Petition for Writ of Certiorari — Jason Daniel Carbajal, Petitioner v. United States

No. 25-

JASON DANIEL CARBAJAL, 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 Jason Daniel Carbajal 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 held that colonial-era laws punished theft

severely, so § 922(g)(1) is constitutional as applied to Carbajal, who

has a prior aggravated robbery conviction, even though none of his

prior convictions involved misuse of a firearm. The questions

presented are:

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

2. Does § 922(g)(1) violate the Second Amendment as applied to

individuals with convictions for offenses that did not involve

the misuse of firearms or establish a credible threat of such

misuse?

ii

RELATED PROCEEDINGS

United States District Court for the Western District of Texas:

United States v. Jason Daniel Carbajal, No. 7:23-cr-103-1 (Feb.

12, 2024) (judgment of conviction)

United States Court of Appeals for the Fifth Circuit:

United States v. Jason Daniel Carbajal, No. 24-50107 (June 2,

2025)

iii

TABLE OF CONTENTS

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

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

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

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

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

Opinion below....................................................................................3

Jurisdiction........................................................................................3

Constitutional and statutory provisions involved...........................3

Statement ..........................................................................................4

A. Legal background. .........................................................4

B. Proceedings below. ..................................................... 10

Reasons for granting the petition ................................................. 12

I.

The courts of appeals are deeply divided over the scope of

a fundamental constitutional right. ................................. 12

II. The decision below is wrong and conflicts with this

Court’s precedent. .............................................................. 18

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

it imposes an unprecedented lifetime ban on firearm

possession. .................................................................. 19

B. Section 922(g)(1) is unconstitutional as applied to

individuals convicted of offenses that did not involve

misuse of firearms or establish a credible threat of

such misuse. ............................................................... 24

III. This critically important and recurring question is cleanly

presented in Carbajal’s case. ............................................ 28

iv

Conclusion ...................................................................................... 30

Appendix

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

v

TABLE OF AUTHORITIES

Cases

Barrett v. United States,

423 U.S. 212 (1976) ...................................................................... 6

Binderup v. Attorney General,

836 F.3d 336 (3d Cir. 2016) (en banc) ........................................... 8

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................................ 7–8, 16, 18, 19

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) ............................ 4, 7, 23, 25, 27–28

Lewis v. United States,

445 U.S. 55 (1980) .................................................................. 6, 19

NYSRPA v. Bruen,

597 U.S. 1 (2022) ........... 1–2, 8–11, 13, 16, 18– 20, 22, 23–25, 28

Range v. Attorney General,

124 F.4th 218 (3d Cir. 2024) (en banc) ................................. 14–15

Rehaif v. United States,

588 U.S. 225 (2019) .................................................................... 28

Scarborough v. United States,

431 U.S. 563 (1977) ...................................................................... 6

Tot v. United States,

319 U.S. 463 (1943) ...................................................................... 5

United States v. Bullock,

123 F.4th 183 (5th Cir. 2024) ............................................... 17, 20

United States v. Diaz,

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

cert. denied,

No. 24-6625 (U.S. June 23, 2025) ................ 11–12, 16–18, 20–23

vi

United States v. Duarte,

137 F.4th 743 (9th Cir. 2024) (en banc) ..................................... 14

United States v. Dubois,

139 F.4th 887 (11th Cir. 2025) ................................................... 12

United States v. Focia,

869 F.3d 1269 (11th Cir. 2017) ..................................................... 7

United States v. Gay,

98 F.4th 843 (7th Cir. 2024) ....................................................... 13

United States v. Hunt,

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

cert. denied, No. 24-6818 (U.S. June 2, 2025) ............................ 13

United States v. Jackson,

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

cert. denied, No. 24-6517 (U.S. May 19, 2025) ........................... 13

United States v. Miller,

307 U.S. 174 (1939)....................................................................... 6

United States v. Moore,

666 F.3d 313 (4th Cir. 2012) ......................................................... 8

United States v. Rahimi,

602 U.S. 680 (2024) .................. 2, 9, 11, 16, 18, 20–22, 24–25, 28

United States v. Salerno,

481 U.S. 739 (1987) .................................................................... 24

United States v. Schnur,

132 F.4th 863 (5th Cir. 2025) ..................................................... 12

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) .................................... 15–16, 22–23

Vincent v. Bondi,

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

pet. for cert. pending, No. 24-1155 (U.S.) ................................... 12

vii

Zherka v. Bondi,

140 F.4th 68 (2d Cir. 2025) ......................................................... 14

Constitutional Provisions

U.S. Const. amend. II ........................................................ 3, 5–7, 24

