Petition for Writ of Certiorari — Taylor Dan Truex, Petitioner v. United States

No. 25-

TAYLOR DAN TRUEX, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

MAUREEN SCOTT FRANCO

Federal Public Defender

KRISTIN M. KIMMELMAN

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_Kimmelman@fd.org

(210) 472-6700

Counsel for Petitioner

i

QUESTIONS PRESENTED

Below, petitioner challenged the constitutionality of 18 U.S.C.

§ 922(g)(1), which makes it a crime for a person convicted of a felony

to possess a firearm. He argued that § 922(g)(1)’s permanent

disarmament violates the Second Amendment right to keep and

bear arms both facially and as applied to him. The court of appeals

affirmed. It relied on a tradition of capital punishment and

permanent estate forfeiture to hold that § 922(g)(1) is constitutional

on its face. For the as-applied challenge, the court of appeals did not

analyze whether there is a historical tradition of permanently

disarming someone with a non-violent criminal history like

petitioner’s. Instead, it relied on a historical tradition of prohibiting

people who are serving sentences, such as supervised release, from

possessing a firearm—even though § 922(g)(1) does not criminalize

the possession of a firearm by someone serving a sentence. The

questions presented are:

1. Does § 922(g)(1) violate the Second Amendment facially?

2. To determine the constitutionality of § 922(g)(1) as applied to

a defendant, must courts examine whether there is a

historical tradition permanently disarming a person with

analogous convictions instead of relying on a historical

tradition disarming someone serving a sentence?

ii

RELATED PROCEEDINGS

United States District Court for the Western District of Texas:

United States v. Taylor Dan Truex, No. 7:23-cr-172-1 (Mar. 13,

2024) (judgment of conviction)

United States Court of Appeals for the Fifth Circuit:

United States v. Taylor Dan Truex, No. 24-50199 (May 28,

2025)

iii

TABLE OF CONTENTS

Questions presented ......................................................................... i

Related proceedings ......................................................................... ii

Table of contents ............................................................................. iii

Table of authorities ...........................................................................v

Introduction.......................................................................................1

Opinion below....................................................................................4

Jurisdiction........................................................................................5

Constitutional and statutory provisions involved...........................5

Statement ..........................................................................................5

A. Legal background. .........................................................5

B. Proceedings below. ...................................................... 11

Reasons for granting the petition ................................................. 15

I.

The courts of appeals are deeply divided over the scope of

a fundamental constitutional right. ................................. 15

II. The decision below is wrong and conflicts with this

Court’s precedent. .............................................................. 25

A. Section 922(g)(1) is facially unconstitutional because

it imposes an unprecedented lifetime ban on firearm

possession. .................................................................. 26

B. For the as-applied challenge, the court of appeals

impermissibly looked beyond prior felony convictions

and instead relied on the historical tradition of

disarming a person serving a sentence—which

§ 922(g)(1) does not criminalize. ............................... 32

III. This is a critically important and recurring question. .... 36

iv

IV. This case is an ideal vehicle for addressing this question.

............................................................................................ 38

Conclusion ...................................................................................... 39

Appendix

Court of appeals opinion (May 28, 2025) ................................ 1a–2a

v

TABLE OF AUTHORITIES

Cases

Barrett v. United States,

423 U.S. 212 (1976) ...................................................................... 7

Binderup v. Attorney General,

836 F.3d 336 (3d Cir. 2016) (en banc) ......................................... 10

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................................ 8–9, 25

Kanter v. Barr, 919 F.3d 437

(7th Cir. 2019) ........................................................ 5, 9, 14, 31–32

Lewis v. United States,

445 U.S. 55 (1980) .................................................................. 7, 27

NYSRPA v. Bruen,

597 U.S. 1 (2022) ...................... 1, 3, 10–11, 20, 25–28, 30–31, 33

Range v. Attorney General,

124 F.4th 218 (3d Cir. 2024) (en banc) ....................................... 17

Rehaif v. United States,

588 U.S. 225 (2019) .................................................................... 36

Scarborough v. United States,

431 U.S. 563 (1977) ...................................................................... 7

TikTok v. Garland,

145 S. Ct. 57 (2025) .................................................................... 34

Tot v. United States,

319 U.S. 463 (1943) ...................................................................... 6

United States v. Bullock,

123 F.4th 183 (5th Cir. 2024) ............................................... 24, 27

vi

United States v. Diaz,

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

cert. denied, No. 24-6625 (U.S. June 23, 2025) ............................

