Petition for Writ of Certiorari — Sidney Donnell Kimble, Petitioner v. United States

Supreme Court briefSep 24, 2025

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SIDNEY DONNELL KIMBLE, PETITIONER,

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

CARL R. HENNIES

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

Carl_Hennies@fd.org

(210) 472-6700

Counsel for Petitioner

QUESTION PRESENTED

Whether 18 U.S.C. § 922(g)(1), the federal statute that prohibits

anyone who has been convicted of “a crime punishable by

imprisonment for a term exceeding one year” from possessing a

firearm, violates the Second Amendment either facially or as

applied to individuals with convictions for non-violent offenses.

RELATED PROCEEDINGS

United States District Court for the Western District of Texas:

United States v. Sidney Donnell Kimble,

No. 5:21-cr-355 (Dec. 1, 2023)

United States Court of Appeals for the Fifth Circuit:

United States v. Sidney Donnell Kimble,

No. 23-50874 (June 30, 2025)

iii

TABLE OF CONTENTS

Question presented ........................................................................... i

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

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

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

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

Jurisdiction........................................................................................4

Constitutional and statutory provisions involved...........................4

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

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

B. Proceedings below. ..................................................... 12

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

The courts of appeals are deeply divided over the scope of

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

II. The decision below is wrong and conflicts with this

Court’s precedent. .............................................................. 20

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

it imposes an unprecedented lifetime ban on firearm

possession. .................................................................. 21

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

individuals convicted of non-violent offenses. .......... 27

III. This is a critically important and recurring question. .... 31

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

............................................................................................ 33

Conclusion ...................................................................................... 34

Appendix

Court of appeals opinion (June 30, 2025) ..................................... 1a

Cases

TABLE OF AUTHORITIES

Barrett v. United States,

423 U.S. 212 (1976) ................................................................ 8, 27

Binderup v. Attorney General,

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

Cases v. United States,

131 F.2d 916 (1st Cir. 1942) ......................................................... 6

Cody v. United States,

460 F.2d 34 (8th Cir. 1972) .......................................................... 9

District of Columbia v. Heller,

554 U.S. 570 (2008) .......................................................... 9–10, 20

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) ....................................... 4, 10, 25, 27

