Petition for Writ of Certiorari — Isaiah Kahlil Wise, Petitioner v. United States

No. _____

IN THE SUPREME COURT OF THE UNITED STATES

__________________________________________________________________

ISAIAH KAHLIL WISE,

PETITIONER

v.

UNITED STATES OF AMERICA,

RESPONDENT

__________________________________________________________________

On Petition For Writ Of Certiorari

to the United States Court of Appeals

for the Third Circuit

__________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________________________

ELISA A. LONG

Federal Public Defender

RENEE DOMENIQUE PIETROPAOLO

Assistant Federal Public Defender

Counsel of Record

FEDERAL PUBLIC DEFENDER FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

1001 Liberty Avenue

Suite 1500

Pittsburgh, PA 15222

(412) 644-6565

renee_pietropaolo@fd.org

QUESTIONS PRESENTED

Section 922(g)(1) of Title 18 of the United States Code makes it a crime for a

person convicted of a felony to possess a firearm at any time thereafter. Petitioner

challenged the statute’s constitutionality on the ground that lifetime disarmament

based on his legal status as a “felon” unlawfully abridges the Second Amendment

right to keep and bear arms. The court of appeals rejected his challenge without

resolving the constitutionality of the status offense. It relied instead on the view that

the Second Amendment affords no protection to persons, like petitioner, who were on

state probation when they allegedly possessed a gun. The questions presented are:

1.

Whether courts should analyze as-applied Second Amendment

challenges to 18 U.S.C. § 922(g)(1) by examining whether

historical tradition supports permanently disarming someone for

the predicate offense(s) underlying the defendant’s conviction.

2.

Whether § 922(g)(1), on its face, unconstitutionally abridges the

Second Amendment right to keep and bear arms.

i

PARTIES TO THE PROCEEDINGS

The parties to the proceedings are those named in the caption to this petition.

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to this case:

•

United States v. Wise, Crim. No. 2:21-cr-511, United States District

Court for the Western District of Pennsylvania. Judgment entered

March 5, 2024.

•

United States v. Wise, No. 24-1524, United States Court of Appeals for

the Third Circuit. Judgment entered June 26, 2025.

ii

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Parties to the Proceedings ............................................................................................. ii

Statement of Related Proceedings ................................................................................ ii

Table of Authorities ....................................................................................................... v

Opinion Below ................................................................................................................ 1

Jurisdiction .................................................................................................................... 1

Constitutional and Statutory Provisions Involved ....................................................... 1

Statement of the Case ................................................................................................... 3

Reasons for Granting the Petition ................................................................................ 7

I.

The Third Circuit’s methodology for resolving as-applied

challenges defies this Court’s precedent and is egregiously

wrong ........................................................................................................ 9

II.

Section 922(g)(1) is unconstitutional on its face because lifetime

disarmament based on felon status is without historical

antecedent............................................................................................... 16

III.

The questions presented are exceptionally important, and this case

is an effective vehicle for this Court to address them. .......................... 20

Conclusion .................................................................................................................... 21

Appendix A

Opinion, United States Court of Appeals for the Third Circuit, United

States v. Wise, No. 24-1524 (June 26, 2025).............................................App. 1a

Appendix B

Memorandum Opinion, United States District Court for the Western

District of Pennsylvania, United States v. Wise, No. 2:21-cr-151

iii

(Sept. 26, 2023) ..........................................................................................App. 5a

iv

TABLE OF AUTHORITIES

CASES:

City of Los Angeles v. Patel,

576 U.S. 409 (2015) ......................................... ..............................................8, 11, 15

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................................................ 3, 7, 9, 16, 17, 18

Folajtar v. Att’y General,

980 F.3d 897 (3d Cir. 2020) .................................................................................... 17

McDonald v. City of Chicago,

561 U.S. 742 (2010) ...................................................................................... 8, 11, 19

Michelson v. United States,

335 U.S. 469 (1948) ................................................................................................ 18

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ............................................. 3, 4, 5, 7, 9, 11, 14, 15, 16, 17, 18, 19

People v. Burns,

79 N.E.3d 159 (Ill. 2015) .................................................................................. 10, 15

Pitsilides v. Barr,

128 F.4th 203 (3d Cir. 2025) .................................................................................. 14

Range v. Att’y General,

124 F.4th 218 (3d Cir. 2024) ...................................................................... 17, 18, 20

Tate v. Short,

401 U.S. 395 (1971) .................................................................................................. 9

TikTok v. Garland,

145 S. Ct. 57 (2025) ................................................................................................ 12

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ................................................................................. 16