13–14, 23–25, 27– 32

United States v. Duarte,

101 F.4th 657 (9th Cir. 2024),

reh’g en banc granted, opinion vacated,

108 F.4th 786 (9th Cir. 2024) ..................................................... 21

United States v. Duarte,

137 F.4th 743

(9th Cir. (en2025) (en banc) ................................................ 21–22

United States v. Dubois,

139 F.4th 887 (11th Cir. 2025) ............................................. 22–23

United States v. Eichman,

496 U.S. 310 (1990)..................................................................... 35

United States v. Focia,

869 F.3d 1269 (11th Cir. 2017) ..................................................... 9

United States v. Gay,

98 F.4th 843 (7th Cir. 2024) ....................................................... 20

United States v. Giglio,

126 F.4th 1039 (5th Cir. 2024) ............................................. 15, 24

United States v. Goins,

118 F.4th 794 (6th Cir. 2024) ...................................................... 19

United States v. Grace,

461 U.S. 171 (1983)..................................................................... 35

United States v. Hunt,

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

cert. denied,

No. 24-6818 (U.S. June 2, 2025) ................................................. 18

vii

United States v. Jackson,

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

reh’g en banc denied,

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

cert. denied,

No. 24-6517 (U.S. May 19, 2025).......................................... 20–21

United States v. Kimble,

142 F.4th 308 (5th Cir. 2025) ..................................................... 14

United States v. Miller,

307 U.S. 174 (1939)....................................................................... 7

United States v. Moore,

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

cert. denied,

No. 24-968 (U.S. June 30, 2025) ........................................... 18–19

United States v. Moore,

666 F.3d 313 (4th Cir. 2012) ......................................................... 9

United States v. Rahimi,

602 U.S. 680 (2024) ............................ 2, 10–11, 25, 28–30, 32–34

United States v. Salerno,

481 U.S. 739 (1987) .................................................................... 32

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) ................................................ 19, 30

Vincent v. Bondi,

127 F.4th 1263 (10th Cir. 2025), pet. for cert. pending, No. 241155 (U.S.)................................................................................... 22

Williams v. Illinois,

399 U.S. 235 (1970)..................................................................... 34

Zherka v. Bondi,

140 F.4th 68 (2d Cir. 2025) ......................................................... 16

viii

Constitutional Provisions

U.S. Const. amend. II ............................................................ 5–8, 32

Statutes

An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87342, 75 Stat. 757 (1961) ............................................................... 8

Federal Firearms Act, 52 Stat. 1250 (1938) .................................... 6

Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No.

90-351, 82 Stat. 197 ..................................................................... 8

18 U.S.C. § 3583(b)(1) .................................................................... 35

18 U.S.C. § 922(g)(1) ............. i, 1–5, 9, 12–13, 15–29, 32– 33, 35–38

18 U.S.C. § 922(g)(8) ...................................................................... 30

21 U.S.C. § 841(a)(1) ...................................................................... 12

21 U.S.C. § 841(b)(1)(C) ................................................................. 12

28 U.S.C. § 1254(1) .......................................................................... 5

Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65 ................... 28

Other Authorities

Adam Winkler, Heller’s Catch-22,

56 UCLA L. REV. 1551 (2009) ....................................................... 5

David T. Courtwright,

A Century of American Narcotics Policy,

in Treating Drug Problems (1992) ............................................ 14

Dep’t of Justice, Bureau of Justice Statistics, Mark A. Motivans,

Federal Justice Statistics, 2022 (Jan. 2024) ............................. 37

ix

Dep’t of Justice,

Bureau of Justice Statistics, Sean Rosenmerkel et al.,

Felony Sentences in State Courts, 2006—Statistical Tables (rev.

