 226–28. And the court held that the
government failed to show “a longstanding history and tradition of
depriving people like [the plaintiff] of their firearms.” Id. at 232. In
17
doing so, the court rejected the government’s reliance on statusbased restrictions, emphasizing that founding-era laws disarmed
distrusted groups—like loyalists, Native Americans, religious
minorities, and Black Americans—based on fear of rebellion. Id. at
229–30. The court also dismissed the government’s “dangerousness”
principle, which would encompass even non-violent offenders, as
“far too broad.” Id. at 230 (cleaned up). Finally, the court rejected
the government’s reliance on capital punishment and forfeiture,
explaining that “the Founding-era practice of punishing some
nonviolent crimes with death does not suggest that the particular
(and distinct) punishment at issue here—de facto lifetime
disarmament for all felonies and felony-equivalent misdemeanors—
is rooted in our Nation’s history and tradition.” Id. at 230–31.
However, the court subsequently held that a prosecution under
§ 922(g)(1) is justified as applied to “a convict on supervised
release.” United States v. Moore, 111 F.4th 266, 269–73 (3d Cir.
2024), cert. denied, No. 24-968 (U.S. Jun. 30, 2025).
3. The Fourth Circuit takes a much different approach, refusing
to entertain as-applied challenges and upholding § 922(g)(1)
“without regard to the specific conviction that established [a
person’s] inability to lawfully possess firearms.” United States v.
Hunt, 123 F.4th 697, 700 (4th Cir. 2024), cert. denied, No. 24-6818
18
(U.S. Jun. 2, 2025). The court provided two alternative grounds for
this conclusion. First, it held that it remained bound by its preBruen precedent foreclosing as-applied challenges to § 922(g)(1). Id.
at 702–04. Those earlier cases, in turn, relied on Heller’s statement
that felon-in-possession bans are “presumptively lawful” and its
reference to “law-abiding” citizens. Id. at 703. Second, the court held
that as-applied challenges to § 922(g)(1) fail both steps of Bruen’s
text-and-history test. Id. at 704. At the first step, the court held that
“the Second Amendment protects firearms possession by the lawabiding, not by felons.” Id. at 705. And at the second step, the court
concluded that legislatures could categorically disarm groups from
possessing firearms in a historical analysis mirroring the Eighth
Circuit’s discussed below. Id. at 705–08; see infra 20.
4. The Sixth Circuit allows as-applied challenges to § 922(g)(1)
by individuals who show that they are “not dangerous.” United
States v. Williams, 113 F.4th 637, 657, 663 (6th Cir. 2024). The court
first confirmed that felons are part of “the people” protected by the
Second Amendment. Id. at 648–50. Next, the court found historical
support for disarming “presumptively dangerous” groups who posed
a threat to public order—like religious minorities, Native
Americans, loyalists, and freedmen—but explained that these laws
all allowed individuals to show that they posed no danger. Id. at
19
657. So the court held that an individual must be given an
opportunity to show that he is “not dangerous” and “falls outside of
§ 922(g)(1)’s constitutionally permissible scope.” Id. In conducting
this dangerousness inquiry, the court explained that courts can
“consider a defendant’s entire criminal record—not just the specific
felony underlying his § 922(g)(1) conviction.” Id. at 659–60. The
Sixth Circuit extended this reasoning to hold that, like the Third
Circuit, the nation’s historical tradition of “disarming the
dangerous” and “forfeiture laws” “also supports disarming those on
parole, probation, or supervised release.” United States v. Goins,
118 F.4th 794, 801–02 (6th Cir. 2024) (citing Moore, 111 F.4th at
269–72).
5. The Seventh Circuit has assumed that as-applied challenges
to § 922(g)(1) are available. United States v. Gay, 98 F.4th 843, 846
(7th Cir. 2024). But the court concluded that the defendant in
Gay—who had convictions for violent felonies and was on parole
when he possessed a gun—was “not a ‘law-abiding, responsible’
person who has a constitutional right to possess firearms.” Id. at
847 (quoting Bruen, 597 U.S. at 26, 70).
