Petition for Writ of Certiorari — Rudy Mario Flores, Petitioner v. United States

Supreme Court briefSep 29, 2025

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No. ___________________

RUDY MARIO FLORES, 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 WRIT OF CERTIORARI

MAUREEN SCOTT FRANCO

Federal Public Defender

BRADFORD W. BOGAN

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

brad_bogan@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 prior convictions for non-violent

offenses.

Related Proceedings

United States District Court for the Western District of Texas:

United States v. Flores, No. 5:23-cr-24-DAE-1 (June 6, 2024)

(criminal judgment)

United States Court of Appeals for the Fifth Circuit:

United States v. Flores, No. 24-50459 (June 30, 2025) (per

curiam)

iii

Table of Contents

Question Presented ........................................................................... i

Related Proceedings......................................................................... ii

Table of Contents ............................................................................ iii

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

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

Opinion Below ...................................................................................4

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

Constitutional and Statutory Provisions Involved .........................5

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

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

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

Reasons for Granting the Petition ................................................ 16

The courts of appeals are deeply divided over the scope of

a fundamental constitutional right. ................................. 16

II. The decision below is wrong and conflicts with this Court’s

precedent. ........................................................................... 25

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

imposes an unprecedented lifetime ban on firearm

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

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

individuals based on their prior non-violent felony

convictions. ................................................................. 32

III. This is a critically important and recurring question. .... 35

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

............................................................................................ 36

Conclusion ...................................................................................... 37

Appendix

United States v. Flores,

No. 24-50459 (5th Cir. June 30, 2025) .................................... 1a–2a

Table of Authorities

Cases

Barrett v. United States,

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

Binderup v. Attorney General,

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

District of Columbia v. Heller,

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

Kanter v. Barr, 919 F.3d 437

(7th Cir. 2019)........................................................ 5, 9, 14, 31, 33

Lewis v. United States,

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

NYSRPA v. Bruen,

597 U.S. 1 (2022) ...................... 1, 3, 10–12, 20, 26–28, 30–31, 33

Range v. Attorney General,

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

Rehaif v. United States,

588 U.S. 225 (2019) .................................................................... 35

Scarborough v. United States,

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

TikTok v. Garland,

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

Tot v. United States,

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

United States v. Bullock,

123 F.4th 183 (5th Cir. 2024) ............................................... 25, 27

United States v. Contreras,

125 F.4th 725 (5th Cir. 2025) ..................................................... 25

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ....................... 13–15, 23–25, 27–32

United States v. Duarte,

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

reh’g en banc granted, opinion vacated,

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

United States v. Duarte,

137 F.4th 743 (9th Cir. 2025) (en banc)............................... 21–22

United States v. Dubois,

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

United States v. Eichman,

496 U.S. 310 (1990) .................................................................... 34

United States v. Focia,

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

United States v. Gay,

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

United States v. Goins,

118 F.4th 794 (6th Cir. 2024) ..................................................... 20

United States v. Grace,

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

United States v. Hunt,

123 F.4th 697 (4th Cir. 2024) ............................................... 18, 19

United States v. Jackson,

110 F.4th 1120 (8th Cir. 2024) ............................................. 20, 21

United States v. Miller,

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

United States v. Moore,

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

vii

United States v. Rahimi,

602 U.S. 680 (2024) .................................. 2, 11, 26, 28–30, 32–33

United States v. Salerno,

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

United States v. Schnur,

132 F.4th 863 (5th Cir. 2025) ..................................................... 15

United States v. Vega,

332 F.3d 849 (5th Cir. 2003) ...................................................... 15

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) ......................................... 19, 20, 31

Vincent v. Bondi,

127 F.4th 1263 (10th Cir. 2025) ........................................... 22, 23

Williams v. Illinois,

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

Zherka v. Bondi,

140 F.4th 68 (2d Cir. 2025) .................................................. 16, 17

Constitutional Provisions

Commerce Clause,

U.S. Const. Art. I, § 8, cl.3 ......................................................... 12