Lewis v. United States,

445 U.S. 55 (1980) .................................................................. 8, 21

Logan v. United States,

552 U.S. 23 (2007) ...................................................................... 26

NYSRPA v. Bruen,

597 U.S. 1 (2022) ........................................ 1–2, 11–12, 20–24, 30

People v. Camperlingo,

231 P. 601 (Cal. Ct. App. 1924) .................................................... 6

Pitsilides v. Barr,

128 F.4th 203 (3d Cir. 2025) ...................................................... 19

Range v. Attorney General,

124 F.4th 218 (3d Cir. 2024) (en banc) ........................... 17–19, 30

Rehaif v. United States,

588 U.S. 225 (2019) .................................................................... 31

Scarborough v. United States,

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

Stevens v. United States,

440 F.2d 144 (6th Cir. 1971) .................................................... 8–9

Tot v. United States,

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

United States v. Bullock,

123 F.4th 183 (5th Cir. 2024) ...................................................... 28

United States v. Connelly,

117 F.4th 269 (5th Cir. 2024) ...................................................... 28

United States v. Diaz,

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

145 S. Ct. 2822 (2025) .............................................. 14, 18, 23–24

United States v. Duarte,

137 F.4th 743 (9th Cir. 2024) ...................................................... 16

United States v. Dubois,

139 F.4th 887 (11th Cir. 2025) .................................................... 16

United States v. Focia,

869 F.3d 1269 (11th Cir. 2017) ................................................... 10

United States v. Grinage,

2022 WL 17420390 (W.D. Tex. Dec. 5, 2022) ............................. 13

United States v. Hunt,

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

145 S. Ct. 2756 (2025)................................................................. 16

United States v. Isaac,

2024 WL 4835243 (5th Cir. Nov. 20, 2024) ................................ 28

United States v. Jackson,

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

145 S. Ct. 2708 (2025)................................................................. 16

United States v. Johnson,

497 F.2d 548 (4th Cir. 1974) ........................................................ 9

United States v. Miller,

307 U.S. 174 (1939) .............................................................. 5–6, 9

vii

United States v. Moore,

666 F.3d 313 (4th Cir. 2012) ....................................................... 10

United States v. Rahimi,

602 U.S. 680 (2024) ............................ 1, 11–12, 20, 22–24, 26–31

United States v. Salerno,

481 U.S. 739 (1987) .................................................................... 27

United States v. Schnur,

132 F.4th 863 (5th Cir. 2025) ...................................................... 28

United States v. Tot,

131 F.2d 261 (3d Cir. 1942) .......................................................... 6

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) .............................. 17, 18, 19, 25, 26

Vincent v. Bondi,

127 F.4th 1263 (10th Cir. 2025), pet. for cert. pending,

No. 24-1155 (U.S.) ....................................................................... 16

Zherka v. Bondi,

140 F.4th 68 (2d Cir. 2025), pet. for cert. pending,

No. 25-269 (U.S.)......................................................................... 16

Constitutional Provisions

U.S. Const. amend. II ...................................................................... 4

Statutes

18 U.S.C. § 922(g)(1) .................................................................. i, 1, 4

18 U.S.C. § 922(g)(8) ...................................................................... 24

28 U.S.C. § 1254(1) .......................................................................... 4

An Act to Strengthen the Federal Firearms Act,

Pub. L. No. 87-342, 75 Stat. 757 (1961) ...................................... 8

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

viii

Omnibus Crime Control and Safe Streets Act of 1968,

Pub. L. No. 90-351, 82 Stat. 197.................................................. 8

Other Authorities

Adam Winkler, Heller’s Catch-22,

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

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

Motivans, Federal Justice Statistics, 2022 (Jan. 2024)............ 32

Dep’t of Justice, Bureau of Justice Statistics,

Sean Rosenmerkel et al., Felony Sentences in State Courts,

2006—Statistical Tables (rev. Nov. 2010) ................................. 32

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

43 CARDOZO L. REV. 1573 (2022) ............................................... 32

Federal Firearms Act: Hearings Before the Subcomm. to

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

Judiciary, 89th Cong. 41 (1965) ................................................... 7

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

reprinted in 1968 U.S.C.C.A.N. 2112 ........................................... 7

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

Firearms Offenses (June 2024) .................................................. 31

Withdrawing the Attorney General’s Delegation of Authority,

90 Fed. Reg. 13,080 (Mar. 20, 2025) .......................................... 26

SIDNEY DONNELL KIMBLE, PETITIONER,

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 Sidney Donnell Kimble 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 constitutional

challenges to the federal felon-in-possession statute, 18 U.S.C.

§ 922(g)(1). They reached dramatically divergent results. And the

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

did little to quell the confusion. The courts of appeals continue to

be deeply divided after Rahimi. The Third, Fifth, and Sixth Circuits

each acknowledge that § 922(g)(1) is vulnerable to as-applied

challenges depending on the person’s predicate felony conviction.

By contrast, the Second, Fourth, Eighth, Ninth, Tenth, and

Eleventh Circuits have each upheld the statute in all of its

applications (although based on different rationales).

The Fifth Circuit’s decision below continues to deepen the

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.” See 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 keep and bear arms. No

historical firearm law imposed permanent disarmament. And the

justification behind § 922(g)(1)—disarming a broad group of

potentially irresponsible individuals—also fails historical scrutiny.

At most, our history shows a tradition of disarming violent

individuals who threaten armed insurrection or pose a physical

threat to others. Kimble falls within neither category. Although the

Fifth Circuit determined that Kimble’s predicate convictions for

drug trafficking were “inherently dangerous,” the record lacks

evidence that his offenses involved guns or violence. And in Rahimi,

this Court rejected the sweeping theory that Congress can disarm

anyone it deems dangerous. So, at the very least, § 922(g)(1) is

unconstitutional as applied to non-violent individuals like Kimble.

This question is critically important. Section 922(g)(1) is one of

the most commonly charged federal offenses. Uncertainty about

whether the statute is constitutional affects thousands of criminal

cases each year, and challenges to the statute are congesting the

lower

courts’

dockets.