6. The Eighth Circuit has upheld § 922(g)(1) as constitutional
across the board with “no need for felony-by-felony litigation.”
United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024), reh’g
20
en banc denied, 121 F.4th 656 (8th Cir. 2024), cert. denied, No. 246517 (U.S. May 19, 2025). Based on historical laws prohibiting
certain groups of people—religious minorities, Native Americans,
and those who refused to declare an oath of loyalty—from
possessing guns, the court reasoned that legislatures have long
exercised authority to disarm broad categories of people who are
“not law-abiding” or “presented an unacceptable risk of danger if
armed.” Id. at 1126–28. Although the Third and Sixth Circuits
surveyed similar laws and found that they did not support
disarming individuals who pose no risk of danger, the Eighth
Circuit disagreed. The court explained that “not all persons
disarmed under historical precedents … were violent or dangerous,”
so “there is no requirement for an individualized determination of
dangerousness as to each person in a class of prohibited persons.”
Id. at 1128.
7. A
Ninth
Circuit
panel
held
that
§ 922(g)(1)
is
unconstitutional as applied to a defendant with only non-violent
convictions. United States v. Duarte, 101 F.4th 657, 661 (9th Cir.
2024), reh’g en banc granted, opinion vacated, 108 F.4th 786 (9th
Cir. 2024). Sitting en banc, however, the court is aligned with the
Second, Fourth, Eighth, Tenth, and Eleventh circuits and held that
Ҥ 922(g)(1) is not unconstitutional as applied to non-violent
21
felons.” United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025).
The court relied on this Court’s repeated assurances that
prohibitions on the possession of a firearm by felons are
presumptively lawful and that Bruen and Rahimi did not disrupt
the
court’s
pre-Bruen
precedent
that
foreclosed
Second
Amendment challenges to § 922(g)(1). Id. at 750–52. It then
applied Bruen’s test to confirm its reading that no felony-by-felony
evaluation of § 922(g)(1) is required. Id. at 761. While the court
found that the conduct proscribed by § 922(g)(1) is covered by the
plain text of the Second Amendment, id., the court held that the
government met its burden under Bruen’s second step based on
historical evidence consistent with “two regulatory principles that:
(1) legislatures may disarm those who have committed the most
serious crimes; and (2) legislatures may categorically disarm those
they deem dangerous, without an individualized determination of
dangerousness,” id. at 761–62.
8. The Tenth Circuit has held that § 922(g)(1) is constitutional
as applied to “all individuals convicted of felonies” with no need to
“draw[ ] constitutional distinctions based on the type of felony
involved.” Vincent v. Bondi, 127 F.4th 1263, 1265 (10th Cir. 2025),
pet. for cert. pending, No. 24-1155 (U.S.). But the court did not
engage in Bruen’s text-and-history analysis. Instead, the court held
22
that it remained bound by pre-Bruen precedent. Id. at 1264–65.
That precedent, in turn, foreclosed as-applied challenges to
§ 922(g)(1) based on Heller’s statement that prohibitions on the
possession of firearms by felons were “longstanding” and
“presumptively lawful.” Id. at 1265. So the court held that “the
Second Amendment doesn’t prevent application of § 922(g)(1) to
nonviolent offenders.” Id. at 1266.
9. The Eleventh Circuit has also held—without conducting a
historical analysis—that statutes disqualifying felons from
possessing a firearm under any and all circumstances do not offend
the Second Amendment. United States v. Dubois, 139 F.4th 887,
893 (11th Cir. 2025). Like the Second and Tenth Circuits, the court
held that its pre-Bruen precedent—which relied on Heller—
remained binding. Id. Thus, the court reaffirmed its conclusion
that felons are categorically disqualified from exercising their
Second Amendment right under Heller. Id. at 893–94.