Statutes

18 U.S.C. § 922(g)(1) .................... i, 1–4, 8, 10–12, 14–21, 24, 28–30

18 U.S.C. § 922(g)(8) ...................................................................... 22

28 U.S.C. § 1254(1) .......................................................................... 3

Act of April 5, 1790, § 1, in 13 Penn. Stat. 511–12 ....................... 26

Act of Dec. 16, 1811, § 52, in A Compilation of the Laws of the

State of Georgia 149 (Lucius Q. C. Lamar, ed. 1821) ............... 27

Act of Dec. 18, 1781, ch. CCXC, in the Laws of the State of New

Jersey 229 (Peter Wilson, ed. 1784) .......................................... 27

Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65 ................... 27

Act of March 18, 1796, ch. XXXIV, in Laws of the State of New

Jersey 213 (Williams Paterson, ed. 1800) ................................. 27

Act of October 1795, 1 The Public Statute Laws of the State of

Connecticut 184 (Hudson and Goodwin, ed. 1805) .................. 27

An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87342, 75 Stat. 757 (1961) ............................................................... 6

Crimes Act, 1 Cong. Ch. 9, 1 Stat. 112 (1790) .............................. 26

Federal Firearms Act, 52 Stat. 1250 (1938) ................................ 4, 5

Laws of Maryland, Act of Dec. 25, 1789, Ch. XXII ....................... 27

viii

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

90-351, 82 Stat. 197 ..................................................................... 6

Tex. Penal Code § 29.02(a)(1) ........................................................ 26

Tex. Penal Code § 29.03(a)(2) ........................................................ 26

Other Authorities

Adam Winkler, Heller’s Catch-22,

56 UCLA L. REV. 1551 (2009) ....................................................... 4

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

Federal Justice Statistics, 2022 (Jan. 2024) ............................. 29

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

et al., Felony Sentences in State Courts, 2006—Statistical

Tables (rev. Nov. 2010) ............................................................... 29

Dru Stevenson,

In Defense of Felon-in-Possession Laws,

43 CARDOZO L. REV. 1573 (2022) ............................................... 29

Federal Firearms Act: Hearings Before the Subcomm. to

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

89th Cong. 41 (1965) ..................................................................... 5

S. Rep. No. 90-1097 (1968),

reprinted in 1968 U.S.C.C.A.N. 2112, 2169 ............................. 5–6

U.S. Sent’g Comm’n,

Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses (June 2024)

..................................................................................................... 28

United States v. Hernandez,

No. 25-5421 (U.S.)....................................................................... 30

United States v. Stevens,

No. 25-5027 (U.S.)....................................................................... 30

Vincent v. Bondi,

No. 24-1155 (U.S.) ....................................................................... 30

1

JASON DANIEL CARBAJAL, 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 Jason Daniel Carbajal 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.

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

2

(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. By contrast, the

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

upheld the statute in all of its applications (although based on

different rationales).

The Fifth Circuit’s decision below continues to deepen this

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—

3

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

of temporarily disarming individuals who threaten armed

insurrection or had threatened (or would likely threaten) another

with a firearm. So, at the very least, § 922(g)(1) is unconstitutional

as applied to permanently disarm individuals like Carbajal whose

prior convictions established no misuse or likely misuse of a

firearm.

This Court’s intervention is urgently needed to resolve the

scope of a fundamental constitutional right. 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. Carbajal, No. 24-50107 (5th Cir. June 2, 2025) (per

curiam), is reproduced at App. 1a–2a.

JURISDICTION

The Fifth Circuit entered its judgment on June 2, 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.”

4

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

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

5

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

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 this Court’s decision in United States v. Miller, 307 U.S.

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).

6

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

(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.

7

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 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.

4. Following Heller, the courts of appeals coalesced around a

two-step 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

8

Amendment protects an individual right to bear arms brought

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).

5. 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

9

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 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.

10

B.

Proceedings below.

1. In May 2023, Jason Daniel Carbajal was arrested after

trying to evade officers who were executing a traffic stop. C.A.

ROA.243–44. Officers found a rifle in the trunk of the car Carbajal

was driving. Id.

2. Carbajal, who had prior felony convictions for aggravated

robbery with a deadly weapon (a pole), aggravated assault with a

deadly weapon (a bat), drug trafficking, and drug possession, was

indicted for possessing a firearm as a felon, in violation of

§ 922(g)(1). C.A. ROA.9. Carbajal moved to dismiss the indictment.

Id. at 64–87. He argued that § 922(g)(1) facially violates the Second

Amendment under Bruen’s text-and-history test. Id. at 64–85. In

the alternative, he argued that § 922(g)(1) is unconstitutional as

applied to him because there is no historical tradition of

permanently disarming a person with analogous criminal history.