Second Amendment,

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

Statutes

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

.............. i, 1–5, 9–10, 12–14, 16–22, 24–27, 29–30, 32–33, 35–36

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

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

viii

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

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) ..................................................................... 6

Omnibus Crime Control and Safe Streets Act of 1968,

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

Other Authorities

Dep’t of Justice, Bureau of Justice Statistics,

Mark A. Motivans,

Federal Justice Statistics, 2022 (Jan. 2024) ............................. 36

Dep’t of Justice, Bureau of Justice Statistics,

Sean Rosenmerkel et al.,

Felony Sentences in State Courts,

2006—Statistical Tables (rev. Nov. 2010) ................................. 36

Federal Firearms Act: Hearings Before the Subcomm. to

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

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

Poulos, John,

The Metamorphosis of the Law of Arson,

51 Mo. L. Rev. 295 (Spring 1986) .............................................. 14

Preyer, Kathryn,

Crime and Reform in Post-Revolutionary Virginia,

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

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

reprinted in 1968 U.S.C.C.A.N. 2112, 2169 ................................ 7

Stevenson, Dru,

In Defense of Felon-in-Possession Laws,

43 CARDOZO L. REV. 1573 (2022) ............................................... 35

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

Offenses (June 2024) .................................................................. 35

Winkler, Adam,

Heller’s Catch-22,

56 UCLA L. REV. 1551 (2009) ...................................................... 6

RUDY MARIO FLORES, 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 WRIT OF CERTIORARI

Petitioner Rudy Mario Flores, respectfully petitions for a writ

of certiorari to review the judgment of the United States Court of

Appeals for the Fifth Circuit.

Introduction

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

brought about a sea change in Second Amendment jurisprudence.

In Bruen’s wake, the courts of appeals considered renewed constitutional challenges to the federal felon-in-possession statute, 18

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

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

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

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

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

non-violent predicate conviction. A panel of the Ninth Circuit similarly held that the statute violated the Second Amendment as applied to someone with non-violent offenses before vacating that decision en banc. The Fourth and Seventh Circuits assumed that asapplied challenges to § 922(g)(1) were available in at least some circumstances. By contrast, the Eighth, Tenth, and Eleventh Circuits

all upheld § 922(g)(1) with no need for felony-by-felony determinations, although those courts disagreed about whether a historical

analysis was required.

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

(2024), did little to quell the confusion. The courts of appeals continue to be deeply divided after Rahimi. The Third, Fifth, and

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

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

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

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

Eleventh Circuits continue to uphold the statute in all applications

based on dicta from this Court instead of the historical analysis

that Bruen demands. The Fourth Circuit refuses to consider asapplied challenges on several grounds, including that felons are

not among “the people” protected by the Second Amendment. And

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

held that there is a history of disarming certain classes of individuals that supports applying § 922(g)(1) to all felons.

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

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

fundamental right. And the Fifth Circuit’s decision is wrong. Section 922(g)(1) is a mid-20th century innovation drafted when Congress believed—incorrectly—that the Second Amendment does not

protect an individual right to bear arms. So Congress made no effort to pass a law that was “consistent with the Nation’s historical

tradition of firearm regulation.” 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 bear arms. No historical firearm law imposed permanent disarmament. And the justification

behind § 922(g)(1)—disarming a broad group of potentially irresponsible individuals—also fails historical scrutiny. At most, our

history shows a tradition of disarming violent individuals who

threaten armed insurrection or pose a present physical threat to

others. So, at the very least, § 922(g)(1) is unconstitutional as applied to individuals like Flores who were previously convicted of

non-violent crimes.

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. Even more concerning, § 922(g)(1) categorically

and permanently prohibits millions of Americans—the vast majority of whom have non-violent convictions—from exercising their

right to keep and bear arms.

