Reply Brief — Cornell Thomas, Petitioner v. United States

No. 25-5477

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

REPLY BRIEF FOR PETITIONER

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

TABLE OF CONTENTS

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

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

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

ARGUMENT .....................................................................................2

I.

The courts of appeals are deeply divided over the scope of a

fundamental constitutional right. .............................................2

II. The Court should address whether § 922(g)(1) violates the

Second Amendment despite the Attorney General’s recent

revival of a discretionary avenue for restoring gun rights. .....9

III. The Government offers no meaningful argument against

addressing whether § 922(g)(1) is unconstitutional as applied

to Thomas. ............................................................................... 13

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

ii

TABLE OF AUTHORITIES

Cases

District of Columbia v. Heller,

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

Garland v. Range,

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

Jackson v. United States,

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

Logan v. United States,

552 U.S. 23 (2007) ...................................................................... 10

NYSRPA v. Bruen,

597 U.S. 1 (2022) ............................................................ 3–4, 8, 12

Pitsilides v. Barr,

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

Range v. Attorney General,

124 F.4th 218 (3d Cir. 2024) (en banc) .................................... 3–8

TikTok v. Garland,

604 U.S. 56 (2025) ...................................................................... 14

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) (per curiam) (unpublished) ............. 3–4

United States v. Connelly,

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

United States v. Diaz,

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

iii

United States v. Duarte,

108 F.4th 786 (9th Cir. 2024) ................................................... 1, 8

United States v. Duarte,

137 F.4th 743 (9th Cir. 2025) (en banc)................................... 3–6

United States v. Eichman,

496 U.S. 310 (1990) .................................................................... 14

United States v. Grace,

461 U.S. 171 (1983) .................................................................... 14

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) ......................................... 3–4, 6, 8

United States v. Kimble,

142 F.4th 308 (5th Cir. 2025) ..................................................... 15

United States v. Patino,

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

United States v. Rahimi,

602 U.S. 680 (2024) ............................................................ 8–9, 13

United States v. Williams,

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

Vincent v. Bondi,

127 F.4th 1263 (10th Cir. 2025) ........................................... 3–4, 8

Vincent v. Garland,

144 S. Ct. 2708 (2024) .................................................................. 8

Williams v. Illinois,

399 U.S. 235 (1970) .................................................................... 14

iv

Zherka v. Bondi,

140 F.4th 68 (2d Cir. 2025) .................................................. 3–4, 6

Statutes

18 U.S.C. § 922(g) ............................................................................ 9

18 U.S.C. § 922(g)(1) ................................................ 1–2, 5, 7–11, 13

18 U.S.C. § 922(g)(3) ........................................................................ 9

18 U.S.C. § 925(c) ..................................................................... 10–13

Other Authorities

Government Brief,

United States v. Rahimi,

No. 22-915 (U.S. Aug. 14, 2023) ................................................ 12

Granting of Relief; Federal Firearms Privileges,

90 Fed. Reg. 17,835 (Apr. 29, 2025)............................................11

Order Sua Sponte Rehearing En Banc,

United States v. Bost,

No. 24-1719 (3d Cir. Oct. 31, 2025) ............................................. 7

S. Rep. 102-353 (1992) ................................................................... 13

Transcript of Oral Argument,

United States v. Rahimi,

No. 22-915 (U.S. Nov. 7, 2023). .................................................. 13

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

Firearms Offenses (2024) ............................................................ 9

Withdrawing the Attorney General’s Delegation of Authority,

90 Fed. Reg. 13,080 (Mar. 20, 2025) .......................................... 10

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

REPLY BRIEF FOR PETITIONER

INTRODUCTION

The Government concedes that the courts of appeals are divided over how to analyze constitutional challenges to 18 U.S.C.

§ 922(g)(1). 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.

2

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 Thomas—as well as countless Americans prosecuted under § 922(g)(1)—and cannot cure the statute’s constitutional defects. And the Government’s lackluster arguments that

§ 922(g)(1) is constitutional as applied to nonviolent offenders invite, rather than weight against, granting certiorari.

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

I.

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

over how to analyze Second Amendment challenges to § 922(g)(1),

but it deems the disagreement “shallow.” BIO 2. Not so. The split

is deepening and requires this Court’s intervention.

3

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. 17–26. 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

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

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

See Zherka v. Bondi, 140 F.4th 68, 78–79 (2d Cir. 2025); 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, 748 (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. 2410877, 2025 WL 339894, at *4 (11th Cir. Jan. 30, 2025) (per curiam) (unpublished).

4

And the courts of appeals are divided over important underlying issues relevant to the Second Amendment analysis. See Pet.

24–26.

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 Second, Eighth, and Ninth Circuits have conducted a

historical analysis that are “consistent with,” “support[ ],” or “confirm[ ]” Heller’s statements. Zherka, 140 F.4th at 93–94; 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.

5

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 Second, 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

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

6

Zherka, 140 F.4th at 87; 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 whether someone can show that they are “not dangerous.” Williams, 113 F.4th at 657. And a court evaluating dangerousness

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.

7

“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). Yet the

Third Circuit, for now, 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). The en

banc Third Circuit recently requested briefing, however, on

whether courts can “consider evidence beyond defendants’ predicate convictions” when analyzing as-applied challenges to

§ 922(g)(1). Order, Sua Sponte Rehearing En Banc, United States

v. Bost, No. 24-1719 (3d Cir. Oct. 31, 2025).

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

stage of the Second Amendment analysis are deep.

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 2–3. Just the opposite. The deepening division since this Court denied review shows

8

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 has 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,

9

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 questions

Thomas 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 address whether § 922(g)(1) violates

the Second Amendment 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

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-922g-firearms#:~:text=Population%20Snapshot,handout%20or%20learn%20more%20below.

10

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 irrelevant to thousands of individuals—including Thomas—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 Thomas. Beginning in 1992, § 925(c) was “rendered inoperative”

because Congress prohibited using appropriated funds to 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

11

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, Thomas 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.

3 The Government claims that “Congress has addressed [constitu-

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

12

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 concealedcarry 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

13

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 of 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 offers no meaningful argument

against

addressing

whether

§ 922(g)(1)

is

unconstitutional as applied to Thomas.

Finally, the Government argues that § 922(g)(1) “does not raise

any constitutional concerns as applied to [Thomas,]” for two reasons. First: because Thomas was on parole when he possessed the

14

firearm. BIO 2. The Government does not substantively engage

with this rationale for permanent disarmament. Instead, the Government merely notes that three other circuits agree with the Fifth

Circuit on this point. BIO 2–3. It avoids engaging 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. 33–37; 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).

Second, the Government argues that Thomas’s as-applied

challenge would fail in any circuit, given that he possessed cocaine

base at the same time he possessed the firearm in this case, and

because of his prior convictions for possessing cocaine and

possessing cocaine with intent to distribute. BIO 3. But as with its

argument regarding Thomas’s parole status, the Government

ignores the fact that § 922(g)(1) does not criminalize the conduct

the Government relies on: simultaneous possession of a firearm

and a controlled substance. And the Government also ignores the

fact that Thomas’s sole conviction for possession of cocaine with the

intent to distribute was not offered as part of the factual basis for

his guilty plea in this case. Instead, the Government cited only two

15

of Thomas’s prior convictions for felony simple possession of

cocaine. See United States v. Kimble, 142 F.4th 308, 316 (5th Cir.

2025) (distinguishing between historical support for disarming

drug traffickers and lack of historical support for disarming

marijuana users).

The Government’s arguments therefore raise no obstacle to

reaching the question presented in this case, and no reason not to

do so.

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

November 13, 2025