Id. at 85–87.

The district court denied Carbajal’s motion to dismiss without

explanation, relying instead on orders it had entered in other

cases. C.A. ROA.132–33. Carbajal pleaded guilty to the indictment. Id. at 42–43, 183. The court sentenced him to 180 months’

imprisonment and 3 years’ supervised release. Id. at 140–41, 225–

26.

11

3. On appeal, Carbajal renewed both his 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.

Carbajal 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. For his as-applied challenge, Carbajal argued that the

government could not show that a person was permanently

disarmed for convictions analogous to his, which did not involve

the misuse of firearms or establish that he likely would threaten

the safety of another with a firearm.

12

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

precedent foreclosed both Carbajal’s facial and as-applied

challenges to § 922(g)(1). App. 2a (citing Diaz, 116 F.4th at 471–72;

United States v. Schnur, 132 F.4th 863, 870–71 (5th Cir. 2025)).

Schnur held that Diaz foreclosed as-applied challenges by

defendants with prior theft-related convictions, like robbery,

because “our country has a historical tradition of severely

punishing people … who have been convicted of theft.” 132 F.4th

at 870 (quoting Diaz, 116 F.4th at 468–69).

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).

1. Several circuits see no need for felony-by-felony as-applied

litigation, but for drastically different reasons.

a. The Tenth and Eleventh Circuits, relying on this Court’s dicta

that felon-in-possession prohibitions are presumptively lawful, see

no need to conduct the text-and-history analysis required by Bruen.

Vincent v. Bondi, 127 F.4th 1263, 1265 (10th Cir. 2025), pet. for cert.

pending, No. 24-1155 (U.S.); United States v. Dubois, 139 F.4th 887,

893 (11th Cir. 2025).

13

b. The Fourth Circuit also refuses to consider as-applied

challenges on several grounds, including that felons are not among

“the people” protected by the Second Amendment. United States v.

Hunt, 123 F.4th 697, 700 (4th Cir. 2024), cert. denied, No. 24-6818

(U.S. June 2, 2025). The Seventh Circuit, while assuming “there is

some room for as-applied challenges,” similarly held that a

defendant with violent felonies who was on parole when he

possessed a gun is “not a ‘law-abiding, responsible’ person who has

a constitutional right to possess firearms.” United States v. Gay,

98 F.4th 843, 846–47 (7th Cir. 2024) (quoting Bruen, 597 U.S. at

26, 70) (emphasis in original).

c. The Eighth Circuit upheld § 922(g)(1) as constitutional across

the board 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. United

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

No. 24-6517 (U.S. May 19, 2025); see also Hunt, 123 F.4th at 705–

08 (adopting similar reasoning as alternative ground for holding §

922(g)(1) constitutional in every instance).

d. The Second and Ninth Circuits largely agree with the Eighth

Circuit’s historical approach. As the Second Circuit reasons, it “has

long been permissible to regulate firearms possession through

14

legislative

proscription

on

a

class-wide

basis,

without

a

particularized finding that the individuals disarmed pose a threat

to society.” Zherka v. Bondi, 140 F.4th 68, 78–79 (2d Cir. 2025)

(cleaned up). The Ninth Circuit similarly 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.” United States v. Duarte, 137 F.4th 743, 761–62

(9th Cir. 2024) (en banc).

2. The Third and Sixth Circuits recognize that as-applied

challenges to § 922(g)(1) are viable, but they analyze these

challenges differently.

a. 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 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

15

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.

b. 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

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

16

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

60.

3. 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 some 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 Diaz, 116 F.4th at 466. 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 by holding that felons are part of “the people” protected by

the Second Amendment. Id. at 466–67.

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

17

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. The court rejected Carbajal’s

as-applied challenge on this ground. App. 2a. 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);

see also Schnur, 132 F.4th at 869.

*

*

*

The courts of appeals are fractured over how to conduct the

Second Amendment analysis, and the splits are entrenched and

18

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

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

statute as applied to offenders like Carbajal.

19

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 5–6. 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 5–6—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.

20

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

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

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

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.

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

21

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

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

22

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

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

23

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

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, this limited historical

evidence is too slender a reed to establish a tradition justifying the

deprivation of a fundamental constitutional right.

24

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 convicted of offenses that did not involve misuse of firearms or establish a credible

threat of such misuse.

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

violates the Second Amendment as applied to individuals like

Carbajal whose prior convictions do not establish misuse of a

firearm or that he poses a credible threat of misusing firearms.

a. As explained above, supra 20–21, the court of appeals incorrectly relied on laws that did not regulate firearms even though

Bruen and Rahimi require 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); see Rahimi, 602 U.S. at

1897. Capital punishment and estate forfeiture, however, are not

firearm regulations.