Even

concerning,

§ 922(g)(1)

categorically and permanently prohibits millions of Americans—

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

exercising their right to keep and bear arms.

This Court’s intervention is urgently needed to resolve the

scope of a fundamental constitutional right. This question will not

go away, and this is an ideal vehicle to resolve it. The Court should

grant certiorari.

OPINION BELOW

The Fifth Circuit’s opinion is reported at 142 F.4th 308 and is

reproduced at App. 1a–24a.

JURISDICTION

The Fifth Circuit entered its judgment on June 30, 2025. This

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Second Amendment provides: “A well regulated Militia,

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

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

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

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

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

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

firearm or ammunition.”

STATEMENT

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

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

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

Soon after Congress passed the Federal Firearms Act, this

Court decided a Second Amendment challenge to another federal

firearm law. In United States v. Miller, two defendants challenged

their indictment for transporting an unregistered short-barreled

shotgun in interstate commerce. 307 U.S. 174, 175 (1939). This

Court held that the Second Amendment did not protect the right

to possess a short-barreled shotgun because such a weapon had no

“reasonable relationship to the preservation or efficiency of a well

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).

regulated militia.” Id. at 178. The Court explained that the Second

Amendment was adopted “[w]ith obvious purpose to assure the

continuation and render possible the effectiveness of [militia]

forces” and “must be interpreted and applied with that end in

view.” Id.

Applying similar militia-focused reasoning, courts of appeals

rejected constitutional challenges to the Federal Firearm Act’s

provision prohibiting individuals convicted of violent crimes from

receiving firearms. The First Circuit held that the Second

Amendment did not protect someone who was not “a member of

any military organization” and who used a firearm “without any

thought or intention of contributing to the efficiency of the well

regulated militia.” Cases v. United States, 131 F.2d 916, 923 (1st

Cir. 1942). The Third Circuit concluded that the Second

Amendment “was not adopted with individual rights in mind,” so

it did not protect possession of a gun without “some reasonable

relationship to the preservation or efficiency of a well regulated

militia.” United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942). And

a California court of appeal upheld that state’s felon-in-possession

law, explaining that “the right to keep and bear arms is not a right

guaranteed … by the federal constitution.” People v. Camperlingo,

231 P. 601, 603 (Cal. Ct. App. 1924).

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

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 Miller—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.

In the ensuing years, courts endorsed Congress’s incorrect

understanding of the Second Amendment and upheld the new,

sweeping felon-in-possession prohibition. For example, the Sixth

Circuit held that the Second Amendment did not limit Congress’s

“power to prohibit the possession of a firearm by a convicted felon.”

Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971). “Since

the Second Amendment right ‘to keep and bear Arms’ applies only

to the right of the State to maintain a militia and not to the

individual’s right to bear arms, there can be no serious claim to

any express constitutional right of an individual to possess a

firearm.” Id. (citing Miller, 307 U.S. at 178). Other courts of

appeals—relying on Miller—also rejected Second Amendment

challenges to the statute because it did not obstruct the militia.

See, e.g., United States v. Johnson, 497 F.2d 548, 550 (4th Cir.

1974); Cody v. United States, 460 F.2d 34, 36–37 (8th Cir. 1972).

3. Fast forward a few decades. 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”

the

Second

Amendment’s

language

and

surveyed

the

Amendment’s “historical background.” Id. at 578, 592. The Court

had “no doubt, on the basis of both text and history, that the Second

Amendment conferred an individual right to keep and bear arms.”

Id. at 595. Relying on the historical understanding of the

Amendment, however, the Court recognized that “the right secured

by the Second Amendment is not unlimited.” Id. at 626. The Court

identified several “longstanding” and “presumptively lawful”

firearm regulations, such as prohibitions on felons possessing

firearms. Id. at 626–27 & n.27. But the Court cautioned that it was

not “undertak[ing] an exhaustive historical analysis … of the full

scope of the Second Amendment.” Id. at 626. And it did not cite any

historical examples of these “longstanding” laws, explaining that

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.

