Petition for Writ of Certiorari — Cornell Thomas, Petitioner v. United States
Supreme Court briefAug 21, 2025
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CORNELL THOMAS, 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 WRIT OF CERTIORARI
MAUREEN SCOTT FRANCO
Federal Public Defender
BRADFORD W. BOGAN
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
brad_bogan@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. Cornell Thomas, No. 7:23-cr-212-1 (May 3,
2024) (criminal judgment)
United States Court of Appeals for the Fifth Circuit:
United States v. Cornell Thomas, No. 24-50366 (May 23, 2025)
(per curiam)
iii
Table of Contents
Question Presented ........................................................................... i
Related Proceedings......................................................................... ii
Table of Contents ............................................................................ iii
Table of Authorities...........................................................................v
Introduction.......................................................................................1
Opinion Below ...................................................................................5
Jurisdiction........................................................................................5
Constitutional and Statutory Provisions Involved .........................5
Statement ..........................................................................................6
A. Legal background..........................................................6
B. Proceedings below. ..................................................... 12
Reasons for Granting the Petition ................................................ 17
I.
The courts of appeals are deeply divided over the scope of
a fundamental constitutional right. ................................. 17
II. The decision below is wrong and conflicts with this
Court’s precedent. .............................................................. 26
A. Section 922(g)(1) is facially unconstitutional because
it imposes an unprecedented lifetime ban on firearm
possession. .................................................................. 27
B. Section 922(g)(1) is unconstitutional as applied to
individuals based on their prior non-violent felony
convictions. ................................................................. 33
III. This is a critically important and recurring question. .... 37
iv
IV. This case is an ideal vehicle for addressing this question.
............................................................................................ 39
Conclusion ...................................................................................... 40
Appendix
Court of appeals opinion (Apr. 21, 2025) ................................ 1a–2a
v
TABLE OF AUTHORITIES
Cases
Barrett v. United States,
423 U.S. 212 (1976) ...................................................................... 8
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, 27
Kanter v. Barr, 919 F.3d 437
(7th Cir. 2019)...................................................... 6, 10, 14, 32, 34
Lewis v. United States,
445 U.S. 55 (1980) .................................................................. 8, 28
NYSRPA v. Bruen,
597 U.S. 1 (2022) ............................ 1, 3, 10–11, 13, 21, 27–32, 35
Range v. Attorney General,
124 F.4th 218 (3d Cir. 2024) (en banc) ................................ 18–19
Rehaif v. United States,
588 U.S. 225 (2019) .................................................................... 37
Scarborough v. United States,
431 U.S. 563 (1977) ...................................................................... 8
TikTok v. Garland,
145 S. Ct. 57 (2025) .................................................................... 36
Tot v. United States,
319 U.S. 463 (1943) ...................................................................... 6
United States v. Bullock,
123 F.4th 183 (5th Cir. 2024) ............................................... 26, 29
United States v. Contreras,
125 F.4th 725 (5th Cir. 2025) ..................................................... 26
vi
United States v. Diaz,
116 F.4th 458 (5th Cir. 2024) ...................... 13–14, 24–26, 28– 34
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) ..................................................... 22
United States v. Duarte,
137 F.4th 743 (9th Cir. (en2025) (en banc) ........................ 22–23
United States v. Dubois,
139 F.4th 887 (11th Cir. 2025) ................................................... 24
United States v. Eichman,
496 U.S. 310 (1990) .................................................................... 36
United States v. Focia,
869 F.3d 1269 (11th Cir. 2017)................................................... 10
United States v. Gay,
98 F.4th 843 (7th Cir. 2024) ....................................................... 21
United States v. Giglio,
126 F.4th 1039 (5th Cir. 2025) ............................................. 15, 26
United States v. Goins,
118 F.4th 794 (6th Cir. 2024) ..................................................... 21
United States v. Grace,
461 U.S. 171 (1983) .................................................................... 36
United States v. Hunt,
123 F.4th 697 (4th Cir. 2024) ............................................... 19–20
United States v. Jackson,
110 F.4th 1120 (8th Cir. 2024) ............................................. 21–22
United States v. Miller,
307 U.S. 174 (1939) ...................................................................... 7
vii
United States v. Moore,
111 F.4th 266 (3d Cir. 2024)............................................ 15, 19, 21
United States v. Moore,
666 F.3d 313 (4th Cir. 2012) ...................................................... 10
United States v. Rahimi,
602 U.S. 680 (2024) .................................. 2, 11–12, 27–31, 33, 35
United States v. Salerno,
481 U.S. 739 (1987) .................................................................... 33
United States v. Stevens,
No. 25-5027 (U.S.) ...................................................................... 39
United States v. Williams,
113 F.4th 637 (6th Cir. 2024) ......................................... 20–21, 32
Vincent v. Bondi,
127 F.4th 1263 (10th Cir. 2025) ........................................... 23–24
Vincent v. Bondi,
No. 24-1155 (U.S.) ...................................................................... 39
Williams v. Illinois,
399 U.S. 235 (1970) .................................................................... 35
Zherka v. Bondi,
140 F.4th 68 (2d Cir. 2025) .................................................. 17–18
Constitutional Provisions
U.S. Const. amend. II ........................................................ 5, 7–8, 33