This Court’s intervention is urgently needed to resolve the

scope of a fundamental constitutional right. After Rahimi, the confusion among the courts of appeals has only deepened. This question will not go away, and this is an ideal vehicle to resolve it. The

Court should grant certiorari.

Opinion Below

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

United States v. Flores, No. 24-50459 (5th Cir. June 30, 2025) (per

curiam), is reproduced at Pet. App. 1a–2a.

Jurisdiction

The opinion and judgment of the United States Court of Appeals for the Fifth Circuit were entered on June 30, 2025. This petition is filed within 90 days after entry of the judgment. See Sup.

Ct. R. 13.1. The Court has jurisdiction to grant certiorari under 28

U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people

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

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

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

any court of, a crime punishable by imprisonment for a term exceeding one year … to … possess in or affecting commerce, any

firearm or ammunition.”

Statement

A. Legal background.

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

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

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

Indeed, “[b]ans on ex-felons possessing firearms were first adopted

in the 1920s and 1930s, almost a century and a half after the

Founding.” Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV.

1551, 1563 (2009). In 1938, Congress criminalized firearm possession by individuals convicted of certain crimes for the first time.

See Federal Firearms Act, ch. 850, § 2(f), 52 Stat. 1250, 1251

(1938). But that statute was much narrower than the modern version. The Federal Firearms Act only applied to someone “convicted

of a crime of violence,” id., which included “murder, manslaughter,

rape, mayhem, kidnaping, burglary, housebreaking,” and certain

kinds of aggravated assault, id. § 1(6). The Act prohibited an individual with such a conviction from “receiv[ing]” a firearm, and it

considered possession to be “presumptive evidence” of receipt. 1 Id.

§ 2(f).

2. It was not until the 1960s that the federal felon-in-possession statute took on its modern form. At the time, Congress shared

a widely held—but incorrect—understanding of the Second

Amendment. In committee testimony, the Attorney General assured Congress that “[w]ith respect to the second amendment, the

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

the amendment did not guarantee to any individuals the right to

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

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).

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 United States v. Miller, 307 U.S. 174

(1939)—which held that the Second Amendment “was not adopted

with the individual rights in mind.” Id.

Unconstrained by the Second Amendment, “Congress sought to

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

pass a “sweeping prophylaxis … against misuse of firearms.” Scarborough v. United States, 431 U.S. 563, 572 (1977) (first quote);

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

quotes). In particular, Congress was concerned with keeping firearms out of the hands of broad categories of “potentially irresponsible persons, including convicted felons.” Barrett v. United States,

423 U.S. 212, 220 (1976). So it enacted two significant changes that

brought about the modern felon-in-possession 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.

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

Court held for the first time that the Second Amendment codifies

an individual right to keep and bear arms—a right that is not limited to militia service. 554 U.S. 570, 579–600 (2008). In reaching

this conclusion, the Court conducted a “textual analysis” of the Second Amendment’s language and surveyed the Amendment’s “historical background.” Id. at 578, 592. The Court had “no doubt, on

the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Id. at 595. Relying on the historical understanding of the Amendment, however,

the Court recognized that “the right secured by the Second Amendment is not unlimited.” Id. at 626. The Court identified several

“longstanding” and “presumptively lawful” firearm regulations,

such as prohibitions on felons possessing firearms. Id. at 626–27

& n.27. But the Court cautioned that it was not “undertak[ing] an

exhaustive historical analysis … of the full scope of the Second

Amendment.” Id. at 626. And it did not cite any historical examples

of these “longstanding” laws, explaining that there would be “time

enough to expound upon the historical justifications for the[se] exceptions … if and when those exceptions come before us.” Id. at

635. The Court then turned to the District of Columbia handgun

ban at issue, finding that it was historically unprecedented and

thus violated the Second Amendment. Id. at 629, 631–35.