Nov. 2010) ................................................................................... 37

Dru Stevenson,

In Defense of Felon-in-Possession Laws,

43 CARDOZO L. REV. 1573 (2022) ............................................... 37

Federal Firearms Act: Hearings Before the Subcomm. to

Investigate Juvenile Delinq. of the Sen. Comm. on the Judiciary,

89th Cong. 41 (1965) ..................................................................... 6

Kathryn Preyer,

Crime and Reform in Post-Revolutionary Virginia,

1 LAW & HIST. REV. 53, 73 (1983) ............................................... 28

Laura E. Randa,

Society’s Final Solution: A History and Discussion of the Death

Penalty (Univ. Press Am. Inc., 1997) ......................................... 14

S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112,

2169 ............................................................................................... 7

U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms

Offenses (June 2024) .................................................................. 36

United States v. Hernandez,

No. 25-5421 (U.S.)....................................................................... 38

United States v. Stevens,

No. 25-5027 (U.S.)....................................................................... 38

Vincent v. Bondi,

No. 24-1155 (U.S.) ....................................................................... 38

1

TAYLOR DAN TRUEX, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Taylor Dan Truex, respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Fifth Circuit.

INTRODUCTION

This Court’s decision in NYSRPA v. Bruen, 597 U.S. 1 (2022),

brought about a sea change in Second Amendment jurisprudence.

In Bruen’s wake, the courts of appeals considered renewed

constitutional challenges to the federal felon-in-possession statute,

18 U.S.C. § 922(g)(1). They reached dramatically divergent results.

A panel of the Third Circuit at first held that felons were excluded

from “the people” protected by the Second Amendment, but the en

2

banc court applied Bruen’s text-and-history analysis and held that

§ 922(g)(1) was unconstitutional as applied to an individual with a

non-violent predicate conviction. A panel of the Ninth Circuit

similarly held that the statute violated the Second Amendment as

applied to someone with non-violent offenses before vacating that

decision en banc. The Fourth and Seventh Circuits assumed that

as-applied challenges to § 922(g)(1) were available in at least some

circumstances. By contrast, the Eighth, Tenth, and Eleventh

Circuits all upheld § 922(g)(1) with no need for felony-by-felony

determinations, although those courts disagreed about whether a

historical analysis was required.

The Court’s decision in United States v. Rahimi, 602 U.S. 680

(2024), did little to quell the confusion. The courts of appeals

continue to be deeply divided after Rahimi. The Third, Fifth, and

Sixth Circuits each acknowledge that § 922(g)(1) is vulnerable to

as-applied challenges. The Eighth Circuit, however, has reaffirmed

its conclusion that history supports applying § 922(g)(1) across the

board with no need for felony-by-felony analysis. The Tenth and

Eleventh Circuits continue to uphold the statute in all applications

based on dicta from this Court instead of the historical analysis

that Bruen demands. The Fourth Circuit refuses to consider asapplied challenges on several grounds, including that felons are not

3

among “the people” protected by the Second Amendment. And the

en banc Ninth Circuit, as well as the Second Circuit, recently held

that there is a history of disarming certain classes of individuals

that supports applying § 922(g)(1) to all felons.

In short, the Fifth Circuit’s decision below continues to deepen

an intractable conflict in the courts of appeals over the scope of a

fundamental right. And the Fifth Circuit’s decision is wrong.

Section 922(g)(1) is a mid-20th century innovation drafted when

Congress believed—incorrectly—that the Second Amendment does

not protect an individual right to bear arms. So Congress made no

effort to pass a law that was “consistent with the Nation’s historical

tradition of firearm regulation.” Bruen, 597 U.S. at 24. Rather, it

passed a sweeping ban that is irreconcilable with our history and

tradition.

Section 922(g)(1) is facially unconstitutional because its lifetime

prohibition on gun possession imposes a historically unprecedented

burden on the right to bear arms. No historical firearm law imposed

permanent disarmament. And the justification behind § 922(g)(1)—

disarming a broad group of potentially irresponsible individuals—

also fails historical scrutiny. At most, our history shows a tradition

of disarming violent individuals who threaten armed insurrection

or pose a present physical threat to others. So, at the very least,

4

§ 922(g)(1) is unconstitutional as applied to individuals like Truex

who were previously convicted of non-violent crimes. And the Fifth

Circuit’s decision that Truex 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.

These questions are critically important. Section 922(g)(1) is

one of the most commonly charged federal offenses. Uncertainty

about whether the statute is constitutional affects thousands of

criminal cases each year. Even more concerning, § 922(g)(1)

categorically and permanently prohibits millions of Americans—

the vast majority of whom have non-violent convictions—from

exercising their right to keep and bear arms.

This Court’s intervention is urgently needed to resolve the

scope of a fundamental constitutional right. After Rahimi, the

confusion among the courts of appeals has only deepened. This

question will not go away, and this is an ideal vehicle to resolve it.