United States v. Eichman,

496 U.S. 310 (1990) ................................................................................................ 10

United States v. Gay,

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

v

United States v. Giglio,

126 F.4th 1039 (5th Cir. 2025) ............................................................................... 13

United States v. Goins,

118 F.4th 794 (6th Cir. 2024) ................................................................................. 13

United States v. Grace,

461 U.S. 171 (1983) ................................................................................................ 10

United States v. Jackson,

85 F.4th 468 (8th Cir. 2023) ................................................................................... 17

United States v. Moore,

111 F.4th 266 (3d Cir. 2024) ................................................................. 6, 7, 8, 13, 14

United States v. Morton,

123 F.4th 492 (6th Cir. 2024) ................................................................................. 14

United States v. Price,

111 F.4th 392 (4th Cir. 2024) ................................................................................. 11

United States v. Quailes,

126 F.4th 215 (3d Cir. 2025) ................................................................. 6, 7, 8, 13, 14

United States v. Rahimi,

602 U.S. 680 (2024) ....................................................4, 7, 8, 9, 11, 12, 14, 17, 18, 19

United States v. Raines,

362 U.S. 17 (1960) ................................................................................................... 10

Williams v. Illinois,

399 U.S. 235 (1970) ............................................................................................. 9, 15

STATUTES AND CONSTITUTIONAL PROVISIONS:

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

18 U.S.C. § 922(g)(1) .............................................................................................passim

18 U.S.C. § 922(g)(8) .................................................................................................... 12

18 U.S.C. § 922(g)(8)(C)(i).............................................................................................. 4

vi

18 U.S.C. § 922(k) ........................................................................................................ 11

18 U.S.C. § 3231 ............................................................................................................. 1

18 U.S.C. § 3742(a)(1) .................................................................................................... 1

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

28 U.S.C. § 1291 ............................................................................................................. 1

U.S. Const. amend I ............................................................................................... 10, 12

U.S. Const. amend. II ........................... 1, 3, 4, 5, 6, 7, 11, 12, 13, 15, 16, 17, 18, 19, 21

OTHER:

Pub. L. No. 75-785, § 1(6), 52 Stat. 1250 (1938) ......................................................... 18

Fed. R. Evid. 404(a) ..................................................................................................... 18

Dru Stevenson, In Defense of Felon-in-Possession Laws,

43 Cardozo L. Rev. 1573 (2022) ............................................................................. 20

Sarah K.S. Shannon, et al., The Growth, Scope, and Spatial Distribution

of People with Felony Records in the United States, 54 Demography

1795 (2018) ............................................................................................................. 20

U.S. Sent’g Comm’n, QuickFacts: Section 922(g) Firearms (May 2025) ................... 20

Adam Winkler, Heller’s Catch-22, 56 UCLA L. Rev. 1551, 1563 (2009) ................... 18

vii

PETITION FOR WRIT OF CERTIORARI

Isaiah Kahlil Wise respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Third Circuit in this case.

OPINION BELOW

The opinion of the Court of Appeals for the Third Circuit is unreported but

available at United States v. Wise, 2025 WL 1766783 (3d Cir. 2025), and is reproduced

at App. 1a-4a. The judgment of the Court of Appeals was entered on June 26, 2025.

The district court’s opinion denying Mr. Wise’s motion to dismiss the indictment is

reproduced at App. 5a-18a.

JURISDICTION

The district court had jurisdiction over this federal criminal case pursuant to

18 U.S.C. § 3231. The court of appeals had jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a)(1). The Third Circuit issued its opinion on June 26, 2025.

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Second Amendment to the United States Constitution states:

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.

U.S. Const. amend. II.

Section 922 of Title 18 of the United States Code provides:

(g) It shall be unlawful for any person— (1) who has been convicted in

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

one year;

1

***

to ship or transport in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.

18 U.S.C. § 922(g)(1).

2

STATEMENT OF THE CASE

A.

Legal Background

In its seminal decision in District of Columbia v. Heller, this Court held that

there is “no doubt … that the Second Amendment confer[s] an individual right to keep

and bear arms.” 554 U.S. 570, 595 (2008). While the Court acknowledged that the

right is not “unlimited,” it looked to historical restrictions on firearm possession to

inform its analysis of the constitutionality of the law at hand. Id. at 626-27, 631-34.

But the Court left a full-throated exposition of that historical analysis for another

day.

