Reply Brief — Jose Antonio Hernandez, Petitioner v. United States

Supreme Court briefNov 5, 2025

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No. 25-5421

JOSE ANTONIO HERNANDEZ, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

REPLY BRIEF FOR PETITIONER

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

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................... i

TABLE OF AUTHORITIES ............................................................ ii

INTRODUCTION .............................................................................1

ARGUMENT .....................................................................................3

The courts of appeals are deeply divided over the scope of

a fundamental constitutional right. ....................................3

II. The Court should decide this critically important question

now despite the Attorney General’s recent revival of a

discretionary avenue for restoring gun rights. ................. 10

III. The government’s vehicle objections are baseless. .......... 14

CONCLUSION ............................................................................... 15

TABLE OF AUTHORITIES

Cases

Curtis v. United States,

511 U.S. 485 (1994) .................................................................... 15

District of Columbia v. Heller,

554 U.S. 570 (2008)....................................................................... 4

Garland v. Range,

144 S. Ct. 2706 (2024)................................................................... 8

Greenlaw v. United States,

554 U.S. 237 (2008) .................................................................... 15

Jackson v. United States,

144 S. Ct. 2710 (2024)................................................................... 8

Logan v. United States,

552 U.S. 23 (2007)........................................................................11

NYSRPA v. Bruen,

597 U.S. 1 (2022) .................................................................... 3, 13

Pitsilides v. Barr,

128 F.4th 203 (3d Cir. 2025) ......................................................... 7

Range v. Attorney General,

124 F.4th 218 (3d Cir. 2024) (en banc) ......................... 3, 5, 6, 7, 9

See United States v. Jackson,

121 F.4th 656 (8th Cir. 2024) ........................................................ 1

TikTok v. Garland,

604 U.S. 56 (2025)......................................................................... 8

United States v. Bean,

537 U.S. 71 (2002) ...................................................................... 12

United States v. Cole,

No. 24-10877, 2025 WL 339894 (11th Cir. Jan. 30, 2025) ........... 4

iii

United States v. Connelly,

117 F.4th 269 (5th Cir. 2024) ........................................................ 6

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ................................................ 3, 5, 6

United States v. Duarte,

108 F.4th 786 (9th Cir. 2024) .................................................... 2, 9

United States v. Duarte,

137 F.4th 743 (9th Cir. 2025) (en banc) ................................ 4, 5, 6

United States v. Eichman,

496 U.S. 310 (1990)....................................................................... 8

United States v. Grace,

461 U.S. 171 (1983)....................................................................... 8

United States v. Hemani,

No. 24-1234 (U.S.)......................................................................... 9

United States v. Hunt,

123 F.4th 697 (4th Cir. 2024) ................................................ 3, 4, 6

United States v. Jackson,

110 F.4th 1120 (8th Cir. 2024) .............................................. 4, 6, 9

United States v. Moore,

111 F.4th 266 (3d Cir. 2024) .......................................................... 8

United States v. Patino,

758 F. Supp. 3d 664 (W.D. Tex. 2024) ........................................... 9

United States v. Rahimi,

602 U.S. 680 (2024)................................................................. 8, 13

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) ............................................ 3, 5, 6, 7

United States v. Willis,

563 F.3d 168 (5th Cir. 2009) ...................................................... 15

Vincent v. Bondi,

127 F.4th 1263 (10th Cir. 2025) ................................................ 4, 9

Vincent v. Garland,

144 S. Ct. 2708 (2024)................................................................... 9

Williams v. Illinois,

399 U.S. 235 (1970)....................................................................... 8

Statutes

18 U.S.C. § 925(c) ........................................................................... 10

Other Authorities

Granting of Relief; Federal Firearms Privileges, 90 Fed. Reg.

17,835 (Apr. 29, 2025) ..................................................................11

S. Rep. 102-353 (1992) .................................................................... 14

U.S. SENT. COMM’N, Quick Facts 18 U.S.C. § 922(g) Firearms

Offenses (2024) ........................................................................... 10

Withdrawing the Attorney General’s Delegation of Authority, 90

Fed. Reg. 13,080 (Mar. 20, 2025) .................................................11

JOSE ANTONIO HERNANDEZ, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

REPLY BRIEF FOR PETITIONER

INTRODUCTION

The government cannot dispute that the question presented—

whether the federal felon-in-possession statute violates the Second

Amendment—is “exceptionally important.” See United States v.