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

focused on the historical scope of the Second Amendment at step

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

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

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

Amendment protects an individual right brought renewed

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

almost uniformly rejected Second Amendment challenges to the

statute, either applying means-ends scrutiny or relying on Heller’s

“presumptively lawful” language. See, e.g., United States v. Moore,

666 F.3d 313, 316–17 (4th Cir. 2012) (collecting cases); but see

Binderup v. Attorney General, 836 F.3d 336, 351–57 (3d Cir. 2016)

(en banc) (holding that § 922(g)(1) was unconstitutional as applied

to two individuals with underlying convictions that “were not

serious enough to strip them of their Second Amendment rights.”).

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

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

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

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

covers an individual’s conduct, the Constitution presumptively

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

justify its regulation by demonstrating that it is consistent with

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

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

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

(cleaned up).

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

“the appropriate analysis involves considering whether the

challenged regulation is consistent with the principles that

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

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

laws that our tradition is understood to permit, ‘apply[ing]

faithfully the balance struck by the founding generation to modern

circumstances.’” Id. (quoting Bruen, 597 U.S. at 29). The law need

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.

Proceedings below.

1. In mid-2021, law enforcement officers approached Kimble to

arrest him. C.A. ROA 281. Kimble ran away, discarding a pistol as

he ran, and was eventually taken into custody. Id. at 281–82.

Kimble had two earlier convictions for drug-trafficking offenses

that were punishable by more than a year in prison. In 2012, he

was convicted in Texas state court of manufacture or delivery of a

controlled substance after he was found with crack cocaine and

marijuana during a traffic stop. Id. at 284. And, in 2015, he was

convicted in federal court of possessing with intent to distribute

cocaine after a sale to a confidential source. Id. at 285. There is no

evidence that Kimble had a firearm during either offense, and

nothing suggests that Kimble engaged in threatening or violent

behavior during either incident. See id. at 284–85.

2. An indictment charged Kimble with being a felon in

possession of a firearm in violation of § 922(g)(1). C.A. ROA 28–29.

Kimble moved to dismiss the indictment. Id. at 130–62. He argued

that § 922(g)(1) facially violates the Second Amendment under

Bruen’s text-and-history test. Id. at 140–59. In the alternative, he

argued that § 922(g)(1) is unconstitutional as applied to him

because his underlying convictions were for “non-violent offenses.”

Id. at 160–61.

The district court denied Kimble’s motion to dismiss, relying on

its earlier decision in another case. C.A. ROA 179–80 (citing United

States v. Grinage, 2022 WL 17420390 (W.D. Tex. Dec. 5, 2022)). In

Grinage, the same court held that § 922(g)(1) was constitutional

both facially and as applied to the defendant there because Bruen

did not overrule earlier Fifth Circuit precedent upholding the

statute and because felons are not among “the people” protected by

the Second Amendment. 2022 WL 17420390, at *3–8. Kimble

pleaded guilty to violating § 922(g)(1), C.A. ROA 254, and the

district court sentenced him to 57 months’ imprisonment, id. at 207.

3. Kimble appealed, and the Fifth Circuit affirmed. App. 1a–

24a. The court rejected Kimble’s facial challenge because it was

foreclosed by circuit precedent. Id. at 3a n.2 (citing United States

v. Diaz, 116 F.4th 458, 471–72 (5th Cir. 2024), cert. denied, 145 S.

Ct. 2822 (2025)). After explaining that “felons are unequivocally

among ‘the people’ protected by the Second Amendment,” id. at 4a

(cleaned up), the court addressed the government’s two theories to

support applying § 922(g)(1) to Kimble.

First, the court rejected the government’s argument that

Kimble’s drug-trafficking predicates were analogous to foundingera felonies punishable by death or estate forfeiture such as

knowing receipt of a stolen horse or forgery of public securities.

App. 7a–11a. The court held that the government’s reliance on

these earlier crimes “stretches the analogical reasoning prescribed

by Bruen and Rahimi too far.” Id. at 10a–11a.

Second, the court agreed with the government’s argument that

Kimble’s drug-trafficking convictions show that “he is the sort of

dangerous individual that legislatures have long disarmed.” App.

