Reply Brief — Jason Daniel Carbajal, Petitioner v. United States

No. 25-5535

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

REPLY BRIEF FOR PETITIONER

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

TABLE OF CONTENTS

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

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

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

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

I.

The courts of appeals are deeply divided over the scope of

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

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

Second Amendment despite the Attorney General’s recent

revival of a discretionary avenue for restoring gun rights.

............................................................................................ 10

III. The government offers no meaningful argument against

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

applied to Carbajal. ........................................................... 14

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

ii

TABLE OF AUTHORITIES

Cases

District of Columbia v. Heller,

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

Garland v. Range,

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

Jackson v. United States,

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

Logan v. United States,

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

NYSRPA v. Bruen,

597 U.S. 1 (2022) ............................................................ 3–4, 9, 12

Pitsilides v. Barr,

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

Range v. Attorney General,

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

TikTok v. Garland,

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

United States v. Bean,

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

United States v. Cole,

No. 24-10877,

2025 WL 339894 (11th Cir. Jan. 30, 2025) ............................... 3–4

United States v. Connelly,

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

United States v. Diaz,

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

iii

United States v. Duarte,

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

United States v. Duarte,

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

United States v. Eichman,

496 U.S. 310 (1990)..................................................................... 15

United States v. Grace,

461 U.S. 171 (1983)..................................................................... 15

United States v. Hemani,

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

United States v. Hunt,

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

United States v. Jackson,

110 F.4th 1120 (8th Cir. 2024) .......................................... 3–4, 6, 8

United States v. Patino,

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

United States v. Rahimi,

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

United States v. Williams,

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

Vincent v. Bondi,

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

Vincent v. Garland,

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

Williams v. Illinois,

399 U.S. 235 (1970)..................................................................... 15

Zherka v. Bondi,

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

iv

Statutes

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

18 U.S.C. § 922(g)(1) ................................................. 1–2, 5, 7–12, 14

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

18 U.S.C. § 925(c) ..................................................................... 10–14

Other Authorities

Government Brief,

United States v. Rahimi,

No. 22-915 (U.S. Aug. 14, 2023) ................................................. 13

Granting of Relief; Federal Firearms Privileges,

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

Order Sua Sponte Rehearing En Banc,

United States v. Bost,

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

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

Transcript of Oral Argument,

United States v. Rahimi,

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

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

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

Withdrawing the Attorney General’s Delegation of Authority, 90

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

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

REPLY BRIEF FOR PETITIONER

INTRODUCTION

The government concedes that the courts of appeals are divided

over how to analyze constitutional challenges to 18 U.S.C.

§ 922(g)(1). After all, “perhaps no single Second Amendment issue

has divided the lower courts more than the constitutionality of the

18 U.S.C. § 922(g)(1) felon-disarmament rule’s application to

certain nonviolent felons.” United States v. Duarte, 108 F.4th 786,

787 (9th Cir. 2024) (VanDyke, J., dissenting from grant of rehearing

en banc). And the government musters no defense of the Fifth

Circuit’s decision below, which conflicts with this Court’s precedent

and demotes the Second Amendment to a second-class right.

2

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

road. But the government dramatically understates the severity of

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

government also misplaces reliance on the recently revived

administrative process for restoring firearm rights. That process

was unavailable to Carbajal—as well as countless Americans

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

constitutional defects. And the government’s lackluster arguments

that § 922(g)(1) is constitutional as applied to nonviolent offenders

invite, rather than dissuade, granting certiorari.

Delaying review perpetuates the current state of disarray in the

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

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

of the most commonly charged federal crimes and challenges to the

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

answer this critically important question now.

ARGUMENT

I.

The courts of appeals are deeply divided over the

scope of a fundamental constitutional right.

The government concedes that the courts of appeals are split

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

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

deepening and requires this Court’s intervention.