Jackson, 121 F.4th 656, 660 (8th Cir. 2024) (Stras, J., dissenting

from denial of rehearing en banc). The government also concedes

that the courts of appeals are divided over how to analyze

constitutional challenges to the statute. After all, “perhaps no single

Second Amendment issue has divided the lower courts more than

the constitutionality of the 18 U.S.C. § 922(g)(1) felon-disarmament

rule’s application to certain nonviolent felons.” United States v.

Duarte, 108 F.4th 786, 787 (9th Cir. 2024) (VanDyke, J., dissenting

from grant of rehearing en banc). And the government musters no

defense of the Fifth Circuit’s decision below, which conflicts with

this Court’s precedent and demotes the Second Amendment to a

second-class right. See Pet. 27–31.

Still, the government asks this Court to kick the can down the

road. But the government dramatically understates the severity of

the circuit split, which has deepened and is firmly entrenched. The

government also misplaces reliance on the recently revived

administrative process for restoring firearm rights. That process

was unavailable to Hernandez—as well as countless Americans

prosecuted under § 922(g)(1)—and cannot cure the statute’s

constitutional defects. And the government’s vehicle objections are

unfounded. This is an ideal case to decide whether § 922(g)(1) is

constitutional as applied to nonviolent offenders like Hernandez.

Delaying review perpetuates the current state of disarray in the

lower courts while a fundamental right hangs in the balance. And

the need for certainty is especially urgent because § 922(g)(1) is one

of the most commonly charged federal crimes and challenges to the

statute are congesting the lower courts’ dockets. This Court should

answer this critically important question now.

ARGUMENT

The courts of appeals are deeply divided over the

scope of a fundamental constitutional right.

The government concedes that the courts of appeals are split but

deems the disagreement “shallow.” BIO 2. Not so. The courts of

appeals are deeply divided over how to analyze Second Amendment

challenges to § 922(g)(1). The split will not go away and requires

this Court’s intervention.

1. The courts of appeals are hopelessly fractured over a

fundamental issue: whether § 922(g)(1) is vulnerable to as-applied

Second Amendment challenges. See Pet. 15–25. The Third, Fifth,

and Sixth Circuits all recognize that the statute may be

unconstitutional as applied to individuals convicted of certain

offenses under the text-and-history test laid out in NYSRPA v.

Bruen, 597 U.S. 1 (2022). See Range v. Attorney General, 124 F.4th

218, 232 (3d Cir. 2024) (en banc); United States v. Diaz, 116 F.4th

458, 470 n.4 (5th Cir. 2024); United States v. Williams, 113 F.4th

637, 657, 661 (6th Cir. 2024). In other words, “[s]imply classifying a

crime as a felony does not meet the level of historical rigor required

by Bruen and its progeny.” Diaz, 116 F.4th at 469. By contrast, the

Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits have

categorically upheld § 922(g)(1), no matter the underlying crime.

See United States v. Hunt, 123 F.4th 697, 700 (4th Cir. 2024); United

States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024); United States

v. Duarte, 137 F.4th 743 (9th Cir. 2025) (en banc), pet. for writ of

cert. filed, No. 25-425 (U.S. Oct. 6, 2025); Vincent v. Bondi, 127 F.4th

1263, 1266 (10th Cir. 2025); United States v. Cole, No. 24-10877,

2025 WL 339894, at *4 (11th Cir. Jan. 30, 2025) (per curiam).

And the courts of appeals are divided over important underlying

issues relevant to the Second Amendment analysis. See Pet. 22–24.

First, the courts disagree about how much weight to give this

Court’s statements in District of Columbia v. Heller that “nothing

in our opinion should be taken to cast doubt on longstanding

prohibitions on the possession of firearms by felons” and that such

laws are “presumptively lawful.” 554 U.S. 570, 626, 627 n.26 (2008).

The Tenth and Eleventh Circuits have foregone any historical

analysis based on pre-Bruen circuit precedent that, in turn, relied

on Heller. Vincent, 127 F.4th at 1265–66; Cole, 2025 WL 339894, at

*4. The Fourth Circuit also held that it was bound by pre-Bruen

precedent relying on Heller. Hunt, 123 F.4th at 700, 703–04. The

Eighth and Ninth Circuits have conducted a historical analysis to

either “support[ ]” or “confirm[ ]” Heller’s statements. Jackson, 110

F.4th at 1125; Duarte, 137 F.4th at 752. By contrast, the Third,

Fifth, and Sixth Circuits have held that Heller’s statements are

dicta because this Court did not provide any historical justifications

for felon-in-possession laws, so these courts conducted an

independent historical inquiry. Range, 124 F.4th at 228–29 & n.8;

Diaz, 116 F.4th at 466; Williams, 113 F4th at 643–44, 648.