11a. The court held that the “Second Amendment allows Congress

to disarm classes of people it reasonably deems dangerous” and

that this tradition “accords with (g)(1)’s rationale for disarming

Kimble.” Id. at 11–14. The court explained that “the Legislative,

Executive, and Judicial Branches agree that drug trafficking is an

inherently dangerous activity.” Id. at 16. Thus, the court held that

§ 922(g)(1) is constitutional as applied to Kimble because his

“predicate convictions for drug trafficking convey that he belongs

to a class of dangerous felons that our regulatory tradition permits

legislatures to disarm.” Id. at 17.

REASONS FOR GRANTING THE PETITION

The courts of appeals are deeply divided over the

scope of a fundamental constitutional right.

The courts of appeals are deeply divided over how to analyze

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

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

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

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

disagreeing about which historical traditions justify § 922(g)(1),

whether the statute is vulnerable to as-applied challenges, and (if

so) how to analyze those challenges.

1. Several circuits have found § 922(g)(1) constitutional with no

need for felony-by-felony litigation, but for drastically different

reasons.

a. The Fourth, Tenth, and Eleventh Circuits have upheld

§ 922(g)(1) in all of its applications without conducting Bruen’s textand-history test. These courts have all concluded that they

remained bound by their pre-Bruen precedent which, in turn,

foreclosed as-applied challenges to § 922(g)(1) based on Heller’s

statement that prohibitions on the possession of firearms by felons

are “presumptively lawful.” See United States v. Hunt, 123 F.4th

697, 702–04 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025);

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).

b. The Second, Eighth, and Ninth Circuits—as well as the

Fourth Circuit as an alternative rationale—have upheld § 922(g)(1)

across the board based on a historical analysis. See Zherka v. Bondi,

140 F.4th 68, 78–79 (2d Cir. 2025), pet. for cert. pending, No. 25-269

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

2024), cert. denied, 145 S. Ct. 2708 (2025); United States v. Duarte,

137 F.4th 743, 761–62 (9th Cir. 2024) (en banc); see also Hunt, 123

F.4th at 705–08. These courts relied on historical laws categorically

disarming groups who were “not law-abiding” or “presented an

unacceptable risk of danger if armed” to justify § 922(g)(1) in all of

its applications. See, e.g., Jackson, 110 F.4th at 1126–28.

2. By contrast, the Third and Sixth Circuits have each conducted

a historical analysis and concluded that § 922(g)(1) is vulnerable to

as-applied challenges.

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). In doing so, 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 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). Although

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—it

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 inquiry, the court explained that courts can

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

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

3. The Fifth Circuit’s decision below underscores the deep

divisions between the courts of appeals.

a. The Fifth Circuit splits with other courts of appeals on two

preliminary questions. Unlike the Fourth, Tenth, and Eleventh

Circuits—which have held that they remain bound by their preBruen precedent, see supra 15–16—the Fifth Circuit agrees with

the Third and Sixth Circuits that Bruen rendered its prior

precedent obsolete. App. 5a & n.4 (recognizing split); Range, 124

F.4th at 225; Williams, 113 F.4th at 647–48. And the Tenth and

Eleventh Circuits have declined to conduct any historical

analysis based on Heller’s “presumptively lawful” language. See

supra 15–16. By contrast, the Fifth Circuit has joined the Third

and Sixth Circuits in refusing to treat that language as

controlling. Diaz, 116 F.4th at 466; Range, 124 F.4th at 228–29;

Williams, 113 F.4th at 648. Instead, these courts acknowledge

that Bruen requires a text-and-history analysis.

b. The Fifth Circuit’s historical analysis also diverges from

other circuits in several respects. The Second, Fourth, Eighth, and

Ninth Circuits have all held that history supports upholding

§ 922(g)(1) regardless of a defendant’s underlying conviction. See

supra 16. But the Fifth Circuit—like the Third and Sixth Circuits,

see supra 17–18—“permit[s] as-applied challenges” to the statute.

App. 5a (cleaned up).

The Fifth Circuit’s as-applied analysis, however, conflicts with

how the Third and Sixth Circuits evaluate as-applied challenges.