25

b. The court of appeals applied a level of generality that is too

high. See supra 21–23. It concluded that § 922(g)(1) and capital

punishment share a common generic purpose (“to deter violence

and lawlessness”) and broad burden (“permanently punishing

offenders”). Diaz, 116 F.4th at 469–70. The comparable purpose

and scope acceptable in Rahimi were significantly narrower. In

Rahimi, the historical analogues and § 922(g)(8)(C)(i) both sought

“to mitigate demonstrated threats of physical violence” by

temporarily

restricting

gun

possession

after

judicial

determinations that “a particular defendant likely would threaten

or had threatened another with a weapon.” Rahimi, 602 U.S. at

688–89 (emphasis added).

The “obvious point that the dead” have no Second Amendment

right “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.” Kanter, 919 F.3d at 462

(Barrett, J., dissenting) (emphasis added). Capital punishment

and permanent disarmament are similar if the metric is “severe

punishments” but not if the metric is—as it must be—“how and

why the regulations burden a law-abiding citizen’s right to armed

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

26

c. Just as the court of appeals’ conclusion that the Founders

would have accepted permanent disarmament of someone who had

been convicted of offenses like theft is not supported by the historical record, supra 23, neither is the conclusion that the Founders

would have accepted permanent disarmament of someone with

Carbajal’s criminal history. Carbajal’s aggravated robbery conviction involved recklessly causing bodily injury with a deadly

weapon (a pole) in the course of committing a theft of property. Tex.

Penal Code § 29.02(a)(1), 29.03(a)(2); see ROA.275–76, 296. Carbajal’s conviction did not establish that the robbery was of an occupied dwelling, the dwelling owner was placed in fear, or the robbery occurred on a highway—the types of robbery that some jurisdictions subjected to capital punishment at the founding. See

Crimes Act, 1 Cong. Ch. 9, 1 Stat. 112, 115 (1790); 2d Cong. Ch. 7,

1 Stat. 237 (1792). Nor do the underlying facts. ROA.275–76.

Moreover, most states at the Founding did not make robbery a

capital offense. See e.g. Act of April 5, 1790, § 1, in 13 Penn. Stat.

511–12 (James T. Mitchell and Henry Flanders, ed. 1908) (the penal laws of Pennsylvania from 1790 provided that robbery was

punishable by a sentence not exceeding ten years); Laws of Maryland, Act of Dec. 25, 1789, Ch. XXII (robbery punishable by restoring the thing robbed (or paying the value of the thing robbed)); Act

27

of Dec. 16, 1811, § 52, in A Compilation of the Laws of the State of

Georgia 149 (Lucius Q. C. Lamar, ed. 1821) (punishable by restoring property or paying value, and hard labor or solitude for a period between three and 10 years); compare Act of Dec. 18, 1781, ch.

CCXC, in the Laws of the State of New Jersey 229 (Peter Wilson,

ed. 1784) (piracy and robbery on the high seas punishable by

death), with Act of March 18, 1796, ch. XXXIV, in Laws of the State

of New Jersey 213 (Williams Paterson, ed. 1800) (robbery was only

a “high misdemeanor” punishable by a fine and imprisonment for

up to 15 years); Act of October 1795, 1 The Public Statute Laws of

the State of Connecticut 184 (Hudson and Goodwin, ed. 1805) (robbery of “any person in the field or highway” was punishable by imprisonment for up to three years; punishable by life imprisonment

if committed with any dangerous weapon to clearly indicate violent

intentions); Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65

(imposing capital punishment on robbery if the goods or chattel

were taken out of church, place of worship, or dwelling house or if

the person within the dwelling house was put in fear; but “any felony” not enumerated was punishable by imprisonment, fine or corporal punishment).

As then-Judge Barrett summarized in her dissenting opinion

from Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019), “property

28

crimes including variations on theft, burglary, and robbery were,

on the whole, not capital” at the Founding. Kanter, 919 F.3d at 459

(citation omitted) (emphasis added).

2. In sum, the Fifth Circuit’s as-applied analysis incorrectly

applied this Court’s precedent. Under the comparative analysis

proscribed by Bruen and Rahimi, § 922(g)(1) is unconstitutional as

applied to Carbajal.

III.

This critically important and recurring question is

cleanly presented in Carbajal’s case.

1. 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.

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

29

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.

2. 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. Carbajal 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.

30

3. Counsel is aware of at least three pending petitions for writ

of certiorari—and there are likely several more—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. 25-5421 (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 Carbajal’s petition pending that decision.

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 29, 2025