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

focused on the historical scope of the Second Amendment at step

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

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

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

Amendment protects an individual right to bear arms brought renewed constitutional challenges to § 922(g)(1). But the courts of

appeals almost uniformly rejected Second Amendment challenges

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

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

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

The lone exception was the Third Circuit, which held that

§ 922(g)(1) was unconstitutional as applied to two individuals with

underlying convictions—one for corrupting a minor and the other

for carrying a handgun without a license—that “were not serious

enough to strip them of their Second Amendment rights.”

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

(en banc).

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

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

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

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

covers an individual’s conduct, the Constitution presumptively

protects that conduct.” Id. at 17. “The government must then justify its regulation by demonstrating that it is consistent with the

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

then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” Id. (cleaned

up).

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

“the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin

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

ascertain whether the new law is ‘relevantly similar’ to laws that

our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’”

Id. (quoting Bruen, 597 U.S. at 29). The law need not be a “historical twin,” but analogical reasoning is also not a “regulatory blank

check.” Bruen, 597 U.S. at 30. “How” and “why” the regulations

burden the right to bear arms are central to this inquiry. Bruen,

597 U.S. at 29; Rahimi, 602 U.S. at 692. These considerations ask

whether the modern and historical regulations impose a “comparable burden” (the how) and “whether that burden is comparably

justified” (the why). Bruen, 597 U.S. at 29. “Even when a law regulates arms-bearing for a permissible reason, … it may not be compatible with the right if it does so to an extent beyond what was

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

B. Proceedings below.

1. Flores is a convicted felon. He has two prior convictions for

vehicular arson and one for felony theft.

In this case, New Braunfels, Texas, police officers encountered

Flores while investigating a vehicle burglary. While patting Flores

down, the officers found a Jimenez Arms .380 caliber pistol in his

back pocket. Two other firearms were found in the vehicle where

officers encountered Flores. “An interstate nexus expert determined that [the] Jimenez Arms firearm had traveled in interstate

commerce.”

For that, Flores was charged in a one-count indictment with

“possess[ing] at least one firearm, to wit:” the Jimenez Arms .380

pistol, “said firearm ha[ving] been shipped and transported in interstate and foreign commerce,” “knowing that he had been convicted of a crime punishable by imprisonment for a term exceeding

one year,” in violation of 18 U.S.C. § 922(g)(1).

2. Flores moved to dismiss the indictment on two grounds.

First, he argued that § 922(g)(1) is unconstitutional under the Second Amendment, both facially and as applied to those with criminal histories like his, under the Court’s decision in Bruen. Second,

he argued that the statute exceeds Congress’s power under the

Commerce Clause.

The district court denied Flores’s motion, joining “the consensus among federal courts across the nation” that Bruen had “left

generally undisturbed the regulatory framework that keeps firearms out of the hands of dangerous felons” in rejecting Flores’s facial challenge to § 922(g)(1). The court also rejected Flores’s as-applied challenge based on pre-Bruen Fifth Circuit precedent upholding § 922(g)(1) regardless of whether a defendant’s prior felony was

violent in nature. Finally, the court rejected Flores’s Commerce

Clause challenge as foreclosed by precedent, as Flores had

acknowledged in his motion to dismiss.

3. Flores pleaded guilty to the indictment. The factual basis

listed only his prior arson convictions; it did not mention the theft.

The district court sentenced him to 151 months’ imprisonment and

three years’ supervised release.

4. Flores appealed. He raised both facial and as-applied challenges to the constitutionality of § 922(g)(1) under Bruen’s framework, as clarified in Rahimi and the Fifth Circuit’s decision in

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied,

No. 24-6625 (U.S. Jun. 23, 2025). Diaz, as the seminal Fifth Circuit

case applying Bruen and Rahimi’s analyses to § 922(g)(1), established three points: (1) “felons” are part of “the people,” and thus

§ 922(g)(1) is presumptively unconstitutional, id. at 466–67; (2)

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

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

considering only his prior convictions—his prior felony conviction

for vehicle theft was relevantly similar to the Founding-era crime

of horse theft, which was punishable by death or estate forfeiture,

id. at 467, 469–70.