10. The Fifth Circuit’s decision below underscores the deep
divisions between the courts of appeals.
a. The Fifth Circuit splits with other circuits on two
preliminary questions. Unlike the Second, Fourth, Ninth, Tenth,
and Eleventh Circuits—which have held that they remain bound
by their pre-Bruen precedent—the Fifth Circuit agrees with the
23
Third and Sixth Circuits that Bruen rendered its prior precedent
obsolete. Diaz, 116 F.4th at 466. And while the Tenth and Eleventh
Circuits have declined to conduct any historical analysis based on
Heller’s “presumptively lawful” language, the Fifth Circuit joined
the Third and Sixth Circuits in refusing to treat that language as
controlling. 3 Id. Instead, these courts acknowledge that Bruen
requires a full text-and-history analysis. Id.
b. At Bruen’s first step, the Fifth Circuit adopted the majority
view shared by the Second, Third, and Sixth Circuits—but split
with the Fourth Circuit—by holding that felons are part of “the
people” protected by the Second Amendment. Id. at 466–67.
c. At the second step, the Fifth Circuit’s historical analysis
diverges from other circuits in several respects. The Second,
Fourth, Eighth, and Ninth Circuits have held that history supports
upholding § 922(g)(1) regardless of a defendant’s underlying
conviction. But the Fifth Circuit left the door open for “as-applied
challenges by defendants with different predicate convictions.”
Diaz, 116 F.4th at 469 & 470 n.4. At first, the Fifth Circuit’s limited
its analysis to whether the felony predicates that triggered
3 The Fifth Circuit expressly rejected the Eleventh Circuit’s reliance
“solely upon Rahimi’s mention of Heller’s ‘felons and the mentally ill’
language in upholding the constitutionality of § 922(g)(1).” Diaz, 116 F.4th
at 466 n.2
24
§ 922(g)(1) were relevantly similar to crimes that subjected the
convictions to “serious and permanent punishment” at the
founding. Diaz, 116 F.4th at 470 & n.4. This is different than the
line drawn by the Third Circuit (whether a person poses a physical
danger to others) and the Sixth Circuit (whether a person is
dangerous). The Fifth Circuit has since held that § 922(g)(1) is
constitutional as applied to individuals convicted of “violent
crimes.” United States v. Bullock, 123 F.4th 183, 185 (5th Cir. 2024).
And the Fifth Circuit has held that defendants who were on
supervised release when they possessed a firearm can be disarmed
under § 922(g)(1), joining the Third and Sixth Circuits. See Giglio,
126 F.4th at 1044; Contreras, 125 F.4th at 732–33. The Fifth Circuit
affirmed Hernandez’s new § 922(g)(1) conviction based solely on the
fact that he was serving a term of supervised release at the time of
his new § 922(g)(1) offense. App. 2a.
*
*
*
The courts of appeals are fractured over how to conduct the
Second Amendment analysis, and the splits are entrenched and
deepening. This Court’s intervention is needed to resolve the scope
of the right to keep and bear arms.
25
II.
The decision below is wrong and conflicts with this
Court’s precedent.
The Fifth Circuit’s decision in Diaz, followed by the panel
below, correctly held that, under the plain text of the Second
Amendment, felons are part of “the people” protected by the
Amendment. 116 F.4th at 467; see App. 2a. After all, this Court has
explained that “the people” “unambiguously refers to all members
of the political community,” so the right to keep and bear arms
belongs to “all Americans.” Heller, 554 U.S. at 580. But the Fifth
Circuit has misapplied Bruen’s historical analysis. Section
922(g)(1) does not align with our Nation’s tradition of firearm
regulation on either of the two central considerations: how and
why it burdens the right to keep and bear arms. See Bruen, 597
U.S. at 29; Rahimi, 602 U.S. at 692. The difference in how
§ 922(g)(1) burdens the right to bear arms is fatal to the statute
facially, and why it burdens the right to bear arms dooms the
statute as applied to non-violent offenders like Hernandez. And
the Fifth Circuit’s conclusion that someone serving a term of
supervised release can be disarmed under § 922(g)(1) is divorced
from the plain text of the statute, which has nothing to do with
supervised release.