The Court should grant certiorari.

OPINION BELOW

A copy of the unpublished opinion of the court of appeals,

United States v. Truex, No. 24-50199 (5th Cir. May 28, 2025) (per

curiam), is reproduced at App. 1a–2a.

5

JURISDICTION

The Fifth Circuit entered its judgment on May 28, 2025. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Second Amendment provides: “A well regulated Militia,

being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed.”

Section 922(g)(1) of Title 18 of the United States Code provides:

“It shall be unlawful for any person … who has been convicted in

any court of, a crime punishable by imprisonment for a term

exceeding one year … to … possess in or affecting commerce, any

firearm or ammunition.”

STATEMENT

A.

Legal background.

1. “Founding-era legislatures did not strip felons of the right to

bear arms simply because of their status as felons.” Kanter v. Barr,

919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting). Indeed,

“[b]ans on ex-felons possessing firearms were first adopted in the

1920s and 1930s, almost a century and a half after the Founding.”

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

6

Firearms Act, ch. 850, § 2(f), 52 Stat. 1250, 1251 (1938). But that

statute was much narrower than the modern version. The Federal

Firearms Act only applied to someone “convicted of a crime of

violence,” id., which included “murder, manslaughter, rape,

mayhem, kidnaping, burglary, housebreaking,” and certain kinds of

aggravated assault, id. § 1(6). The Act prohibited an individual with

such a conviction from “receiv[ing]” a firearm, and it considered

possession to be “presumptive evidence” of receipt. 1 Id. § 2(f).

2. It was not until the 1960s that the federal felon-in-possession

statute took on its modern form. At the time, Congress shared a

widely

held—but

incorrect—understanding

of

the

Second

Amendment. In committee testimony, the Attorney General assured

Congress that “[w]ith respect to the second amendment, the

Supreme Court of the United States long ago made it clear that the

amendment did not guarantee to any individuals the right to bear

arms” and opined that “the right to bear arms protected by the

second amendment relates only to the maintenance of the militia.”

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

1 This possession-based presumption was short-lived. A few years

later, this Court invalidated the presumption on due process grounds. Tot

v. United States, 319 U.S. 463, 467 (1943).

7

federal firearm regulations, explaining that the Second Amendment

posed “no obstacle” because federal regulations did not “hamper the

present-day militia.” S. Rep. No. 90-1097 (1968), reprinted in 1968

U.S.C.C.A.N. 2112, 2169. Congress relied on court decisions—

including United States v. Miller, 307 U.S. 174 (1939)—which held

that the Second Amendment “was not adopted with the individual

rights in mind.” Id.

Unconstrained by the Second Amendment, “Congress sought to

rule broadly,” employing an “expansive legislative approach” to

pass a “sweeping prophylaxis … against misuse of firearms.”

Scarborough v. United States, 431 U.S. 563, 572 (1977) (first

quote); Lewis v. United States, 445 U.S. 55, 61, 63 (1980) (second

and third quotes). In particular, Congress was concerned with

keeping firearms out of the hands of broad categories of

“potentially irresponsible persons, including convicted felons.”

Barrett v. United States, 423 U.S. 212, 220 (1976). So it enacted

two significant changes that brought about the modern felon-inpossession ban. First, Congress expanded the Federal Firearms

Act to prohibit individuals convicted of any crime “punishable by

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

8

(1961). Second, a few years later, Congress criminalized possession

of a firearm—not just receipt—by anyone with a felony conviction.

See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L.

No. 90-351, § 1202(a)(1), 82 Stat. 197, 236.

3. In its seminal decision in District of Columbia v. Heller, this

Court held for the first time that the Second Amendment codifies

an individual right to keep and bear arms—a right that is not

limited to militia service. 554 U.S. 570, 579–600 (2008). In reaching

this conclusion, the Court conducted a “textual analysis” of the

Second Amendment’s language and surveyed the Amendment’s

“historical background.” Id. at 578, 592. The Court had “no doubt,

on the basis of both text and history, that the Second Amendment

conferred an individual right to keep and bear arms.” Id. at 595.