Flores argued that § 922(g)(1) facially violates the Second

Amendment to preserve the issue for further review but acknowledged that the Fifth Circuit’s precedent foreclosed his argument.

As for his as-applied challenge to § 922(g)(1), Flores argued that

the Government could not demonstrate a historical tradition of

permanently disarming a person convicted of vehicular arson because that offense is not relevantly similar to crimes during the

Founding era that were punishable by death or estate forfeiture.

There is no evidence that colonial-era Americans were punished

“permanently and severely” for possessing firearms after any

crimes punishable by more than one year of imprisonment. Diaz,

116 F.4th at 468 (rejecting a prior § 922(g)(1) offense as a relevantly similar predicate); Kanter, 919 F.3d at 454 (Barrett, J., dissenting) (noting scholars have not been able to identify any founding-era laws disarming all felons). Also, arson was defined far more

narrowly at the time of the founding. The historical crime was limited to arson of dwellings; it did not extend to the burning of vehicles, even those within the curtilage of the dwelling. See John Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295,

299–300, 309 (Spring 1986).

The Government moved for summary affirmance. It noted that

Fifth Circuit precedent foreclosed Flores’s facial and Commerce

Clause challenges to § 922(g)(1). The Government did not address

Flores’s argument regarding vehicular arson. Instead, it argued

that Diaz foreclosed Flores’s challenge because, like Diaz, Flores

had a prior conviction for felony theft.

Flores opposed the Government’s motion because the factual

basis for his guilty plea rested only on his convictions for vehicular

arson; the factual basis did not mention Flores’s prior conviction

for felony theft. He further argued that Diaz’s reasoning did not

foreclose his argument regarding vehicular arson, for the reasons

articulated in his brief.

The Fifth Circuit affirmed. Pet. App. 1a–2a. Although it denied

the Government’s motion for summary affirmance, it held that “the

Government is correct that Flores cannot meet his burden of showing it is plainly erroneous to apply § 922(g)(1) to him based on his

prior felony theft conviction.” Pet App. 2a (citing United States v.

Schnur, 132 F.4th 863, 870–71 (5th Cir. 2025), 2 and United States

v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003)). The court also rejected Flores’s Commerce Clause and facial Second Amendment

challenges as foreclosed by Diaz. Pet. App. 1a–2a.

2 Schnur held that Diaz’s holding regarding car theft applied to

a defendant with prior convictions for burglary and robbery.

Schnur, 132 F.4th at 870.

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 text-andhistory framework but reach dramatically different results. Examining the text, the circuits disagree about whether felons are part

of “the people” protected by the Second Amendment. And in analyzing the historical evidence, the circuits are split over which traditions justify § 922(g)(1), whether the statute is vulnerable to asapplied challenges, and (if so) what standard to apply.

1. The Second Circuit recently rejected a facial challenge to

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

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

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

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

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

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

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

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

approach to determine if certain nonviolent felonies exempted a

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

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

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

it has long been permissible to regulate firearms possession

through legislative proscription on a class-wide basis, without a

particularized finding that the individuals disarmed pose a threat

to society.” Id. at 78–79.

2. The Third Circuit, sitting en banc, struck down § 922(g)(1)

as applied to an individual convicted of food stamp fraud who did

not “pose[ ] a physical danger to others.” Range v. Attorney General, 124 F.4th 218, 232 (3d Cir. 2024). The court held that the

plaintiff was part of “the people” protected by the Second Amendment despite his prior conviction. Id. at 226–28. And the court held

that the government failed to show “a longstanding history and

tradition of depriving people like [the plaintiff] of their firearms.”