Over the next decade, lower courts “coalesced around a ‘two-step’ framework

for analyzing Second Amendment challenges that combines history with means-end

scrutiny.” Bruen, 597 U.S. at 17. But this Court ultimately rejected that approach in

Bruen, explaining that a “judge-empowering ‘interest-balancing inquiry’” would not

sufficiently safeguard individuals’ constitutional rights. Id. at 22. After all, as Heller

made clear, “[a] constitutional guarantee subject to future judges’ assessments of its

usefulness is no constitutional guarantee at all.” Id. at 23 (quoting Heller, 554 U.S.

at 634). So the Court laid out a more robust constitutional framework steeped in “the

Nation’s historical tradition of firearm regulation.” Id. at 24. Under that approach, if

the regulated conduct is covered by the text of the Second Amendment, then it is

presumptively protected, and the burden shifts to the government to justify its

regulation. Id. To do so, the government must identify historical firearm restrictions

that are analogous to the modern challenged regulation in their “how and why”—i.e.,

3

the “modern and historical regulations” must “impose a comparable burden on the

right of armed self-defense” that “is comparably justified.” Id. at 29.

Last year, this Court provided additional guidance on how to implement

Bruen’s methodology in United States v. Rahimi, 602 U.S. 680 (2024). Rahimi

reiterated that “the appropriate analysis involves considering whether the challenged

regulation is consistent with the principles that underpin our regulatory tradition”

as evidenced by the government’s proffered historical analogues. Id. at 692. This

Court clarified that those analogues “need not be a ‘dead ringer’ or a ‘historical twin’”

for the challenged regulation. Id. But it reiterated that “[w]hy and how the

[challenged] regulation burdens the right are central” to the Second Amendment

inquiry. Id. In other words, the focus remains on whether the challenged regulation

“impos[es] similar restrictions for similar reasons.” Id. Applying that framework, this

Court held that § 922(g)(8)(C)(i) is constitutionally sound, as it is grounded in a

historical tradition of temporarily disarming individuals who have been found to pose

“a credible threat to the physical safety of another.” Id. at 702.

In short, as exemplified in Rahimi, Bruen tasks courts with conducting a

categorical comparison of the mechanics of the challenged provision and the

government’s historical analogues to assess whether the challenged law passes

constitutional muster.

B.

Factual Background

1.

On December 4, 2021, Isaiah Wise attended a gun show with his

girlfriend at which she purchased a firearm and magazine. Appx97. Law

4

enforcement surveilling the gun show observed Mr. Wise holding the firearm in the

parking lot and arrested him. Appx98.

2.

Mr. Wise, who was just 20 years old, was charged by indictment with

one count of possessing a firearm after a conviction of a crime punishable by

imprisonment exceeding one year, in violation of 18 U.S.C. § 922(g)(1). Appx30. The

indictment identified an August 2021 conviction for possession of a controlled

substance with intent to deliver and accompanying offenses, committed when he

was 20 years old. See Appx30. Mr. Wise was serving a probationary sentence for

those state offenses at the time of the § 922(g)(1) offense. See Appx11.

3.

The district court released Mr. Wise on unsecured bond after

determining that his release would not endanger the safety of any other person or

the community. See 18 U.S.C. § 3143. See Doc. 12-13.

4.

Relying on the Supreme Court’s decision in New York State Rifle &

Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), Mr. Wise moved to dismiss the

indictment, arguing that 18 U.S.C. § 922(g)(1) violates the Second Amendment on

its face and as applied to him. Appx41-53. The district court denied the motion. See

App. 5a-18a.

5.

Mr. Wise ultimately tendered a conditional guilty plea pursuant to

Federal Rule of Criminal Procedure 11(a)(2) and a written plea agreement,

reserving his right to appeal the denial of the motion to dismiss. See Appx69-74.

6.

Between the December 2021 offense and the March 2024 sentencing,

Mr. Wise made significant positive change. By the time of sentencing, he had been

5

working with Don Farr Moving for three years. Appx116. According to his employer,

“Mr. Wise has been very consistent and always arrives with a positive attitude.

Because of [his] ability to take direction from management and [comply with] our

standards of professionalism, we have trained Mr. Wise to become a Crew Leader

and have tasked him many times to be a lead on multiple moves.” Appx116, 118,

128. During this time, Mr. Wise, a father of five, woke early every day to help ready

his kids for school and daycare before heading to the job site. Appx114, 118, 127.

7.

The district court sentenced him to 33 months’ imprisonment followed

by three years’ supervised release.

8.

On appeal, Mr. Wise challenged § 922(g)(1)’s constitutionality. He

maintained that the government was unable to show a history of permanently

disarming a person like him of possessing a firearm. Mr. Wise also objected to the

government’s attempted reliance on extra-indictment allegations regarding him and

his conduct, in particular, that he possessed the charged firearm while on state

probation.

9.

The Third Circuit affirmed, relying on intervening circuit precedent.

Relying on United States v. Moore, 111 F.4th 266 (3d Cir. 2024) and United States v.