Second, the courts that have undertaken a historical analysis

diverge in how they interpret the government’s proposed historical

analogues. For example, the Fifth and Ninth Circuits have each

relied on capital punishment and permanent estate forfeiture to

support § 922(g)(1). Diaz, 116 F.4th at 467–71; Duarte, 137 F.4th at

756–62. But the Third Circuit has rejected those analogues. Range,

124 F.4th at 231. And although it acknowledged that the question

was “unsettled,” the Sixth Circuit identified a pitfall of relying on

capital punishment: “Felons … 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. The courts also disagree about the tradition to be

gleaned from historical laws prohibiting religious minorities, Native

Americans, Blacks, and loyalists from possessing guns. The Fourth,

Sixth, Eighth, and Ninth Circuits have interpreted these historical

laws as supporting a broad tradition allowing a legislature to

disarm any group it deems dangerous. 1 Hunt, 123 F.4th at 707–08;

Williams, 113 F.4th at 657; Jackson, 110 F.4th at 1127–28; Duarte,

137 F.4th at 761. By contrast, the Third and Fifth Circuits have

interpreted these laws as supporting a far narrower tradition:

disarming political traitors or potential insurrectionists who pose a

threat of armed rebellion. Range, 124 F.4th at 229–30; United States

v. Connelly, 117 F.4th 269, 277–78 (5th Cir. 2024).

Third, the courts that permit as-applied challenges disagree

about how to conduct the analysis. The Fifth Circuit first held that

an as-applied challenge turns on whether a defendant’s underlying

conviction was subject to “serious and permanent punishment” at

the founding. Diaz, 116 F.4th at 470 & n.4. And when conducting

that analysis, courts may consider only convictions punishable by

more than a year in prison—other conduct is “not relevant.” Id. at

467. In the Sixth Circuit, however, an as-applied challenge turns on

1 And these circuits disagree about the scope of this tradition. The

Sixth Circuit found that history requires an opportunity for “individuals

[to] demonstrate that their particular possession of a weapon posed no

danger to peace.” Williams, 113 F.4th at 657. But the Fourth, Eighth, and

Ninth Circuits determined that “[n]ot all persons disarmed under [these]

historical precedents … were violent or dangerous persons,” so “there is

no requirement for an individualized determination of dangerousness as

to each person in a class of prohibited persons.” Jackson, 110 F.4th at

1128; see Hunt, 123 F.4th at 707; Duarte, 137 F.4th at 760–61.

whether someone can show that they are “not dangerous.” Williams,

113 F.4th at 657. And a court evaluating dangerousness “may

consider a defendant’s entire criminal record—not just the specific

felony underlying his § 922(g)(1) conviction.” Id. at 659–60. The

Third Circuit has adopted yet another standard, holding that

§ 922(g)(1) is unconstitutional as applied to someone “who did not

“pose[ ] a physical danger to others.” Range, 124 F.4th at 232.

Although the court emphasized that its decision was “narrow,” id.,

the court’s reasoning “rejects all historical support for disarming

non-violent felons,” id. at 294 (Shwartz, J., dissenting). And the

Third Circuit allows courts to consider not only an individual’s

“entire criminal history,” but also “post-conviction conduct.”

Pitsilides v. Barr, 128 F.4th 203, 212 (3d Cir. 2025).

And the government does not meaningfully address the

deepening analytical fracture illustrated by the decision below—

that the Fifth Circuit affirmed Hernandez’s § 922(g)(1) conviction

without addressing whether the Second Amendment permits

imprisonment and disarmament based on Hernanez’s predicate

convictions. Instead, it affirmed because Hernandez was on

supervised release. Pet. 14–15, 2a. The government merely notes

that three other circuits are in agreement. BIO 3. But the Fifth

Circuit simply joins two of those circuits in the deeply flawed

reasoning of the Third Circuit. See BIO 3; United States v. Moore,

111 F.4th 266, 272 (3d Cir. 2024).

The government fails to engage with any of this Court’s cases

that directly reject upholding the constitutionality of a statute

based on conduct outside of what the challenged statute regulates.

Pet. 33–34; see, e.g., TikTok v. Garland, 604 U.S. 56, 71–72 (2025);

United States v. Eichman, 496 U.S. 310, 313 n.1, 316 n.5 (1990);

United States v. Grace, 461 U.S. 171, 183–84 (1983); Williams v.

Illinois, 399 U.S. 235, 238–40 (1970).

In short, the fractures among the courts of appeals at every

stage of the Second Amendment analysis are far from shallow.