3

1. The courts of appeals are hopelessly fractured over a

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

Second Amendment challenges. See Pet. 12–18. The Third, Fifth,

and Sixth Circuits all recognize that the statute may be

unconstitutional as applied to individuals convicted of certain

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

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

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

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

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

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

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

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

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

See Zherka v. Bondi, 140 F.4th 68, 78–79 (2d Cir. 2025); United

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

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

Duarte, 137 F.4th 743, 748 (9th Cir. 2025) (en banc), pet. for writ of

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

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

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

4

And the courts of appeals are divided over important underlying

issues relevant to the Second Amendment analysis. See Pet. 12–18.

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

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

in our opinion should be taken to cast doubt on longstanding

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

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

The Tenth and Eleventh Circuits have foregone any historical

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

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

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

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

Second, Eighth, and Ninth Circuits have conducted a historical

analysis that are “consistent with,” “support[ ],” or “confirm[ ]”

Heller’s statements. Zherka, 140 F.4th at 93–94; Jackson, 110 F.4th

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

Sixth Circuits have held that Heller’s statements are dicta because

this Court did not provide any historical justifications for felon-inpossession laws, so these courts conducted an independent

historical inquiry. Range, 124 F.4th at 228–29 & n.8; Diaz, 116 F.4th

at 466; Williams, 113 F4th at 643–44, 648.

5

Second, the courts that have undertaken a historical analysis

diverge in how they interpret the government’s proposed historical

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

relied on capital punishment and permanent estate forfeiture to

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

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

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

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

capital punishment: “Felons … don’t lose other rights guaranteed in

the Bill of Rights even though an offender who committed the same

act in 1790 would have faced capital punishment.” Williams, 113

F.4th at 658. The courts also disagree about the tradition to be

gleaned from historical laws prohibiting religious minorities, Native

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

Fourth, Sixth, Eighth, and Ninth Circuits have interpreted these

historical laws as supporting a broad tradition allowing a

6

legislature to disarm any group it deems dangerous. 1 Zherka, 140

F.4th at 87; Hunt, 123 F.4th at 707–08; Williams, 113 F.4th at 657;

Jackson, 110 F.4th at 1127–28; Duarte, 137 F.4th at 761. By

contrast, the Third and Fifth Circuits have interpreted these laws

as supporting a far narrower tradition: disarming political traitors

or potential insurrectionists who pose a threat of armed rebellion.

Range, 124 F.4th at 229–30; United States v. Connelly, 117 F.4th

269, 277–78 (5th Cir. 2024).

Third, the courts that permit as-applied challenges disagree

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

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

conviction was subject to “serious and permanent punishment” at

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

that analysis, courts may consider only convictions punishable by

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

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

Sixth Circuit found that history requires an opportunity for “individuals

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

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

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

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

no requirement for an individualized determination of dangerousness as

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

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

7

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

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

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

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

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

The Third Circuit has adopted yet another standard, holding

that § 922(g)(1) is unconstitutional as applied to someone “who did

not “pose[ ] a physical danger to others.” Range, 124 F.4th at 232.

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

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

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

Third Circuit, for now, allows courts to consider not only an

individual’s “entire criminal history,” but also “post-conviction

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

en banc Third Circuit recently requested briefing, however, on

whether courts can “consider evidence beyond defendants’ predicate

convictions” when analyzing as-applied challenges to § 922(g)(1).

Order Sua Sponte Rehearing En Banc, United States v. Bost, No.

24-1719 (3d Cir. Oct. 31, 2025).

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

stage of the Second Amendment analysis are deep.

8

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

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

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

opposite. The deepening division since this Court denied review

shows that this entrenched split will not go away without this

Court’s intervention.

Although this Court has not granted plenary review in a

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

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

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

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

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

courts

altered

their

pre-Rahimi

decisions—which

reached

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

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

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

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

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

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

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

to a nonviolent individual after considering Rahimi).

9

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

decision controls or even provides much new guidance” for

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

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

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

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

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

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

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

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

marijuana user. But Hemani will not resolve the ultimate questions

Carbajal asks. Although this Court’s measured approach may have

been warranted to allow further percolation following Rahimi, the

Court should grant review now to resolve the intractable split over

the constitutionality of a statute used to prosecute thousands more

individuals than § 922(g)(3). 2

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

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

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

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

more%20below.

10

II.