First, the Fifth Circuit recognizes that individuals can be disarmed

if their predicates “were subject to the death penalty” at the

founding. App. 5.a. This conflicts with the Third Circuit’s rejection

of capital punishment as an analogue for the felon-in-possession

statute. Range, 124 F.4th at 230–31. Second, the Fifth Circuit

recognizes that “those who have been convicted of violent offenses”

can be disarmed under § 922(g)(1). App. 6a. But its analysis differs

from the Third and Sixth Circuits’ analysis. Those courts require

an individualized assessment of dangerousness that considers a

defendant’s entire criminal record, not just the underlying felony.

Williams, 113 F.4th at 663; Pitsilides v. Barr, 128 F.4th 203, 211

(3d Cir. 2025). The Fifth Circuit, however, has concluded that it is

limited to analyzing the felony predicates that triggered

§ 922(g)(1). App. 11a–12a (recognizing split).

The courts of appeals are fractured over how to conduct the

Second Amendment analysis, and the splits are entrenched and

deepening. This Court’s intervention is needed to resolve the scope

of the right to keep and bear arms.

II.

The decision below is wrong and conflicts with this

Court’s precedent.

The Fifth Circuit’s decision below correctly noted that, under

the plain text of the Second Amendment, “convicted felons are

unequivocally among ‘the people’ protected by the Second

Amendment.” App. 4a (cleaned up). 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 non-violent

offenders like Kimble.

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 7–8. 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 7—it employed an “expansive legislative

approach” to pass a “sweeping prophylaxis … against misuse of

firearms.” Lewis, 445 U.S. at 61, 63. And that sweeping, permanent

prohibition on gun possession imposes a burden far broader than

any firearm regulation in our Nation’s history.

2. In other cases, the Fifth Circuit has recognized that

§ 922(g)(1)’s

permanent

disarmament requires

a historical

analogue that also permanently prevented individuals from

possessing guns. In Diaz, the court noted that § 922(g)(1) imposes

“permanent disarmament” and held that on capital punishment

was a proper analogue because it is “obviously permanent.” 116

F.4th at 469. In the decision below, however, the court never cited

any historical firearm regulation that justified permanent

disarmament of individuals convicted of inherently dangerous

felonies. Under either standard, there is no tradition of permanent

disarmament justifying § 922(g)(1).

a. The Fifth Circuit’s acceptance of capital punishment as a

historical analogue justifying permanent disarmament, see App.

5a, conflicts with this Court’s precedent in three ways.

First, 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, however, is not a firearm regulation. So they

cannot justify § 922(g)(1). The Fifth Circuit has reached a contrary

conclusion by misreading Rahimi.

The Fifth Circuit asserted that Rahimi “consider[ed] several

historical 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.

The Fifth Circuit also noted that this Court accepted a greaterincludes-the-lesser argument in Rahimi. Diaz, 116 F.4th at 469.

That is true as far as it goes. Rahimi held that “if imprisonment

was permissible to respond to the use of guns to threaten the

physical safety of others, then the lesser restriction of temporary

disarmament … is also permissible.” 602 U.S. at 699. But it does

not follow, as the Fifth Circuit concluded, that “if capital

punishment was permissible to respond to theft, then the lesser

restriction of permanent disarmament that § 922(g)(1) imposes is

also permissible.” Diaz, 116 F.4th at 469. 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

U.S.C.

§ 922(g)(8)) had the same purpose—curbing gun violence. Not so

here. Again, capital punishment did not target gun violence.

Second, 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

“obviously

permanent”

deprivation of an individual’s right to bear arms, the lesser

restriction

permanent

disarmament

permissible

for

individuals who are not executed, Diaz, 116 F.4th at 469—conflicts

with how the Constitution treats other fundamental rights.

“Felons, after all, don’t lose other rights guaranteed in the Bill

of Rights even though an offender who committed the same act in

1790 would have faced capital punishment.” Williams, 113 F.4th at

658. “No one suggests that such an individual has no right to a jury

trial or be free from unreasonable searches and seizures.” Id. And

“we wouldn’t say that the state can deprive felons of the right to free

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.

b. The Fifth Circuit has not articulated any tradition of

permanently disarming individuals “whose past criminal conduct

evinces a special danger of misusing firearms.” See App. 6a.