Quailes, 126 F.4th 215 (3d Cir. 2025), the court held the statute constitutional as

applied to Mr. Wise based on his service of a term of probation at the time of his

firearm possession. App. 3a. Quailes extended the circuit’s earlier decision in Moore,

which denied a Second Amendment challenge brought by a defendant on federal

supervised release. In Moore and Quailes, the Court found that § 922(g)(1)’s lifetime

6

bar, as applied to persons subject to criminal justice supervision, is consistent with

the combined effect of, first, founding-era laws providing for forfeiture of a person’s

entire estate (including any arms) upon conviction of a felony, and second, a

tradition of disarming “convicts” serving custodial sentences in prison or elsewhere.

Quailes, 126 F.4th at 221 & n.7; Moore, 111 F.4th at 269-271.

10.

This timely petition follows.

REASONS FOR GRANTING THE PETITION

The decision below is patently wrong. There is no other context in which the

government may defend a conviction under a law that criminalizes constitutionally

protected behavior by arguing that it could validly deprive the defendant of his

constitutional rights for some other reason entirely. And certainly nothing in Heller,

Bruen, or Rahimi suggests that, when a defendant argues that his conviction violates

the Second Amendment, the inquiry turns on whether there is any reason that

someone in similar shoes could be punished for possessing a firearm consistent with

historical tradition. To the contrary, both this Court’s cases and bedrock principles

make plain that the government must defend the challenged law itself. Yet the Third

Circuit failed to hold the government to that burden here.

Unfortunately, this case is no isolated incident. Multiple courts of appeals have

made the category mistake of letting the government avoid defending § 922(g)(1)

convictions on their own terms based on facts—for example, an unexpired term of

parole or supervised release at the time of the firearm possession—other than the

legal status which makes someone a prohibited person under § 922(g)(1).

7

As has been reviewed before this Court by the petitioners in Moore and

Quailes,1 this approach is improper. To determine whether a statute is facially

constitutional, courts must consider the “actual applications of the statute.” City of

Los Angeles v. Patel, 576 U.S. 409, 419 (2015). Here, in upholding the § 922(g)(1) ban

based on a fact inessential to the offense, the court of appeals failed to resolve whether

petitioner can constitutionally be convicted of the crime with which he was actually

charged. Because this question remains unanswered, the matter must, at a

minimum, be remanded for the Third Circuit to entertain the constitutional challenge

properly before it.

That said, nothing should stop this Court from taking up § 922(g)(1)’s facial

constitutionality itself. Doing so would advance the project of pruning the statute

books of laws far afield from the Nation’s historical tradition of firearm regulation. It

would also offer opportunity to affirm that once a person has repaid his debt to society

for a criminal offense, the right to keep and bear arms is among those “fundamental

rights” to which he is restored. McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).

Alternatively, the Court may wish to grant certiorari in this case, or hold this case

pending decision in another, to settle confusion and disagreement among the circuits

concerning what aspects of a defendant’s criminal record or broader history properly

inform assessment of § 922(g)(1)’s constitutionality as applied. Indeed, lower courts

have implored this Court for further guidance even after Rahimi.

1 Case Nos. 24-968 and 24-7033 respectively.

8

I.

The Third Circuit’s methodology for resolving as-applied

challenges defies this Court’s precedent and is egregiously

wrong.

1.

There is no basis in law or logic to permit the government to defend the

constitutionality of a conviction by speculating that it could have reached the same

result via an entirely different statute (real or imagined). Indeed, that much should

have been clear even without Heller, Bruen, or Rahimi. After all, this Court expressly

rejected that sleight of hand more than half a century ago in Williams v. Illinois, 399

U.S. 235 (1970). There, a defendant challenged a state statutory regime that forced

indigent criminal defendants who failed to pay the fines imposed as part of their

sentences to serve a prison sentence longer than the applicable one-year statutory

maximum. Id. at 238. Although the state argued that the statute was “not

constitutionally infirm simply because the legislature could have achieved the same

result by some other means,” this Court had no difficulty rejecting that argument, as

the state’s authority to pass alternative means to achieve the same goal “does not

resolve the [constitutional] issue” actually presented by the law it sought to enforce.

Id. at 238- 39. For that reason, the Court granted relief to the defendant after finding

that the law the state actually enacted and enforced violated his equal protection

rights—even though it acknowledged that the state could “have appropriately fixed

the penalty, in the first instance,” and incarcerated the defendant for greater than

one year for the same conduct. Id. at 240- 41; accord Tate v. Short, 401 U.S. 395, 399401 (1971).