26
A.
Section 922(g)(1) is facially unconstitutional
because it imposes an unprecedented lifetime
ban on firearm possession.
1. Section 922(g)(1) facially violates the Second Amendment
because it imposes a sweeping, historically unprecedented lifetime
ban that prevents millions of Americans from possessing firearms
for self-defense. The government has not cited a single historical
gun law that imposed a permanent prohibition on the right to keep
and bear arms—even for self-defense. In other words, no historical
regulation “impose[s] a comparable burden on the right of armed
self-defense.” See Bruen, 597 U.S. at 29.
That is hardly surprising. When Congress passed the modern
felon-in-possession statute—four decades before Heller and more
than a half-century before Bruen—it did not believe that the Second
Amendment protected an individual right to keep and bear arms.
See supra 6–8. So Congress did not try to pass a law that aligned
with the “Nation’s historical tradition of firearm regulation.” See
Bruen, 597 U.S. at 17. Instead—dismissing the Second Amendment
as “no obstacle,” see supra 7–8—it employed an “expansive
legislative approach” to pass a “sweeping prophylaxis … against
misuse of firearms.” Lewis, 445 U.S. at 61, 63. And that sweeping,
permanent prohibition on gun possession imposes a burden far
broader than any firearm regulation in our Nation’s history.
27
2. The
Fifth
Circuit
has
recognized
that
§ 922(g)(1)’s
permanent disarmament requires a historical analogue that also
permanently prevented individuals from possessing guns. See
Diaz, 116 F.4th at 469. But the court did not cite any historical
firearm regulation imposing permanent disarmament. 4 Instead,
the court relied on capital punishment and forfeiture laws as
historical analogues justifying § 922(g)(1). Id. at 467–68. That
reliance conflicts with this Court’s precedent in three ways. 5
a. This Court requires the government to show that a modern
gun law aligns with our “historical tradition of firearm regulation.”
Bruen, 597 U.S. at 24 (emphasis added); Rahimi, 602 U.S. at 691
In its line of cases holding that § 922(g)(1) is constitutional as
applied to someone convicted of a violent crime, the Fifth Circuit has cited
the affray laws. Bullock, 123 F.4th at 185. But there is no indication that
those laws permanently deprived individuals of the right to keep and bear
arms.
4
5 The Fifth Circuit’s decision also misstates the historical evidence in
three ways. First, the court cited a founding-era New York law as
“authorizing the death penalty for theft of chattels worth over five
pounds.” Diaz, 116 F.4th at 468. But theft is not among the crimes subject
to the death penalty under that law. See Act of Feb. 21, 1788, ch. 37, 1788
N.Y. Laws 664–65. Second, despite the court’s characterization of
forfeiture laws as a type of “permanent” disarmament (Diaz, 116 F.4th at
469, 471), “[f]orfeiture still allows a person to keep their other firearms or
obtain additional ones.” Rahimi, 602 U.S. at 760 (Thomas, J., dissenting).
Third, although the court stated (Diaz, 116 F.4th at 468–69) that
individuals convicted of horse theft “were often subject to the death
penalty,” the only source it cited explains that “hardly any horse thieves
were executed.” Kathryn Preyer, Crime and Reform in Post-Revolutionary
Virginia, 1 LAW & HIST. REV. 53, 73 (1983).
28
(same). In other words, the government’s historical analogues
must regulate firearms. In Rahimi, this Court relied only on
historical laws that “specifically addressed firearms violence.” 602
U.S. at 694–95. So too in Bruen. 597 U.S. at 38–66. Capital
punishment and estate forfeiture, however, are not firearm
regulations. So they cannot justify § 922(g)(1). The Fifth Circuit
reached a contrary conclusion by misreading Rahimi.
First, the Fifth Circuit asserted that Rahimi “consider[ed]
several laws that were not explicitly related to guns.” Diaz, 116
F.4th at 468. But Rahimi says otherwise. In Rahimi, this Court
relied on two historical legal regimes—surety laws and going
armed laws—that both “specifically addressed firearms violence.”