2. The government suggests that the Court’s recent denial of

plenary review in several § 922(g)(1) cases when faced with a

similar split supports denying review again. BIO 2. Just the

opposite. The deepening division since this Court denied review

shows that this entrenched split will not go away without this

Court’s intervention.

Although this Court has not granted plenary review in a

§ 922(g)(1) case, the Court issued GVRs in several cases “for further

consideration in light of” United States v. Rahimi, 602 U.S. 680

(2024). See Garland v. Range, 144 S. Ct. 2706 (2024); Jackson v.

United States, 144 S. Ct. 2710 (2024); Vincent v. Garland, 144 S. Ct.

2708 (2024). But Rahimi did not resolve the split. None of those

courts

altered

their

pre-Rahimi

decisions—which

reached

drastically divergent results—based on Rahimi. See Vincent, 127

F.4th at 1264 (“Rahimi doesn’t undermine the panel’s earlier

reasoning or result” that § 922(g)(1) is constitutional in all

applications based on pre-Rahimi, pre-Bruen precedent); Jackson,

110 F.4th at 1122 (“Rahimi does not change our conclusion” that

history supports § 922(g)(1) in every application); Range, 124 F.4th

at 232 (again holding that § 922(g)(1) is unconstitutional as applied

to a nonviolent individual after considering Rahimi).

Indeed, “[n]othing in the Supreme Court’s recent Rahimi

decision controls or even provides much new guidance” for

analyzing Second Amendment challenges to § 922(g)(1). Duarte,

108 F.4th at 787 (VanDyke, J., dissenting from grant of rehearing

en banc). “While Rahimi likely issued to clarify the confusion left by

Bruen, lower courts have remained confused.” United States v.

Patino, 758 F. Supp. 3d 664, 669 (W.D. Tex. 2024).

Now the Court has granted review in United States v. Hemani,

No. 24-1234 (U.S.), to answer the question of whether 18 U.S.C.

§ 922(g)(3) violates the Second Amendment as applied to a

marijuana user. But Hemani will not resolve the ultimate question

Hernandez asks. Although this Court’s measured approach may

have been warranted to allow further percolation following Rahimi,

the Court should grant review now to resolve the intractable split

over the constitutionality of a statute used to prosecute thousands

more individuals than § 922(g)(3). 2

II.

The Court should decide this critically important

question now despite the Attorney General’s recent

revival of a discretionary avenue for restoring gun

rights.

The government suggests that this circuit split may “evaporate”

because of a recently reestablished administrative process for

restoring firearm rights. BIO 2. Under 18 U.S.C. § 925(c), an

individual who is prohibited from possessing firearms may have his

or her firearm rights restored “if it is established to [the Attorney

General’s] satisfaction that the circumstances regarding the

disability, and the applicant’s record and reputation, are such that

the applicant will not be likely to act in a manner dangerous to

public safety and that the granting of the relief would not be

contrary to the public interest.” But this relief provision is

2 Of the 7,419 convictions under 18 U.S.C. § 922(g) in fiscal year 2024,

90.4% were under 18 U.S.C. § 922(g)(1). See U.S. SENT. COMM’N, Quick

Facts 18 U.S.C. § 922(g) Firearms Offenses (2024), available at

https://www.ussc.gov/research/quick-facts/section-922gfirearms#:~:text=Population%20Snapshot,handout%20or%20learn%20

more%20below.

irrelevant to thousands of individuals—including Hernandez—who

could not take advantage of it to restore their right to keep and bear

arms before this change in policy. And § 925(c) cannot cure the

constitutional concerns with § 922(g)(1).

1. Section 925(c) is irrelevant here because it was unavailable to

Hernandez. Beginning in 1992—decades before any of Hernandez’s

underlying

because

convictions—§ 925(c)

Congress

prohibited

was

“rendered

inoperative”

using

appropriated

funds

investigate or act on relief applications. Logan v. United States, 552

U.S. 23, 28 n.1 (2007). Only recently has the Attorney General

reestablished the process and begun granting relief from federal

firearm disabilities. See Withdrawing the Attorney General’s

Delegation of Authority, 90 Fed. Reg. 13,080 (Mar. 20, 2025)

(explaining that the Department of Justice “anticipates future

actions, including rulemaking consistent with applicable law, to

give full effect to 18 U.S.C. 925(c)”); Granting of Relief; Federal

Firearms Privileges, 90 Fed. Reg. 17,835 (Apr. 29, 2025) (granting

10 individuals relief under § 925(c)).