After Williams, there is no room for the government to argue that its ability to

implement an alternative, supposedly constitutionally valid regime enables the

9

provision it actually enforced to survive (or evade) constitutional review. As one court

aptly put it, “[a]n unconstitutional statute does not ‘become constitutional’ simply

because it is applied to a particular category of persons who could have been

regulated, had the legislature seen fit to do so.” People v. Burns, 79 N.E.3d 159, 16566 (Ill. 2015). That is why this Court invalidated a law categorically banning the

display of signs outside its building under the First Amendment in United States v.

Grace, 461 U.S. 171 (1983), even though the same behavior may have been regulated

through “reasonable time, place and manner restrictions.” Id. at 183-84. It also

explains why this Court concluded in United States v. Eichman, 496 U.S. 310 (1990),

that the government could not criminally punish a defendant for burning a Post Office

flag under a law specifically outlawing flag burning, even though he could still be

subject to prosecution for the destruction of federal property for the exact same

conduct. Id. at 313 n.1, 316 n.5.

This understanding of as-applied challenges is ubiquitous precisely because it

follows from bedrock constitutional principles. Indeed, any other approach would

render the “as-applied challenge” label a misnomer. As this Court has long observed,

a court is “never to anticipate a question of constitutional law in advance of the

necessity of deciding it.” United States v. Raines, 362 U.S. 17, 21 (1960). If courts were

instead authorized to sustain statutory enactments on the grounds that the

government might have chosen another valid means to achieve the same result, they

would stray from the case presented and answer constitutional questions that are not

implicated. Id. Courts thus routinely reject government efforts to employ such

10

sleights of hand. See, e.g., United States v. Price, 111 F.4th 392, 402 n.4 (4th Cir.

2024) (en banc) (rejecting an attempt to invoke defendant’s felon status to defeat his

constitutional challenge to § 922(k)’s ban on possessing firearms with obliterated

serial numbers because regulating felon firearm possession was “not the law

Congress enacted via § 922(k)”).

That principle does not change just because the court is tasked with addressing

a Second Amendment challenge under Bruen and Rahimi. Indeed, there is absolutely

nothing in the methodology laid out in either case that would justify a deviation from

this bedrock rule. Both made clear that the focus of the analysis turns on the

mechanics and contours of the challenged regulation itself. See Rahimi, 602 U.S. at

692 (“Why and how the [challenged] regulation burdens the right are central to this

inquiry.”); Bruen, 597 U.S. at 29 (requiring courts to evaluate “how and why the

[challenged] regulations burden” the Second Amendment right). And neither

announced any rule giving judges or the government a roving license to investigate

whether there is any conceivable reason that the party asserting his Second

Amendment rights could be disarmed. It is little wonder why not: Such a rule not

only would treat the Second Amendment “as a second-class right,” McDonald v. City

of Chicago, 561 U.S. 742, 780 (2010) (plurality), but would run afoul of the

constitutional principles requiring strict adherence to examining the application of

the challenged law to the facts at hand, cf. City of Los Angeles v. Patel, 576 U.S. 409,

418 (2015) (explaining that the Court “considered only applications of the statute in

11

which

it

actually

authorizes

or

prohibits

conduct”

when

assessing

its

constitutionality).

Take Rahimi. This Court focused exclusively on whether historical goingarmed and surety laws were comparable to § 922(g)(8), even though the defendant

there had not only threatened his domestic partner (prompting the domestic

restraining order) but also threatened a woman with a firearm (prompting an

aggravated assault charge) and was connected to five other shootings. See 602 U.S.

at 687. Because the government charged Rahimi only with violating § 922(g)(8), the

Court asked only whether § 922(g)(8) could pass constitutional muster, not whether

the government could have constitutionally disarmed him on another basis. See id.

at 690, 700-02; 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[.]”). Just as with other constitutional questions, then, whether

there may be other reasons the government could disarm someone is not a valid

consideration in the proper constitutional analysis. Cf. TikTok v. Garland, 145 S. Ct.

57, 68 (2025) (“[W]e look [only] to the provisions of the Act that give rise to the

effective TikTok ban that petitioners argue burdens their First Amendment rights”

to address their as-applied challenge.).

2.

Rather than follow these well-settled principles, the Third Circuit

answered a question not properly presented for its review—effectively affirming a

double deprivation of liberty (sending a man to prison and allowing him to be stripped

12

of his right to keep and bear arms) without ever deciding whether the actual statute

of conviction could constitutionally be applied to the defendant.

As set forth, the court of appeals summarily rejected Mr. Wise’s facial and asapplied challenges under circuit precedent holding that the Second Amendment

affords probationers no protection because “parolees and probationers—like convicts

on federal supervised release—are still serving their sentences.” United States v.