602 U.S. at 694–95. To be sure, surety laws were not “passed solely
for the purpose of regulating firearm possession or use.” Diaz, 116
F.4th at 468. But this Court emphasized that, “[i]mportantly for
this case, the surety laws also targeted the misuse of firearms.”
Rahimi, 602 U.S. at 696 (emphasis added). In other words,
historical laws that did not target the misuse of firearms—like
capital punishment and estate forfeiture—are not proper
analogues.
Second, the Fifth Circuit noted that this Court accepted a
greater-includes-the-lesser argument in Rahimi. Diaz, 116 F.4th at
29
469. That is true as far as it goes. Rahimi held that “if
imprisonment was permissible to respond to the use of guns to
threaten the physical safety of others, then the lesser restriction of
temporary disarmament … is also permissible.” 602 U.S. at 699.
But it does not follow, as the Fifth Circuit concluded, that “if capital
punishment was permissible to respond to theft, then the lesser
restriction of permanent disarmament that § 922(g)(1) imposes is
also permissible.” Diaz, 116 F.4th at 469; see App. 2a. This Court
explained that the purpose of imprisonment under the going
armed laws was “to respond to the use of guns to threaten the
physical safety of others.” Rahimi, 602 U.S. at 699. So both the
greater historical punishment (imprisonment under the going
armed laws) and the lesser modern restriction (disarmament
under 18 U.S.C. § 922(g)(8)) had the same purpose—curbing gun
violence. Not so here. Again, capital punishment and forfeiture
simply did not target gun violence.
b. This Court has also emphasized that the right to bear arms
“is not a second-class right, subject to an entirely different body of
rules than the other Bill of Rights guarantees.” Bruen, 597 U.S. at
70 (cleaned up). But the Fifth Circuit’s reasoning—that because
capital punishment is an “obviously permanent” deprivation of an
individual’s right to bear arms, the lesser restriction of permanent
30
disarmament is permissible for individuals who are not executed,
Diaz, 116 F.4th at 469—conflicts with how the Constitution treats
other fundamental rights.
“Felons, after all, don’t lose other rights guaranteed in the Bill
of Rights even though an offender who committed the same act in
1790 would have faced capital punishment.” Williams, 113 F.4th at
658. “No one suggests that such an individual has no right to a jury
trial or be free from unreasonable searches and seizures.” Id. And
“we wouldn’t say that the state can deprive felons of the right to free
speech because felons lost that right via execution at the time of the
founding.” Kanter, 919 F.3d at 461–62 (Barrett, J., dissenting). “The
obvious point that the dead enjoy no rights does not tell us what the
founding-era generation would have understood about the rights of
felons who lived, discharged their sentences, and returned to
society.” Id. at 462. Rather, “history confirms that the basis for the
permanent and pervasive loss of all rights cannot be tied generally
to one’s status as a convicted felon or to the uniform severity of
punishment that befell the class.” Id. at 461.
c. Finally, this Court has expressed “doubt that three colonial
regulations could suffice to show a tradition.” Bruen, 597 U.S. at
46. But the Fifth Circuit relied on only three laws to establish a
tradition of permanently punishing individuals who have been
31
convicted of theft: a colonial Massachusetts law, a founding-era
New York law, and a post-revolutionary Virginia law. Diaz, 116
F.4th at 468–69; see App. 2a. Putting to one side whether the
court’s reading of these laws is correct (see supra 27 n.5), this
limited historical evidence is too slender a reed to establish a
tradition
justifying
the
deprivation
of
a
fundamental
constitutional right.
3. A law is not compatible with the Second Amendment if it
regulates the right to bear arms “to an extent beyond what was
done at the founding.” Rahimi, 602 U.S. at 692. Section 922(g)(1)
does just that. It imposes a lifetime ban on firearm possession that
would have been unimaginable to the Founders. Thus, § 922(g)(1)
facially violates the Second Amendment because there are “no set
of circumstances” under which it is valid. See Rahimi, 602 U.S. at
693 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
B.