Id. at 232. In doing so, the court rejected the government’s reliance

on status-based restrictions, emphasizing that founding-era laws

disarmed distrusted groups—like loyalists, Native Americans, religious minorities, and Black Americans—based on fear of rebellion. Id. at 229–30. The court also dismissed the government’s

“dangerousness” principle, which would encompass even non-violent offenders, as “far too broad.” Id. at 230 (cleaned up). Finally,

the court rejected the government’s reliance on capital punishment

and forfeiture, explaining that “the Founding-era practice of punishing some nonviolent crimes with death does not suggest that

the particular (and distinct) punishment at issue here—de facto

lifetime disarmament for all felonies and felony-equivalent misdemeanors—is rooted in our Nation’s history and tradition.” Id. at

230–31. However, the court subsequently held that a prosecution

under § 922(g)(1) is justified as applied to “a convict on supervised

release.” United States v. Moore, 111 F.4th 266, 269–73 (3d Cir.

2024), cert. denied, No. 24-968 (U.S. Jun. 30, 2025).

3. The Fourth Circuit takes a much different approach, refusing to entertain as-applied challenges and upholding § 922(g)(1)

“without regard to the specific conviction that established [a person’s] inability to lawfully possess firearms.” United States v.

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

(U.S. Jun. 2, 2025). The court provided two alternative grounds for

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

Id. at 702–04. Those earlier cases, in turn, relied on Heller’s statement that felon-in-possession bans are “presumptively lawful” and

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

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

Bruen’s text-and-history test. Id. at 704. At the first step, the court

held that “the Second Amendment protects firearms possession by

the law-abiding, not by felons.” Id. at 705. And at the second step,

the court concluded that legislatures could categorically disarm

groups from possessing firearms in a historical analysis mirroring

the Eighth Circuit’s discussed below. Id. at 705–08.

4. The

Sixth

Circuit

allows

as-applied

challenges

§ 922(g)(1) by individuals who show that they are “not dangerous.”

United States v. Williams, 113 F.4th 637, 657, 663 (6th Cir. 2024).

The court first confirmed that felons are part of “the people” protected by the Second Amendment. Id. at 648–50. Next, the court

found historical support for disarming “presumptively dangerous”

groups who posed a threat to public order—like religious minorities, Native Americans, loyalists, and freedmen—but explained

that these laws all allowed individuals to show that they posed no

danger. Id. at 657. So the court held that an individual must be

given an opportunity to show that he is “not dangerous” and “falls

outside of § 922(g)(1)’s constitutionally permissible scope.” Id. In

conducting this dangerousness inquiry, the court explained that

courts can “consider a defendant’s entire criminal record—not just

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

659–60. The Sixth Circuit extended this reasoning to hold that,

like the Third Circuit, the nation’s historical tradition of “disarming the dangerous” and “forfeiture laws” “also supports disarming

those on parole, probation, or supervised release.” United States v.

Goins, 118 F.4th 794, 801–02 (6th Cir. 2024) (citing Moore, 111

F.4th at 269–72).

5. The Seventh Circuit has assumed that as-applied challenges to § 922(g)(1) are available. United States v. Gay, 98 F.4th

843, 846 (7th Cir. 2024). But the court concluded that the defendant in Gay—who had convictions for violent felonies and was on

parole when he possessed a gun—was “not a ‘law-abiding, responsible’ person who has a constitutional right to possess firearms.”

Id. at 847 (quoting Bruen, 597 U.S. at 26, 70).

6. The Eighth Circuit has upheld § 922(g)(1) as constitutional

across the board with “no need for felony-by-felony litigation.”

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

en banc denied, 121 F.4th 656 (8th Cir. 2024), cert. denied, No. 246517 (U.S. May 19, 2025). Based on historical laws prohibiting certain groups of people—religious minorities, Native Americans, and

those who refused to declare an oath of loyalty—from possessing

guns, the court reasoned that legislatures have long exercised authority to disarm broad categories of people who are “not law-abiding” or “presented an unacceptable risk of danger if armed.” Id. at

1126–28. Although the Third and Sixth Circuits surveyed similar

laws and found that they did not support disarming individuals

who pose no risk of danger, the Eighth Circuit disagreed. The court

explained that “not all persons disarmed under historical precedents … were violent or dangerous,” so “there is no requirement

for an individualized determination of dangerousness as to each

person in a class of prohibited persons.” Id. at 1128.