Quailes, 126 F.4th 215, 223 (3d Cir. 2025), pet’n for cert. filed, No. 24-7033

(distributed for conference of September 29); see United States v. Moore, 111 F.4th

266, 273 (3d Cir. 2024), cert. denied, No. 24-968 (June 30, 2025). See App. 3a.

On the Third Circuit’s view, disarmament of persons subject to criminal justice

supervision passes muster under the combined effect of founding-era laws providing

for (i) the forfeiture of a person’s estate (including any arms) upon conviction of a

felony, and (ii) disarmament of persons serving custodial sentences in prison or

elsewhere. Quailes, 126 F.4th at 221 & n.7; see Moore, 111 F.4th at 269-271.

Two other circuits have now followed in these conclusions. See United States v.

Giglio, 126 F.4th 1039, 1044 (5th Cir. 2025); United States v. Goins, 118 F.4th 794,

802 (6th Cir. 2024); see also United States v. Gay, 98 F.4th 843, 847 (7th Cir. 2024)

(similarly holding § 922(g)(1) constitutional as applied to parolee).

Even on its own terms, the analysis falls short. Quailes itself observes that

“parole has been around for centuries,” 126 F.4th at 223 n.10, yet the opinion offers

no comment on the fact that, so far as its discussion shows, no founding-era law

disarmed parolees. Nor does Moore address the absence of any such historical

13

analogue. To be sure, Bruen’s analytic framework does not require a “historical twin,”

Rahimi, 602 U.S. at 692, but when a present-day regulation newly disarms a category

of persons perfectly familiar at the founding, “the lack of a historical twin” is difficult

to ignore. United States v. Morton, 123 F.4th 492, 499 n.2 (6th Cir. 2024). In such

instances, the government’s inability to point to “a distinctly similar historical

regulation” will tend to show that a contemporary enactment is inconsistent with the

Second Amendment. Bruen, 597 U.S. at 26.

More fundamentally, the Third Circuit’s inspection of founding-era estate

forfeiture laws to decide the constitutionality of § 922(g)(1) sidestepped the question

before it: whether permanently disarming someone based on the felonies Wise

committed comports with the nation’s tradition of gun regulation. Nothing about that

inquiry turns on an independent assessment of whether there may be other reasons

why Mr. Wise could constitutionally be disarmed. As the petitioners in Moore and

Quailes have explained, the court of appeals in effect asked whether any

characteristic of the defendant could supply a valid historical basis for disarmament

were a legislature to attach this consequence to it. See Petition at 12-13, 18, Reply at

6, Moore v. United States, No. 24-968; Petition at 10, Quailes v. United States, No. 247033.2

2 Indeed, shortly after its decision in Quailes, the Third Circuit instructed in

another case that resolution of as-applied challenges requires consideration of “a

convict’s entire criminal history and post-conviction conduct indicative of

dangerousness, along with his predicate offense and the conduct giving rise to that

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

14

This was error. “An unconstitutional statute does not ‘become constitutional’

simply because it is applied to a particular category of persons who could have been

regulated, had the legislature seen fit to do so.” People v. Burns, 79 N.E.3d 159, 16566 (Ill. 2015). In Burns, the Supreme Court of Illinois postulated—prior to this Court’s

decision in Bruen—that a law barring felons from carrying firearms in public might

pass constitutional muster. See id. at 165. But in the case at bar, it explained, the

defendant’s felon status had no bearing on his facial challenge to a statute prohibiting

public carry on the part of all citizens. It was “precisely because the prohibition is not

limited to a particular subset of persons” that “the statute, as written, is

unconstitutional on its face.” Id. (citing City of Los Angeles v. Patel, 576 U.S. 409

(2015)); see also Williams v. Illinois, 399 U.S. 235, 238-39 (1970) (explaining that

possibility of legislature enacting a higher statutory maximum for petitioner’s offense

did not cure sentence subjecting him to imprisonment beyond existing maximum

based on inability to pay a fine).

So too here. Even stipulating that persons subject to criminal justice

supervision may be deprived of the right to keep and bear arms, that does not

disqualify a probationer from mounting a facial or as-applied attack on § 922(g)(1)’s

much broader prohibition of gun possession by anyone with a felony conviction. When

confronted with such a Second Amendment challenge, a court’s task is not to identify

facts about a defendant which a legislature might in theory lawfully mark off as

ground for disarmament. Rather, it is to determine whether the facts actually marked

off by the challenged regulation—either generally or in the defendant’s particular

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case—bring the regulation within the compass of the nation’s historical tradition of

firearm regulation. See United States v. Diaz, 116 F.4th 458, 467 (5th Cir. 2024), cert.

denied, No. 24-6625 (June 23, 2025). Here, the Third Circuit’s conclusion that

Congress might constitutionally disarm probationers, should it elect to do so,

bypassed the constitutional inquiry pertinent to § 922(g)(1): whether Congress may

constitutionally disarm anyone convicted of a felony.