Indeed, the court’s analysis never cites a single permanent or

lifetime ban on firearm use. Id. at 11a–16a. The court noted that

“[g]overnments in England and colonial America long disarmed

groups they deemed to be dangerous.” Id. at 11a (quoting Williams,

113 F.4th at 657). Even assuming this “dangerousness” theory

could justify § 922(g)(1) (but see infra 29–30), the court never

grappled

with

the

fact

that

these

historical

categorical

deprivations were not permanent. Rather, they gave individuals “a

reasonable opportunity to prove that they don’t fit the class-wide

generalization.” Williams, 113 F.4th at 661. Section 922(g)(1), by

contrast, imposes a categorical restriction with no opportunity to

regain the right to keep and bear arms. 2

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

The government has recently reestablished an administrative

process for restoring firearm rights authorized in 18 U.S.C. § 925(c). 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)”). But § 925(c) is

irrelevant here for a simple reason: it was unavailable to Kimble.

Beginning in 1992—decades before Kimble’s underlying convictions—and

continuing until well after Kimble’s conviction in this case, § 925(c) was

“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). And even moving forward, § 925(c) will not remedy any

constitutional concerns because the relief provision has features that this

Court has held are inconsistent with the Second Amendment. See Diaz

Reply Br. 11–13, United States v. Diaz, No. 24-6625 (U.S. May 30, 2025).

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)).

Section 922(g)(1) is unconstitutional as applied

to individuals convicted of non-violent offenses.

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

violates the Second Amendment as applied to individuals with

non-violent convictions. The government has not cited a tradition

of disarming non-violent individuals. The government’s historical

evidence shows—at most—a tradition of disarming violent

individuals who threaten armed insurrection or threaten the

physical safety of others. See Kanter, 919 F.3d at 454 (Barrett, J.,

dissenting) (explaining that historical evidence shows “that the

legislature may disarm those who have demonstrated a proclivity

for violence or whose possession of guns would otherwise threaten

the public safety”).

Again, Congress was not concerned with the Second

Amendment—much

less

the

country’s

history

firearm

regulation—when it expanded federal law to prohibit even nonviolent felons from possessing firearms in the 1960s. See supra 7–

8. Instead, Congress was concerned with “keeping firearms out of

the hands of categories of potentially irresponsible persons,

including convicted felons.” Barrett, 423 U.S. at 220. Of course, this

Court recently rejected the government’s argument that someone

“may be disarmed simply because he is not ‘responsible.’” Rahimi,

602 U.S. at 701. But it is no surprise that Congress’s sweeping law

prohibiting anyone even potentially irresponsible from possessing

a firearm exceeds the limits of the Second Amendment—limits

that this Court only clarified decades later.

2. Before this case, the Fifth Circuit held that history supported

disarming individuals convicted of “violent crimes.” See, e.g., United

States v. Schnur, 132 F.4th 863, 867–70 (5th Cir. 2025) (aggravated

battery causing great bodily injury); United States v. Bullock, 123

F.4th 183, 185 (5th Cir. 2024) (manslaughter and aggravated

assault); United States v. Isaac, 2024 WL 4835243, at *1 (5th Cir.

Nov. 20, 2024) (aggravated assault with a deadly weapon). At least

as to “why,” disarming individuals convicted of violent conduct is

justified by the going-armed laws discussed at length in Rahimi,

which “mitigate[d] demonstrated threats of physical violence.”

Schnur, 132 F.4th at 870 (quoting Rahimi, 602 U.S. at 697). The

Fifth Circuit also considered whether history supported a tradition

of disarming “dangerous” individuals. It found that there was such

a tradition but that it was limited to disarming “political traitors”

and “potential insurrectionists.” United States v. Connelly, 117

F.4th 269, 278 (5th Cir. 2024).

In the decision below, however, the Fifth Circuit held that

§ 922(g)(1) was constitutional as applied to Kimble even though

there is no evidence that he poses a demonstrated threat of

physical violence, was convicted of an offense that involved

violence, or is a political traitor or potential insurrectionist.