Section 922(g)(1) is unconstitutional as applied
to individuals based on their prior non-violent
felony convictions.
1. Even if § 922(g)(1) is facially constitutional, the statute
violates the Second Amendment as applied to individuals who do
not pose a present threat of violence based on their prior
convictions. The Fifth Circuit seems to have acknowledged as
much, explaining that the historical analogues that support
32
applying the statute to individuals with violent convictions lose
their force when an individual’s “underlying convictions do not
inherently involve a threat of violence.” Diaz, 116 F.4th at 471 n.5.
Indeed, the government has not cited any tradition of disarming
non-violent individuals. The government’s historical evidence
shows—at most—a tradition of disarming violent individuals who
threaten armed insurrection or presently threaten the physical
safety of others. See Kanter, 919 F.3d at 454 (Barrett, J.,
dissenting) (explaining that historical evidence shows “that the
legislature may disarm those who have demonstrated a proclivity
for violence or whose possession of guns would otherwise threaten
the public safety”). And there is no basis in law that condones the
Fifth Circuit’s decision to answer a question not presented for its
review without deciding whether the actual statute of conviction
could constitutionally be applied to a defendant.
2. Hernandez appealed his judgment of conviction under
§ 922(g)(1) to challenge the criminal penalties the government
sought to impose for violating that statute. The government was
thus obligated to defend the appealed conviction by demonstrating
that applying § 922(g)(1) to someone based on the felonies
Hernandez
committed—cash
bulk
smuggling
and
felon-in-
possession—is consistent with our Nation’s historical tradition. See
33
Bruen, 597 U.S. at 29. Nothing in Bruen—or Rahimi—suggests that
that inquiry turns on an independent assessment of whether there
may be some other reason why Hernandez could constitutionally be
disarmed. See Rahimi, 602 U.S. 690, 700–02 (because the
government charged Rahimi only with violating § 922(g)(8), the
Court asked only whether § 922(g)(8) could pass constitutional
muster, not whether the government could have constitutionally
disarm him on another basis); see also id. at 777 (Thomas, J.,
dissenting) (“This case is not about whether States can disarm
people who threaten others.… Instead, the question is whether the
Government can strip the Second Amendment right of anyone
subject to a protective order[.]”). Limiting the analysis to whether
§ 922(g)(1)’s permanent prohibition on firearm possession imposes
a burden on the Second Amendment right consistent with our
Nation’s tradition requires the court to review how the law actually
regulates that behavior. See Williams v. Illinois, 399 U.S. 235, 238–
40 (1970) (holding that the law as it was actually enacted and
enforced violated the defendant’s equal protection rights and
rejecting the state’s argument that the statute was “not
constitutionally infirm simply because the legislature could have
achieved the same result by some other means”).
34
Indeed, other constitutional questions are similarly limited to
the particular law being challenged. See, e.g., TikTok v. Garland,
145 S. Ct. 57, 68 (2025) (“[W]e look [only] to the provisions of the Act
that give rise to the effective TikTok ban that petitioners argue
burdens their First Amendment rights” to address their as-applied
challenge); United States v. Eichman, 496 U.S. 310, 313 n.1, 316 n.5
(1990) (holding that the government could not criminally punish a
defendant for burning Post Office flag under a law specifically
outlawing flag burning, even though he could be subject to
prosecution under a different statute based on the same conduct);
United States v. Grace, 461 U.S. 171, 183–84 (1983) (invalidating a
law that categorically banned the display of signs outside its
building under the First Amendment, even though the same
behavior may have been regulated through “reasonable time, place
and manner restrictions”).
3. In short, the government sought to imprison Hernandez
because he possessed a firearm after having been convicted of
certain non-violent felonies—not because of any other action he
took or any other personal detail about his background. Indeed,
§ 922(g)(1) regulates the possession of a firearm by an individual
who has been convicted of a felony, not possession of a firearm by
an individual on supervised release (which is separately regulated,
35
see 18 U.S.C. § 3583(b)(1)). Whether prior non-violent convictions
for cash bulk smuggling or for being felon-in-possession of a
firearm is the question that ought to have been analyzed on appeal.