Statutes
18 U.S.C. § 922(g)(1) .............................................................................
.............................. i, 1–5, 10, 13–14, 17–23, 25–31, 33–34, 36–39
18 U.S.C. § 922(g)(8) ...................................................................... 31
viii
28 U.S.C. § 1254(1) .......................................................................... 5
Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65 ................... 29
An Act to Strengthen the Federal Firearms Act,
Pub. L. No. 87-342, 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)
..................................................................................................... 38
Dep’t of Justice, Bureau of Justice Statistics,
Sean Rosenmerkel et al., Felony Sentences in State Courts,
2006—Statistical Tables (rev. Nov. 2010) ................................. 38
Dru Stevenson,
In Defense of Felon-in-Possession Laws, 43 CARDOZO L. REV.
1573 (2022) ................................................................................. 38
Federal Firearms Act: Hearings Before the Subcomm. to
Investigate Juvenile Delinq. of the Sen. Comm. on the
Judiciary, 89th Cong. 41 (1965) .................................................. 7
Kathryn Preyer,
Crime and Reform in Post-Revolutionary Virginia, 1 LAW &
HIST. REV. 53, 73 (1983) ............................................................. 29
S. Rep. No. 90-1097 (1968),
reprinted in 1968 U.S.C.C.A.N. 2112, 2169 ................................ 7
ix
U.S. Sent’g Comm’n
Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses (June 2024)
..................................................................................................... 38
1
CORNELL THOMAS, 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 WRIT OF CERTIORARI
Petitioner Cornell Thomas, 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 asapplied 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
3
not 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
4
others. So, at the very least, § 922(g)(1) is unconstitutional as applied to individuals like Thomas who were previously convicted of
non-violent crimes. And the Fifth Circuit’s decision that Thomas
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.
5
OPINION BELOW
A copy of the unpublished opinion of the court of appeals,
United States v. Thomas, No. 24-50366 (5th Cir. May 23, 2025) (per
curiam), is reproduced at App. 1a–2a.
JURISDICTION
The opinion and judgment of the United States Court of
Ap-peals for the Fifth Circuit were entered on May 23, 2025. This
pe-tition is filed within 90 days after entry of the judgment. See
Sup. Ct. R. 13.1. The Court has jurisdiction to grant certiorari
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.”
6
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.” 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).
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).
1
7
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.” 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
8
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-in-possession ban. First, Congress
expanded the Federal Firearms Act to prohibit individuals convicted of any crime “punishable by 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
9
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 “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
10
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) 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
11
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 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 reg-
12
ulates 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. Thomas is a convicted felon. In March 2008, he was convicted in Texas state court of manufacture or delivery of 4 to 200
grams of a controlled substance, for which he was sentenced to
eight years’ confinement. In February 2019, Thomas was convicted
in Texas state court of possessing 4 to 200 grams of a controlled
substance, for which he was sentenced to six years’ confinement.
In this case, an Odessa, Texas, police officer pulled over a vehicle in which Thomas was a passenger. He fled on foot. The officer
saw Thomas throw something over a fence before cornering him in
a parking lot. Another officer found a Sig Sauer .380 caliber pistol
on the other side of the fence where Thomas had been running.