Relying on the historical understanding of the Amendment,

however, the Court recognized that “the right secured by the Second

Amendment is not unlimited.” Id. at 626. The Court identified

several

“longstanding”

and

“presumptively

lawful”

firearm

regulations, such as prohibitions on felons possessing firearms. Id.

at 626–27 & n.27. But the Court cautioned that it was not

“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

9

there would be “time enough to expound upon the historical

justifications for the[se] exceptions … if and when those exceptions

come before us.” Id. at 635. The Court then turned to the District of

Columbia handgun ban at issue, finding that it was historically

unprecedented and thus violated the Second Amendment. Id. at

629, 631–35.

Following Heller, the courts of appeals coalesced around a twostep framework for analyzing Second Amendment challenges that

focused on the historical scope of the Second Amendment at step

one and applied means-ends scrutiny at step two. See, e.g., Kanter,

919 F.3d at 441–42; United States v. Focia, 869 F.3d 1269, 1285

(11th Cir. 2017). And this Court’s recognition that the Second

Amendment protects an individual right to bear arms brought

renewed constitutional challenges to § 922(g)(1). But the courts of

appeals almost uniformly rejected Second Amendment challenges

to the statute, either applying means-ends scrutiny or relying on

Heller’s “presumptively lawful” language. See, e.g., United States v.

Moore, 666 F.3d 313, 316–17 (4th Cir. 2012) (collecting cases). The

lone exception was the Third Circuit, which held that § 922(g)(1)

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

10

them of their Second Amendment rights.” Binderup v. Attorney

General, 836 F.3d 336, 351–57 (3d Cir. 2016) (en banc).

4. Then came Bruen. In Bruen, this Court held that the twostep framework adopted by the courts of appeals was “one step too

many.” 597 U.S. at 19. Instead, the Court explained that Heller

demanded a test “centered on constitutional text and history.” Id.

at 22. Under this test, “when the Second Amendment’s plain text

covers an individual’s conduct, the Constitution presumptively

protects that conduct.” Id. at 17. “The government must then

justify its regulation by demonstrating that it is consistent with

the Nation’s historical tradition of firearm regulation.” Id. at 24.

“Only then may a court conclude that the individual’s conduct falls

outside the Second Amendment’s unqualified command.” Id.

(cleaned up).

Bruen—and the Court’s later decision in Rahimi—explain that

“the appropriate analysis involves considering whether the

challenged regulation is consistent with the principles that

underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. “A

court must ascertain whether the new law is ‘relevantly similar’ to

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

11

not be a “historical twin,” but analogical reasoning is also not a

“regulatory blank check.” Bruen, 597 U.S. at 30. “How” and “why”

the regulations burden the right to bear arms are central to this

inquiry. Bruen, 597 U.S. at 29; Rahimi, 602 U.S. at 692. These

considerations ask whether the modern and historical regulations

impose a “comparable burden” (the how) and “whether that burden

is comparably justified” (the why). Bruen, 597 U.S. at 29. “Even

when a law regulates arms-bearing for a permissible reason, … it

may not be compatible with the right if it does so to an extent

beyond what was done at the founding.” Rahimi, 602 U.S. at 692.

B.

Proceedings below.

1. In 2013, when Truex was 19 years old, he was convicted of

possessing a controlled substance, hallucinogenic mushrooms.

C.A. ROA.186. His 10-year sentence was suspended to 5 years’

probation, but a revocation proceeding in 2017 resulted in a 3-year

sentence of imprisonment. Id. at 186. A year later, he was convicted

of possessing a firearm as a felon. Id. at 188; see § 922(g)(1). He

was sentenced to 33 months’ imprisonment and a 3-year term of

supervised release. C.A. ROA.188. After a 2021 revocation

proceeding, Truex was sentenced to 18 months’ imprisonment and

18 months of supervised release. Id. at 188.

12

In August 2023, while he was serving his term of supervised

release, law enforcement officers used a cooperating source to buy

methamphetamine from Truex in Midland, Texas. C.A. ROA.177.

When officers later arrested Truex, they saw a Glock 23 .40 caliber

handgun in plain view in the driver seat of Truex’s truck, and they

found more methamphetamine. Id. at 178.

2. Truex was indicted for being a felon in possession of a

firearm, in violation of § 922(g)(1), and possessing actual

methamphetamine with the intent to distribute it, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(C). C.A. ROA.8. Truex moved to

dismiss the § 922(g) count. Id. at 29–63. He argued that § 922(g)(1)

facially violates the Second Amendment under Bruen’s text-andhistory test. Id. at 29–53. In the alternative, he argued that

§ 922(g)(1) is unconstitutional as applied to him because there is

not a historical tradition of permanently disarming a person with

analogous criminal history. Id. at 54–56.