Rather, the court held that he could be disarmed simply because

“Congress today regards felon drug traffickers as too dangerous to

trust with weapons” and drug trafficking is “an inherently

dangerous activity.” App. 14a–16a. But this Court has already

rejected this sweeping “dangerousness” theory.

In Rahimi, the government argued that Congress may disarm

individuals who are not “responsible.” Gov’t Br. 27–28, 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.; see

id. at 29 (“[A] person is not responsible and thus may be disarmed

if his possession of a firearm would endanger himself or others.”).

At oral argument, the government confirmed that it was using

“‘responsible’ as a placeholder for dangerous.” Tr. of Oral Arg. 10–

12, United States v. Rahimi, No. 22-915 (U.S. Nov. 7, 2023).

This Court unanimously rejected that theory. Rahimi, 602 U.S.

at 701–02; id. at 772–73 (Thomas, J., dissenting) (“The Government

… argues that the Second Amendment allows Congress to disarm

anyone who is not ‘responsible’ …. Not a single Member of the Court

adopts the Government’s theory.”). The Court stated that

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

would entail.” Id. at 701 (majority opinion). And by deeming the

term “responsible” vague, the Court necessarily rejected the

government’s proposed definition: that irresponsible means

dangerous. See, e.g., Tr. of Oral Arg. 10–12, Rahimi, supra (No. 22915). So Rahimi is directly at odds with the Fifth Circuit’s

determination that Congress can disarm anyone it deems

dangerous.

Indeed, the Fifth Circuit’s standard—whether “Congress today

regards [a group] as too dangerous to trust with weapons,” App.

14a—would simply be a return to the kind of “judicial deference to

legislative interest balancing” that this Court rejected in Bruen. 597

U.S. at 26. As the Third Circuit has recognized, a broad

“dangerousness” standard is “far too broad” and “operates at such a

high level of generality that it waters down the right.” Range, 124

F.4th at 230 (quoting Bruen, 597 U.S. at 31 (first quote); Rahimi,

602 U.S. at 740 (Barrett, J., concurring) (second quote)).

3. In short, “our Nation’s tradition of firearm regulation

distinguishes citizens who have been found to pose a credible

threat to the physical safety of others from those who have not.”

Rahimi, 602 U.S. at 700. Kimble’s prior drug-trafficking

convictions—neither of which involved a gun or threats, C.A. ROA

284–85—do not establish that he poses a credible threat to the

physical safety of others. Thus, at the very least, § 922(g)(1)

violates the Second Amendment as applied to non-violent

offenders like Kimble.

III.

This is a critically important and recurring question.

The Court should grant the petition because the question is

critically important and recurring. After all, “§ 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. The government itself has acknowledged

“the special need for certainty about Section 922(g)(1) given the

frequency with which the government brings criminal cases under

it.” Gov’t Supp. Br. at 10 n.5, Garland v. Range, No. 23-374 (U.S.

June 24, 2024).

Even

beyond

new

prosecutions,

§ 922(g)(1)’s

reach

staggering. The statute prohibits millions of Americans from

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

lives. Recent estimates of the number of individuals with felony

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

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

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

troubling because most of the individuals it prohibits from

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

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

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

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

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

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

12 (Table 7) (Jan. 2024).

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

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

exercising a fundamental constitutional right, this Court should

answer this important and recurring question as soon as possible.

IV.

This case is an ideal vehicle for addressing this

question.

1. This case presents an ideal vehicle for addressing whether

§ 922(g)(1) violates the Second Amendment. The case cleanly

presents a purely legal issue. There are no jurisdictional problems,

factual disputes, or preservation issues. Kimble thoroughly briefed

his facial and as-applied Second Amendment challenges in both the

district court and the court of appeals. The district court squarely

addressed both challenges, C.A. ROA 179–80, as did the Fifth

Circuit in a precedential opinion, App. 1a–24a.

2. In the alternative, there are several pending petitions for writ

of certiorari that, if granted, would bear on the question presented

here. See, e.g., Vincent v. Bondi, No. 24-1155 (U.S.); Zherka v. Bondi,

No. 25-269 (U.S.). If the Court grants certiorari in any of these

pending cases presenting a facial or as-applied challenge to §

922(g)(1), it should at least hold Kimble’s petition pending that

decision.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.