Thomas admitted that the driver of the vehicle had handed it to
him during the traffic stop and told him to get rid of it. Thomas did
so because he knew he was a felon. The pistol had been manufactured in Exeter, New Hampshire, and therefore had traveled in
interstate commerce before Thomas possessed it.
For that, Thomas was charged in a one-count indictment with
“possess[ing] a firearm, to wit:” the Sig Sauer, “said firearm having
13
been shipped and transported in interstate commerce,” “knowing
that he had been convicted of a crime punishable by imprisonment
for a term exceeding one year,” in violation of 18 U.S.C. § 922(g)(1).
2. Thomas moved to dismiss the indictment, on two grounds.
First, he argued that § 922(g)(1) is unconstitutional under the Second Amendment, both facially and as applied to those with criminal histories like his, under the Supreme Court’s decision in
NYSRPA v. Bruen, 597 U.S. 1 (2022). Second, he argued that the
statute exceeds Congress’s power under the Commerce Clause.
The district court denied Thomas’s motion, citing its orders in
other cases upholding the constitutionality of § 922(g)(1).
3. Thomas pleaded guilty to the indictment. The district court
sentenced him to 60 months’ imprisonment (to run concurrently
with any sentences imposed for pending charges in Texas state
court) and three years’ supervised release.
4. Thomas appealed. He 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
14
§ 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.
Thomas 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), Thomas 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 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, laws prohibiting the possession or delivery of controlled substances have no relevant analogue from the Founding era.
15
The Government moved for summary affirmance. It noted that
Fifth Circuit precedent foreclosed his facial and commerce clause
challenges to § 922(g)(1). Although not addressing Thomas’s argument about his prior drug convictions, the Government pointed out
that recent Fifth Circuit decisions foreclosed his as-applied challenge because he was on parole when he committed the instant
offense. See United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025). 2
2 In Giglio, the Fifth Circuit held that § 922(g)(1) was constitu-
tional as applied to a defendant who possessed a firearm while
serving a federal term of supervised release for a felony conviction.
126 F.4th at 1040–41. Giglio reasoned that there is a historical tradition of “disarm[ing] those who continue to serve sentences for
felony convictions.” Id. at 1044. That tradition, Giglio held,
matches the “why” and “how” of “disarming felons who are still
serving out sentences.” Id. As for the “why,” historical forfeiture
laws “burdened the right to bear arms for the same reasons that
we now burden the rights of convicts on supervised release: to deter criminal conduct, protect the public, and facilitate the convict’s
rehabilitation.” Id. (quoting United States v. Moore, 111 F.4th 266,
269–70 (3d Cir. 2024)). As for the “how,” even though historical
laws “required forfeiture of all chattels, that practice can nevertheless justify the narrower practice of prohibiting possession of some
(viz., fire-arms).” Id. (citing the greater-includes-the-lesser theories of Diaz, 116 F.4th at 469–70, and Rahimi, 602 U.S. at 699).
Finally, “[b]olstering” Giglio’s “conclusion is the unremarkable
proposition that those subject to criminal sentences do not enjoy
the full panoply of rights guaranteed by our Constitution.” Id. at
1045.
16
Thomas acknowledged that his arguments were all foreclosed
by Fifth Circuit precedent, but preserved for further review the
argument that his status as a parolee did not make § 922(g)(1) constitutional as applied by him for a reason the Government neither
pleaded nor proved:
There is no other context in which the government may defend a conviction under a law that criminalizes constitutionally protected behavior by arguing that it could validly
deprive the defendant of his constitutional rights for some
other reason entirely. And certainly nothing in Heller,
Bruen, or Rahimi suggests that, when a defendant argues
that his conviction violates the Second Amendment, the inquiry turns on whether there is any reason that someone in
similar shoes could be punished for possessing a firearm
consistent with historical tradition. To the contrary, both
[the Supreme] Court’s cases and bedrock principles make
plain that the government must defend the challenged law
itself.
(quoting Pet. for Writ of Certiorari, Moore v. United States, No. 24968, at 12).