The district court denied Truex’s motion to dismiss without explanation, relying instead on orders it had entered in other cases.

C.A. ROA.92. Truex pleaded guilty to the indictment. Id. at 100–

01, 157. The court sentenced him to 188 months’ imprisonment on

the drug count and 180 months’ imprisonment on the firearm

13

count, to run concurrently with each other. Id. at 107. The court

also imposed three years of supervised release. Id. at 108.

3. On appeal, Truex 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. June 23, 2025). Diaz, as the seminal Fifth

Circuit case applying Bruen and Rahimi’s analyses to § 922(g)(1),

established three points: (1) “felons” are part of “the people,” and

thus § 922(g)(1) is presumptively unconstitutional, id. at 466–67;

(2) § 922(g)(1) is facially constitutional, id. at 471–72; and (3)

§ 922(g)(1) was constitutional as-applied to Diaz because—when

considering only his prior convictions—his prior felony for vehicle

theft was relevantly similar to the Founding-era crime of horse

theft, which was punishable by death or estate forfeiture, id. at

467, 469–70.

Truex 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), Truex

argued that his prior, non-violent felony convictions were not

relevantly similar to crimes during the Founding era that were

14

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, there were no Foundering-era laws permanently

disarming someone for possessing a controlled substance.

Substances like hallucinogenic mushrooms were not controlled

during the Founding era, so possessing them was not a crime.

David T. Courtwright, A Century of American Narcotics Policy, in

Treating Drug Problems at 1 (1992) (noting that until roughly 100

years ago, “there was virtually no effective regulation of narcotics

in the United States”). Crimes that were punished by death or

estate forfeiture—generally, “arson, piracy, treason, murder,

sodomy, burglary, robbery, rape, horse-stealing, slave rebellion,

and often counterfeiting”—are not remotely analogous to

possessing a controlled substance. Laura E. Randa, Society’s Final

Solution: A History and Discussion of the Death Penalty 4 (Univ.

Press Am. Inc., 1997); see United States v. Kimble, 142 F.4th 308,

313–14 (5th Cir. 2025) (rejecting historical laws of theft, receipt of

15

stolen property, and counterfeiting as relevantly similar to modern

drug-trafficking laws).

The Fifth Circuit affirmed. App. 1a–2a. The court held that its

recent precedent foreclosed Truex’s facial challenge to § 922(g)(1).

App. 2a. Then, rather than addressing his as-applied challenge by

examining

whether

Truex’s

prior

felony

convictions

were

relevantly similar to historical analogues, the court held that

“because he was on supervised release when he violated

§ 922(g)(1), his as-applied challenge under the Second Amendment

is similarly foreclosed.” App. 2a (citing United States v. Giglio, 126

F.4th 1039, 1043–46 (5th Cir. 2024) (rejecting as-applied challenge

to § 922(g)(1) because, at the time of his conviction, Giglio was

serving a sentence for a prior conviction)).

REASONS FOR GRANTING THE PETITION

I.

The courts of appeals are deeply divided over the

scope of a fundamental constitutional right.

The courts of appeals are deeply divided over how to analyze

Second Amendment challenges to § 922(g)(1). Some circuits see no

need to conduct the text-and-history analysis required by Bruen,

relying instead on this Court’s dicta that felon-in-possession

prohibitions are presumptively lawful. Others apply Bruen’s textand-history framework but reach dramatically different results.

16

Examining the text, the circuits disagree about whether felons are

part of “the people” protected by the Second Amendment. And in

analyzing the historical evidence, the circuits are split over which

traditions justify § 922(g)(1), whether the statute is vulnerable to

as-applied challenges, and (if so) what standard to apply.

1. The Second Circuit recently rejected a facial challenge to

§ 922(g)(1), holding that its pre-Bruen precedent, which upheld

§ 922(g)(1) based on the assurances in Heller and McDonald that

“‘longstanding prohibitions on the possession of firearms by felons”

are presumptively constitutional,’ … survives Bruen.” Zherka v.

Bondi, 140 F.4th 68, 74 (2d Cir. 2025) (cleaned up). Turning to the

as-applied challenge, the Second Circuit found that the defendant,

despite being a felon, remained part of “the people.” Id. at 76–77.