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

the Second Amendment despite the Attorney

General’s recent revival of a discretionary avenue for

restoring gun rights.

The government suggests that this circuit split may “evaporate”

because of a recently reestablished administrative process for

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

individual who is prohibited from possessing firearms may have his

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

General’s] satisfaction that the circumstances regarding the

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

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

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

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

irrelevant to thousands of individuals—including Carbajal—who

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

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

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

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

Carbajal. Beginning in 1992—when Carbajal was an infant—

§ 925(c) was “rendered inoperative” because Congress prohibited

using appropriated funds to investigate or act on relief applications.

Logan v. United States, 552 U.S. 23, 28 n.1 (2007). Only recently

has the Attorney General reestablished the process and begun

11

granting relief from federal firearm disabilities. See Withdrawing

the Attorney General’s Delegation of Authority, 90 Fed. Reg. 13,080

(Mar. 20, 2025) (explaining that the Department of Justice

“anticipates future actions, including rulemaking consistent with

applicable law, to give full effect to 18 U.S.C. 925(c)”); Granting of

Relief; Federal Firearms Privileges, 90 Fed. Reg. 17, 835 (Apr. 29,

2025) (granting 10 individuals relief under § 925(c)).

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

his firearm rights. Neither could other individuals—perhaps

numbering

in

the

thousands—whose

Second

Amendment

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

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

Amendment analysis moving forward, the current circuit split

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

review.

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

“address[ ] any constitutional concerns about the breadth and

12

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

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

provision has features that this Court has held are inconsistent

with the Second Amendment.

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

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

satisfied”—that is reviewable only under an arbitrary and

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

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

licensing law, which gave authorities “discretion to deny concealedcarry licenses even when the applicant satisfies the statutory

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

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

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

regime that would allow Congress to pass a sweeping law

disarming millions of Americans and then gives the Attorney

The government claims that “Congress has addressed

[constitutional] concerns through 18 U.S.C. § 925(c).” BIO 8, Vincent, No.

24-1155. But Congress could not have intended the statute to address

constitutional concerns with federal firearm prohibitions because

Congress had no concerns about the Second Amendment when it enacted

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

statute in 1968. See Pet. 6–8.

3

13

General broad and essentially unreviewable discretion to

determine who among them may recover their fundamental right

to keep and bear arms.

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

Court rejected in Rahimi. There, the government argued that

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

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

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

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

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

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

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

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

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

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

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

vague, the Court necessarily rejected the government’s proposed

definition: dangerous. Congress expressed a similar concern when

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

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

Rahimi, dangerousness is not the touchstone for deciding who can

and cannot possess a firearm.

14

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

historical

tradition

of

disarming

nonviolent

felons—

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

administrative process that gives the executive branch nearly

unbridled discretion to restore firearm rights based on a vague and

subjective standard cannot salvage the statute’s constitutional

defects.

III.

The government offers no meaningful argument

against

addressing

whether

§ 922(g)(1)

is

unconstitutional as applied to Carbajal.

The government does not defend the Fifth Circuit’s reliance on

Carbajal’s aggravated assault or aggravated robbery convictions to

affirm his conviction. BIO 3. Nor does it explain how this Court’s

recent Second Amendment jurisprudence support the conclusion

that § 922(g)(1) is constitutional as applied to Carbajal. Instead, the

government merely notes that Carbajal cannot show that his asapplied challenge would succeed in any circuit. BIO 3.

The government also relies on the fact that Carbajal was on

parole when he possessed the firearm, BIO 3—a fact the Fifth

Circuit did not address and that § 922(g)(1) does not criminalize.

Indeed, this Court has rejected upholding the constitutionality of a

statute based on conduct outside of what the challenged statute

regulates. See, e.g., TikTok v. Garland, 604 U.S. 56, 71–72 (2025);

15

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

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

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

The government’s arguments therefore raise no obstacle to

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

do so.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

MAUREEN SCOTT FRANCO

Federal Public Defender

KRISTIN M. KIMMELMAN

Assistant Federal Public Defender

Counsel of Record

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

WESTERN DISTRICT OF TEXAS

Counsel for Petitioner

November 14, 2025