The
Fifth
Circuit’s
approach,
which
allows
extra-offense
characteristics and allows a wide range of potentially disqualifying
factors outside the conduct § 922(g)(1) regulates, is contrary to the
historical-tradition approach Bruen adopted and the longstanding
principles
observed
constitutionality
of
by
the
a
specific
Court
when
statute.
The
reviewing
Fifth
the
Circuit
significantly erred in choosing to analyze the constitutionality of
§ 922(g)(1) as applied to Hernandez based on factors outside the
scope of the statute.
At a minimum, this Court should grant, vacate, and remand
with instructions for the Fifth Circuit to consider Hernandez’s asapplied challenge to his § 922(g)(1) conviction itself, without any
inquiry independent of the conduct the statute actually regulates.
III.
This is a critically important and recurring question.
The Court should grant the petition because the question is
critically important and recurring. After all, Ҥ 922(g) is no minor
provision.” Rehaif v. United States, 588 U.S. 225, 239 (2019) (Alito,
J., dissenting). Out of about 64,000 cases reported to the
Sentencing Commission in Fiscal Year 2023, more than 7,100
36
involved convictions under § 922(g)(1). See U.S. Sent’g Comm’n,
Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses, at 1 (June
2024). Those convictions accounted for over 10% of all federal
criminal cases. See id.
Even
beyond
new
prosecutions,
§ 922(g)(1)’s
reach
is
staggering. The statute prohibits millions of Americans from
exercising their right to keep and bear arms for the rest of their
lives. Recent estimates of the number of individuals with felony
convictions range from 19 million to 24 million. Dru Stevenson, In
Defense of Felon-in-Possession Laws, 43 CARDOZO L. REV. 1573,
1591 (2022) (citations omitted). And § 922(g)(1) is particularly
troubling because most of the individuals it prohibits from
possessing firearms are peaceful, with convictions for only nonviolent offenses. Less than 20% of state felony convictions and less
than 5% of federal felony convictions are for violent offenses. See
Dep’t of Justice, Bureau of Justice Statistics, Sean Rosenmerkel et
al., Felony Sentences in State Courts, 2006—Statistical Tables, at
3 (Table 1.1) (rev. Nov. 2010); Dep’t of Justice, Bureau of Justice
Statistics, Mark A. Motivans, Federal Justice Statistics, 2022, at
12 (Table 7) (Jan. 2024).
Given § 922(g)(1)’s widespread impact both on new prosecutions
and on the millions of non-violent Americans it prohibits from
37
exercising a fundamental constitutional right, this Court should
answer this important and recurring question as soon as possible.
IV.
This case is an ideal vehicle for addressing this
question.
1. This case presents an ideal vehicle for addressing whether
§ 922(g)(1) violates the Second Amendment. The case cleanly
presents a purely legal issue. There are no jurisdictional problems,
factual disputes, or preservation issues. Hernandez thoroughly
briefed his facial and as-applied Second Amendment challenges in
both the district court and the court of appeals. The district court
and Fifth Circuit squarely rejected both challenges.
2. Counsel is aware of at least two pending petitions for writ of
certiorari that, if granted, would bear on the question presented in
this case: United States v. Stevens, No. 25-5027 (U.S.) and Vincent
v. Bondi, No. 24-1155 (U.S.). Should the Court grant certiorari in
one of these cases or any another pending case presenting a facial
or as-applied challenge to § 922(g)(1), it should at least hold
Hernandez’s petition pending that decision.
38
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
MAUREEN SCOTT FRANCO
Federal Public Defender
KRISTIN L. DAVIDSON
Assistant Federal Public Defender
Counsel of Record
OFFICE OF THE FEDERAL
PUBLIC DEFENDER
WESTERN DISTRICT OF TEXAS
Counsel for Petitioner
August 19, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.