But under Bruen’s second step, the court rejected a case-by-case

approach to determine if certain nonviolent felonies exempted a

person from prosecution under § 922(g)(1), id. at 95–96, and found

that, “[l]ike § 922(g)(1), laws from seventeenth century England, the

American Colonies, and the early United States, establish that it

has long been permissible to regulate firearms possession through

legislative

proscription

on

a

class-wide

basis,

without

a

particularized finding that the individuals disarmed pose a threat

to society.” Id. at 78–79.

17

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 statusbased restrictions, emphasizing that founding-era laws disarmed

distrusted groups—like loyalists, Native Americans, religious

minorities, and Black Americans—based on fear of rebellion. Id. at

229–30. The court also dismissed the government’s “dangerousness”

principle, which would encompass even non-violent offenders, as

“far too broad.” Id. at 230 (cleaned up). Finally, the court rejected

the government’s reliance on capital punishment and forfeiture,

explaining that “the Founding-era practice of punishing some

nonviolent crimes with death does not suggest that the particular

(and distinct) punishment at issue here—de facto lifetime

disarmament for all felonies and felony-equivalent misdemeanors—

is rooted in our Nation’s history and tradition.” Id. at 230–31.

However, the court subsequently held that a prosecution under

18

§ 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. June 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. June 2, 2025). The court provided two alternative grounds for

this conclusion. First, it held that it remained bound by its preBruen precedent foreclosing as-applied challenges to § 922(g)(1). Id.

at 702–04. Those earlier cases, in turn, relied on Heller’s statement

that felon-in-possession bans are “presumptively lawful” and its

reference to “law-abiding” citizens. Id. at 703. Second, the court held

that as-applied challenges to § 922(g)(1) fail both steps of Bruen’s

text-and-history test. Id. at 704. At the first step, the court held that

“the Second Amendment protects firearms possession by the lawabiding, not by felons.” Id. at 705. And at the second step, the court

concluded that legislatures could categorically disarm groups from

possessing firearms in a historical analysis mirroring the Eighth

Circuit’s discussed below. Id. at 705–08; see infra 20.

19

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 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).

20

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 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,”

21

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 aligned with the

Second, Fourth, Eighth, Tenth, and Eleventh circuits and held that

Ҥ 922(g)(1) is not unconstitutional as applied to non-violent

felons.” United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025).

The court relied on this Court’s repeated assurances that

prohibitions on the possession of a firearm by felons are

presumptively lawful and that Bruen and Rahimi did not disrupt

the

court’s

pre-Bruen

precedent

that

foreclosed

Second

Amendment challenges to § 922(g)(1). Id. at 750–52. It then

applied Bruen’s test to confirm its reading that no felony-by-felony

evaluation of § 922(g)(1) is required. Id. at 761. While the court

found that the conduct proscribed by § 922(g)(1) is covered by the

plain text of the Second Amendment, id., the court held that the

government met its burden under Bruen’s second step based on

historical evidence consistent with “two regulatory principles that:

22

(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 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

23

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 Third and Sixth Circuits in refusing to treat that language as

controlling. 2 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

2 The Fifth Circuit expressly rejected the Eleventh Circuit’s reliance

“solely upon Rahimi’s mention of Heller’s ‘felons and the mentally ill’

language in upholding the constitutionality of § 922(g)(1).” Diaz, 116 F.4th

at 466 n.2

24

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 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) 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

25

affirmed Truex’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 App. 2a. After all, this Court has

explained that “the people” “unambiguously refers to all members

of the political community,” so the right to keep and bear arms

belongs to “all Americans.” Heller, 554 U.S. at 580. But the Fifth

Circuit 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

26

facially, and why it burdens the right to bear arms dooms the

statute as applied to non-violent offenders like Truex. And the

Fifth Circuit’s conclusion that someone serving a term of

supervised release can be disarmed under § 922(g)(1) is divorced

from the plain text of the statute, which has nothing to do with

supervised release.

A.

Section 922(g)(1) is facially unconstitutional

because it imposes an unprecedented lifetime

ban on firearm possession.

1. Section 922(g)(1) facially violates the Second Amendment

because it imposes a sweeping, historically unprecedented lifetime

ban that prevents millions of Americans from possessing firearms

for self-defense. The government has not cited a single historical

gun law that imposed a permanent prohibition on the right to keep

and bear arms—even for self-defense. In other words, no historical

regulation “impose[s] a comparable burden on the right of armed

self-defense.” See Bruen, 597 U.S. at 29.