II.

Section 922(g)(1) is unconstitutional on its face because lifetime

disarmament based on felon status is without historical

antecedent.

As has also been reviewed in other petitions before the Court,3 § 922(g)(1) is

facially unconstitutional because the lifetime bar it places upon all persons convicted

of a felony is not “consistent with the Nation’s historical tradition of firearm

regulation.” New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 24

(2022).

Like all Americans, petitioner is among “the people” whose “right to keep and

bear Arms” is vouchsafed by the Second Amendment. District of Columbia v. Heller,

554 U.S. 570, 581 (2008). Since § 922(g)(1) prohibits any possession of a gun or

ammunition, the statute regulates conduct within the scope of the constitutional text.

It is therefore incumbent on the government to demonstrate the requisite fit with

historical tradition by identifying analogous founding-era regulations showing that

lifetime disarmament based on felon status is consistent with the principles

3 See, e.g., Toney v. United States, No. 24-7253 (cert. denied June 23, 2025);

Diaz v. United States, No. 24-6625 (cert. denied June 23, 2025); French v. United

States, No. 24-6623 (cert. denied May 19, 2025).

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underlying the Second Amendment. In judging contemporary statutes, courts must

consider both “why and how the regulation burdens the right,” as even a law that

“regulates arms-bearing for a permissible reason … may not be compatible with the

right if it does so to an extent beyond what was done at the founding.” United States

v. Rahimi, 602 U.S. 680, 692 (2024). The ultimate question is whether § 922(g)(1)

imposes “a comparable burden on the right of armed self-defense” that is “comparably

justified.” Bruen, 597 U.S. at 29.

It does not. While it may be that people “considered dangerous lost their arms”

in the decades surrounding ratification of the Second Amendment, “being a criminal

had little to do with it.” United States v. Jackson, 85 F.4th 468, 472 (8th Cir. 2023)

(Stras, J., dissenting from denial of rehearing en banc). Rather, in the founding era

“most punishments were temporary,” and “once wrongdoers had paid their debts to

society, the colonists forgave them and welcomed them back into the fold.” Folajtar v.

Att’y General, 980 F.3d 897, 912, 923 (3d Cir. 2020) (Bibas, J., dissenting). So-called

“felons” were then restored to full enjoyment of at least their natural rights, if not

every privilege and immunity of citizenship. See id. at 924 (“Though [the plaintiff’s]

tax-fraud conviction affects some of her privileges, it does not change her right to keep

and bear arms.”). So “a felon could acquire arms after completing his sentence and

reintegrating into society.” Range v. Att’y General, 124 F.4th 218, 231 (3d Cir. 2024)

(en banc).

In the years since Heller and Bruen, the government has yet to put forward a

single founding-era law barring citizens from keeping and bearing arms based on

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felony status. It was only in 1938 that Congress prohibited even persons convicted of

certain exceptionally serious crimes, such as murder and rape, from receiving a

firearm in interstate commerce. See Pub. L. No. 75-785, § 1(6), 52 Stat. 1250, 125051 (June 30, 1938); Adam Winkler, Heller’s Catch-22, 56 UCLA L. Rev. 1551, 1563

(2009). And not until the latter half of the 20th century did Congress disarm

Americans based on felon status alone. See Range, 124 F.4th at 229.

To be sure, the nation’s tradition of firearm regulation does permit temporary

disarmament based on a judicial finding that a person poses “a credible threat to the

physical safety of another.” See Rahimi, 602 U.S. at 702. But conviction of a felony

entails no finding of an active threat—only of the elements of an offense. And while

the Second Amendment may or may not contemplate disarmament of “categories of

persons thought by a legislature to present a special danger of misuse,” id. at 698,

felon status is too broad and variable a proxy—being contingent on the legislative

prerogative to define crimes—to pass constitutional muster. See Bruen, 597 U.S. at

26 (courts may not “defer to the determinations of legislatures” with respect to Second

Amendment’s guarantee). Even as to violent crimes, § 922(g)(1) codifies an inference

of incorrigible ‘propensity’ that our legal tradition elsewhere abhors. E.g., Fed. R.

Evid. 404(a); see Michelson v. United States, 335 U.S. 469, 475 (1948) (“Courts that

follow the common-law tradition almost unanimously have come to disallow resort by

the prosecution to any kind of evidence of a defendant’s evil character to establish a

probability of his guilt.”).