The Fifth Circuit affirmed. Pet. App. 1a–2a. The court agreed
that all of Thomas’s challenges were foreclosed by its precedent.
Pet. App. 2a.
17
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 text-andhistory 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 asapplied 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
“‘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
18
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 doing so, the court rejected the government’s reliance
on status-based 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
19
“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
(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
20
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 law-abiding, 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 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
21
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
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
22
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
“§ 922(g)(1) is not unconstitutional as applied to non-violent 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 preBruen precedent that foreclosed Second Amendment challenges to
23
§ 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
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
24
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 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
25
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 § 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)
3 The Fifth Circuit expressly rejected the Eleventh Circuit’s re-
liance “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
26
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 Thomas’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.
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 Pet. App. 2a (citing Diaz). After all, this Court
27
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 Thomas. And the Fifth Circuit’s conclusion that someone on parole can be disarmed under § 922(g)(1) is
divorced from the plain text of the statute, which has nothing to do
with parole or release status.
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
28
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.
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
29
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
4 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.
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).
30
(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
31
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
32
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
33
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 applying the statute to
34
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. Thomas 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 Thomas
committed—possession and manufacture or delivery of a con-
35
trolled substance—is consistent with our Nation’s historical tradition. See 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 Thomas 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”).
36
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 Thomas because he possessed a firearm after having been convicted of certain
non-violent felonies—not because he was on parole. 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 parole or other supervision. Whether prior nonviolent convictions for controlled substance offenses is the question
37
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 by
the Court when reviewing the constitutionality of a specific statute. The Fifth Circuit significantly erred in choosing to analyze the
constitutionality of § 922(g)(1) as applied to Thomas 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 Thomas’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 involved convictions under § 922(g)(1). See U.S. Sent’g Comm’n, Quick Facts:
38
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 non-violent 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 exercising a fundamental constitutional right, this Court
39
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. Thomas 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
Thomas’s petition pending that decision.
40
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
MAUREEN SCOTT FRANCO
Federal Public Defender
BRADFORD W. BOGAN
Assistant Federal Public Defender
Counsel of Record
OFFICE OF THE FEDERAL
PUBLIC DEFENDER
WESTERN DISTRICT OF TEXAS
Counsel for Petitioner
August 21, 2025
Appendix
TABLE OF CONTENTS
United States v. Thomas,......................................................... 1a–2a
No. 24-50366,
(5th Cir. May 23, 2025) (per curiam) (unpublished)
Case: 24-50366
Document: 75-1
Page: 1
Date Filed: 05/23/2025
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 24-50366
Summary Calendar
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FILED
May 23, 2025
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Cornell Thomas,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:23-CR-212-1
______________________________
Before Elrod, Chief Judge, and Haynes, and Duncan, Circuit Judges.
Per Curiam: *
Cornell Thomas pleaded guilty to possession of a firearm after a felony
conviction, and he was sentenced to 60 months’ imprisonment, followed by
three years of supervised release. On appeal, he renews his arguments that
18 U.S.C. § 922(g)(1), both on its face and as applied to him, violates the
Commerce Clause and the Second Amendment in light of the test set forth
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Case: 24-50366
Document: 75-1
Page: 2
Date Filed: 05/23/2025
No. 24-50366
in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). He
further contends that the as-applied analysis outlined by this court in United
States v. Diaz, 116 F.4th 458, 467-71 (5th Cir. 2024), petition for cert. filed
(U.S. Feb. 18, 2025) (No. 24-6625), is wrong. The Government moves for
summary affirmance or, in the alternative, for an extension of time to file its
brief. Thomas does not oppose the Government’s motion, conceding that
his arguments are foreclosed.
Thomas’s arguments are indeed foreclosed. See United States v.
Giglio, 126 F.4th 1039, 1042-46 (5th Cir. 2025); Diaz, 116 F.4th at 471-72;
United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020); United States v.
Boche-Perez, 755 F.3d 327, 334 (5th Cir. 2014). Because the Government’s
position “is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case,” summary affirmance is appropriate.
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment of the district court is AFFIRMED. The Government’s
alternative motion for an extension of time to file its brief is DENIED.
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