That is hardly surprising. When Congress passed the modern

felon-in-possession statute—four decades before Heller and more

than a half-century before Bruen—it did not believe that the Second

Amendment protected an individual right to keep and bear arms.

See supra 6–8. So Congress did not try to pass a law that aligned

with the “Nation’s historical tradition of firearm regulation.” See

27

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 F.4th at 469. But the court did not cite any historical

firearm regulation imposing permanent disarmament. 3 Instead,

the court relied on capital punishment and forfeiture laws as

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.

3

28

historical analogues justifying § 922(g)(1). Id. at 467–68. That

reliance conflicts with this Court’s precedent in three ways. 4

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

(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

4 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).

29

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

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

30

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

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

31

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

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

32

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. For the as-applied challenge, the court of appeals

impermissibly looked beyond prior felony convictions and instead relied on the historical tradition of disarming a person serving a sentence—

which § 922(g)(1) does not criminalize.

1. Even if § 922(g)(1) is facially constitutional, the statute

violates the Second Amendment as applied to individuals like

Truex 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 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.,

33

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”).

So the Fifth Circuit instead relied on a circumstance that

§ 922(g)(1) does not criminalize—the fact that Truex was on

supervised release when he possessed the firearm. 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. Truex 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 Truex

committed—possession of hallucinogenic mushrooms and felon-inpossession—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 Truex could constitutionally be

disarmed. See Rahimi, 602 U.S. 690, 700–02 (because the

34

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”).

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

35

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 Truex because

he possessed a firearm after having been convicted of certain nonviolent felonies—not because of any other action he took or any

other personal detail about his background. Indeed, § 922(g)(1)

regulates the possession of a firearm by an individual who has

been convicted of a felony, not possession of a firearm by an

individual on supervised release (which is separately regulated,

see 18 U.S.C. § 3583(b)(1)). Whether prior non-violent convictions

for possessing a controlled substance or for possessing a firearm as

a felon is the question that ought to have been analyzed on appeal.

The

Fifth

Circuit’s

approach,

which

allows

extra-offense

characteristics and allows a wide range of potentially disqualifying

36

factors outside the conduct § 922(g)(1) regulates, is contrary to the

historical-tradition approach Bruen adopted and the longstanding

principles

observed

constitutionality

of

by

the

a

specific

Court

when

statute.

The

reviewing

Fifth

the

Circuit

significantly erred in choosing to analyze the constitutionality of

§ 922(g)(1) as applied to Truex 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 Truex’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: 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.

37

Even

beyond

new

prosecutions,

§ 922(g)(1)’s

reach

is

staggering. The statute prohibits millions of Americans from

exercising their right to keep and bear arms for the rest of their

lives. Recent estimates of the number of individuals with felony

convictions range from 19 million to 24 million. Dru Stevenson, In

Defense of Felon-in-Possession Laws, 43 CARDOZO L. REV. 1573,

1591 (2022) (citations omitted). And § 922(g)(1) is particularly

troubling because most of the individuals it prohibits from

possessing firearms are peaceful, with convictions for only nonviolent offenses. Less than 20% of state felony convictions and less

than 5% of federal felony convictions are for violent offenses. See

Dep’t of Justice, Bureau of Justice Statistics, Sean Rosenmerkel et

al., Felony Sentences in State Courts, 2006—Statistical Tables, at

3 (Table 1.1) (rev. Nov. 2010); Dep’t of Justice, Bureau of Justice

Statistics, Mark A. Motivans, Federal Justice Statistics, 2022, at

12 (Table 7) (Jan. 2024).

Given § 922(g)(1)’s widespread impact both on new prosecutions

and on the millions of non-violent Americans it prohibits from

exercising a fundamental constitutional right, this Court should

answer this important and recurring question as soon as possible.

38

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. Truex 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 three 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.); Vincent v.

Bondi, No. 24-1155 (U.S.); and United States v. Hernandez, No. 255421 (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 Truex’s petition

pending that decision.

39

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

MAUREEN SCOTT FRANCO

Federal Public Defender

KRISTIN M. KIMMELMAN

Assistant Federal Public Defender

Counsel of Record

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

WESTERN DISTRICT OF TEXAS

Counsel for Petitioner

August 25, 2025