In other words, Hernandez could not have used § 925(c) to

restore his firearm rights. Neither could other individuals—

perhaps numbering in the thousands—whose Second Amendment

challenges to § 922(g)(1) are winding their way through the lower

courts. Even if the relief provision has some impact on the Second

Amendment analysis moving forward, the current circuit split

affects countless § 922(g)(1) convictions and warrants this Court’s

review.

2. Section 925(c) will not, as the government suggests,

“address[ ] any constitutional concerns about the breadth and

duration of the restriction imposed by Section 922(g)(1).” 3 BIO 9,

Vincent v. Bondi, No. 24-1155 (Aug. 11, 2025). In fact, the relief

provision has features that this Court has held are inconsistent

with the Second Amendment.

Section 925(c) grants the Attorney General “broad discretion”

to grant or deny relief—“even when the statutory prerequisites are

satisfied”—that is reviewable only under an arbitrary and

capricious standard. United States v. Bean, 537 U.S. 71, 75–77 &

n.2 (2002). In that way, the statute mirrors New York’s “may issue”

licensing law, which gave authorities “discretion to deny concealed-

The government claims that “Congress has addressed

[constitutional] concerns through 18 U.S.C. § 925(c).” BIO 8, Vincent,

supra (No. 24-1155). But Congress could not have intended the statute to

address constitutional concerns with federal firearm prohibitions because

Congress had no concerns about the Second Amendment when it enacted

the first version of § 925(c) alongside the modern felon-in-possession

statute in 1968. See Pet. 6–8.

carry licenses even when the applicant satisfies the statutory

criteria,” subject only to arbitrary-and-capricious review. See

Bruen, 597 U.S. at 14. This Court held that the New York law was

inconsistent with the Second Amendment. Id. at 71. So too is a

regime that would allow Congress to pass a sweeping law

disarming millions of Americans and then gives the Attorney

General broad and essentially unreviewable discretion to

determine who among them may recover their fundamental right

to keep and bear arms.

And § 925(c) incorporates a “dangerousness” standard that this

Court rejected in Rahimi. There, the government argued that

Congress may disarm individuals who are not “responsible.” Gov’t

Br. 27, United States v. Rahimi, No. 22-915 (U.S. Aug. 14, 2023).

And according to the government, “a person is not ‘responsible’ if his

possession of a firearm would pose a danger of harm to himself or

others.” Id. In other words, the government used “‘responsible’ as a

placeholder for dangerous.” Tr. of Oral Arg. 10–12, United States v.

Rahimi, No. 22-915 (U.S. Nov. 7, 2023). But this Court unanimously

rejected that theory. Rahimi, 602 U.S. at 701–02; id. at 772–73

(Thomas, J., dissenting). The Court explained that “responsible” is

a “vague term” and that it is “unclear what such a rule would

entail.” Id. at 701 (maj. op.). And by deeming the term “responsible”

vague, the Court necessarily rejected the government’s proposed

definition: dangerous. Congress expressed a similar concern when

it defunded § 925(c), explaining that determining whether someone

is dangerous is a “subjective task.” S. Rep. 102-353 (1992). After

Rahimi, dangerousness is not the touchstone for deciding who can

and cannot possess a firearm.

This Court needs to determine, first, whether there is a

historical

tradition

disarming

nonviolent

felons—

notwithstanding § 925(c). If there is no such tradition, then an

administrative process that gives the executive branch nearly

unbridled discretion to restore firearm rights based on a vague and

subjective standard cannot salvage the statute’s constitutional

defects.

III.

The government’s vehicle objections are baseless.

The government’s vehicle objections ring hollow. Its reasons for

arguing that Hernandez’s as-applied challenge would fail only

reinforce the need for this Court to resolve the question presented.

Neither Hernandez’s supervised release on a separate case, nor

uncharged conduct, nor his prior conviction for § 922(g)(1), 4 BIO 3,

fall within Bruen and Rahimi’s analytical framework for testing

whether the government can show an analogous tradition of

firearms dispossession under § 922(g)(1). What the government

argues is a vehicle problem is actually a merits argument. The

government cannot dispute that if this Court grants review, it will

reach the question presented and resolve the intractable conflict in

the courts of appeals. This case presents a clean vehicle for deciding

the question presented.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Whether Hernandez could have challenged his possession of a

firearm as the basis for revoking his term of supervised release is a

separate question that was not presented to the Fifth Circuit. See

Greenlaw v. United States, 554 U.S. 237, 252–53 (2008). Nor could he

have collaterally challenged his previous § 922(g)(1) conviction on direct

appeal of the revocation of his term of supervised release. See Curtis v.

United States, 511 U.S. 485, 487 (1994); United States v. Willis, 563 F.3d

168, 170 (5th Cir. 2009).