7. A Ninth Circuit panel held that § 922(g)(1) is unconstitutional as applied to a defendant with only non-violent convictions.

United States v. Duarte, 101 F.4th 657, 661 (9th Cir. 2024), reh’g

en banc granted, opinion vacated, 108 F.4th 786 (9th Cir. 2024).

Sitting en banc, however, the court is aligned with the Second,

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

“§ 922(g)(1) is not unconstitutional as applied to non-violent felons.” United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025).

The court relied on this Court’s repeated assurances that prohibitions on the possession of a firearm by felons are presumptively

lawful and that Bruen and Rahimi did not disrupt the court’s preBruen precedent that foreclosed Second Amendment challenges to

§ 922(g)(1). Id. at 750–52. It then applied Bruen’s test to confirm

its reading that no felony-by-felony evaluation of § 922(g)(1) is required. Id. at 761. While the court found that the conduct proscribed by § 922(g)(1) is covered by the plain text of the Second

Amendment, id., the court held that the government met its burden under Bruen’s second step based on historical evidence consistent with “two regulatory principles that: (1) legislatures may

disarm those who have committed the most serious crimes; and (2)

legislatures may categorically disarm those they deem dangerous,

without an individualized determination of dangerousness,” id. at

761–62.

8. The Tenth Circuit has held that § 922(g)(1) is constitutional

as applied to “all individuals convicted of felonies” with no need to

“draw[ ] constitutional distinctions based on the type of felony involved.” Vincent v. Bondi, 127 F.4th 1263, 1265 (10th Cir. 2025),

pet. for cert. filed, No. 24-1155 (U.S. May 8, 2025). But the court

did not engage in Bruen’s text-and-history analysis. Instead, the

court held that it remained bound by pre-Bruen precedent. Id. at

1264–65. That precedent, in turn, foreclosed as-applied challenges

to § 922(g)(1) based on Heller’s statement that prohibitions on the

possession of firearms by felons were “longstanding” and “presumptively lawful.” Id. at 1265. So the court held that “the Second

Amendment doesn’t prevent application of § 922(g)(1) to nonviolent offenders.” Id. at 1266.

9. The Eleventh Circuit has also held—without conducting a

historical analysis—that statutes disqualifying felons from possessing a firearm under any and all circumstances do not offend

the Second Amendment. United States v. Dubois, 139 F.4th 887,

893 (11th Cir. 2025). Like the Second and Tenth Circuits, the court

held that its pre-Bruen precedent—which relied on Heller—remained binding. Id. Thus, the court reaffirmed its conclusion that

felons are categorically disqualified from exercising their Second

Amendment right under Heller. Id. at 893–94.

10. The Fifth Circuit’s decision below underscores the deep divisions between the courts of appeals.

a. The Fifth Circuit splits with other circuits on two preliminary questions. Unlike the Second, Fourth, Ninth, Tenth, and

Eleventh Circuits—which have held that they remain bound by

their pre-Bruen precedent—the Fifth Circuit agrees with the Third

and Sixth Circuits that Bruen rendered its prior precedent obsolete. Diaz, 116 F.4th at 466. And while the Tenth and Eleventh Circuits have declined to conduct any historical analysis based on Heller’s “presumptively lawful” language, the Fifth Circuit joined the

Third and Sixth Circuits in refusing to treat that language as controlling. 3 Id. Instead, these courts acknowledge that Bruen requires a full text-and-history analysis. Id.

b. At Bruen’s first step, the Fifth Circuit adopted the majority

view shared by the Second, Third, and Sixth Circuits—but split

with the Fourth Circuit—by holding that felons are part of “the

people” protected by the Second Amendment. Id. at 466–67.