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Turning to the “how” dimension of analysis, § 922(g)(1)’s lifetime bar burdens

the right to an extent beyond any regulation of the founding era. To date, the

government’s own search for laws permanently disarming a citizen has yielded only

draft penal codes from the 1820s that “ultimately were not adopted.” Brief in

Opposition at 8, Jackson v. United States, No. 24-6517. Consistent with this lack of

authority, Rahimi stressed that the disarmament provision there at issue was

“temporary,” lasting only “so long as the defendant ‘is’ subject to a restraining order,”

and thus burdening the right in a manner analogous to historical “surety bonds of

limited duration.” 602 U.S. at 699. The Court also cautioned that it “conclude[d] only

this: An individual found by a court to pose a credible threat to the physical safety of

another may be temporarily disarmed consistent with the Second Amendment.” Id.

at 702 (emphasis added).4

For these reasons, a proper application of Bruen’s analytic framework leads to

the conclusion that § 922(g)(1) unlawfully abridges the Second Amendment right to

keep and bear arms. Certiorari should be granted to vindicate this fundamental

guarantee “essential to the preservation of liberty.” McDonald, 561 U.S. at 858

(Thomas, J., concurring in part and concurring in judgment).

4 In a recent filing, the government too has implicitly recognized the salience

of § 922(g)(1)’s lifetime duration, stressing with respect to a different provision of §

922(g) that the distinct bar it imposes is temporary and indeed terminable at will by

ceasing drug use. See Petition for Writ of Cert. at 2, United States v. Hemani, No. 241234; id. at 9, 20.

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III.

The questions presented are exceptionally important, and this case

is an effective vehicle for this Court to address them.

How to resolve § 922(g)(1) challenges is an exceptionally important question

given the frequency with which the federal government seeks to dispossess citizens

of firearms under § 922(g)(1). Section 922(g)(1) impacts thousands of defendants

every year.5 And with the increasing volume of constitutional challenges to these

convictions, it is critical that courts have a shared (and correct) understanding of how

to resolve them. Indeed, the government itself has made precisely this point in

seeking review of decisions unfavorable to its maximalist position regarding the

constitutionality of § 922(g)(1). See, e.g., Pet. for Rhg. En Banc 19, United States v.

Duarte, No. 22-50048 (9th Cir. May 14, 2024), Dkt.72-1; Pet. for Cert. 24-25, Garland

v. Range, No. 23-374 (U.S. Oct. 5, 2023).

Mr. Wise’s case is an effective vehicle for cutting off the analytical detour made

by the Third Circuit and now followed by two additional circuits. Equally, the case is

an effective vehicle for deciding whether § 922(g)(1)’s lifelong gun ban is

unconstitutional on its face. The court resolved the question presented on the merits

by applying its intervening precedent, see App.3a, and there is no doubt of the

question’s magnitude: recent estimates of the number of individuals with felony

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

Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573, 1591 (2022); Sarah K.S. Shannon,

5 Of the 61,678 cases reported to the Sentencing Commission for FY 2024,

7,419 involved felony convictions under § 922(g). And 90.4%, or 6,707 defendants,

were convicted under § 922(g)(1). See U.S.S.C., QuickFacts: Section 922(g) Firearms

(May 2025), https://www.ussc.gov/sites/default/files/pdf/research-andpublications/quick-facts/Felon_In_Possession_FY24.pdf (last viewed Aug.25, 2025).

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et al., The Growth, Scope, and Spatial Distribution of People with Felony Records in

the United States, 54 Demography 1795, 1807 (2018). Certiorari should accordingly

be granted and, at a minimum, the judgment below vacated and the matter remanded

with instructions to decide whether Mr. Wise may constitutionally be convicted of the

crime with which he was actually charged.

CONCLUSION

The petition for a writ of certiorari should be granted, or else held pending the

grant of certiorari in another case raising one or more of the questions presented.

Alternatively, the petition should be granted, the judgment below vacated, and the

matter remanded with instructions to address the Second Amendment challenge that

petitioner raised in the district court and court of appeals.

Respectfully submitted,

ELISA A. LONG

FEDERAL PUBLIC DEFENDER

/s/ Renee Domenique Pietropaolo

RENEE DOMENIQUE PIETROPAOLO

Assistant Federal Public Defender

Counsel of Record

FEDERAL PUBLIC DEFENDER FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

1001 Liberty Avenue, Suite 1500

Pittsburgh, PA 15222

(412) 644-6565

renee_pietropaolo@fd.org

September 22, 2025

Counsel for Petitioner

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