c. At the second step, the Fifth Circuit’s historical analysis diverges from other circuits in several respects. The Second, Fourth,

Eighth, and Ninth Circuits have held that history supports upholding § 922(g)(1) regardless of a defendant’s underlying conviction. But the Fifth Circuit left the door open for “as-applied challenges by defendants with different predicate convictions.” Diaz,

116 F.4th at 469 & 470 n.4. At first, the Fifth Circuit’s limited its

analysis to whether the felony predicates that triggered § 922(g)(1)

were relevantly similar to crimes that subjected the convictions to

“serious and permanent punishment” at the founding. Diaz, 116

F.4th at 470 & n.4. This is different than the line drawn by the

Third Circuit (whether a person poses a physical danger to others)

3 The Fifth Circuit expressly rejected the Eleventh Circuit’s re-

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

mentally ill’ language in upholding the constitutionality of

§ 922(g)(1).” Diaz, 116 F.4th at 466 n.2.

and the Sixth Circuit (whether a person is dangerous). The Fifth

Circuit has since held that § 922(g)(1) is constitutional as applied

to individuals convicted of “violent crimes.” United States v. Bullock, 123 F.4th 183, 185 (5th Cir. 2024). And the Fifth Circuit has

held that defendants who were on supervised release when they

possessed a firearm can be disarmed under § 922(g)(1), joining the

Third and Sixth Circuits. See Giglio, 126 F.4th at 1044; Contreras,

125 F.4th at 732–33.

The courts of appeals are fractured over how to conduct the

Second Amendment analysis, and the splits are entrenched and

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

of the right to keep and bear arms.

II.

The decision below is wrong and conflicts with this

Court’s precedent.

The Fifth Circuit’s decision in Diaz, followed by the panel below, correctly held that, under the plain text of the Second Amendment, felons are part of “the people” protected by the Amendment.

116 F.4th at 467. 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 has 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

Flores.

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

it imposes an unprecedented lifetime ban on firearm

possession.

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

because it imposes a sweeping, historically unprecedented lifetime

ban that prevents millions of Americans from possessing firearms

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

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

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

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

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

That is hardly surprising. When Congress passed the modern

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

than a half-century before Bruen—it did not believe that the Second Amendment protected an individual right to keep and bear

arms. 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”—it employed an “expansive legislative approach” to pass a

“sweeping prophylaxis … against misuse of firearms.” Lewis, 445

U.S. at 61, 63. And that sweeping, permanent prohibition on gun

possession imposes a burden far broader than any firearm regulation in our Nation’s history.

2. The Fifth Circuit has recognized that § 922(g)(1)’s permanent disarmament requires a historical analogue that also permanently prevented individuals from possessing guns. See Diaz, 116

F.4th at 469. But the court did not cite any historical firearm regulation imposing permanent disarmament. 4 Instead, the court re-

4 In its line of cases holding that § 922(g)(1) is constitutional as

applied to someone convicted of a violent crime, the Fifth Circuit

has cited the affray laws. Bullock, 123 F.4th at 185. But there is no

indication that those laws permanently deprived individuals of the

right to keep and bear arms.

lied on capital punishment and forfeiture laws as historical analogues justifying § 922(g)(1). Id. at 467–68. That reliance conflicts

with this Court’s precedent in three ways. 5

a. This Court requires the government to show that a modern

gun law aligns with our “historical tradition of firearm regulation.”

Bruen, 597 U.S. at 24 (emphasis added); Rahimi, 602 U.S. at 691

(same). In other words, the government’s historical analogues

must regulate firearms. In Rahimi, this Court relied only on historical laws that “specifically addressed firearms violence.” 602

U.S. at 694–95. So too in Bruen. 597 U.S. at 38–66. Capital pun-

5 The Fifth Circuit’s decision also misstates the historical evi-

dence in three ways. First, the court cited a founding-era New York

law as “authorizing the death penalty for theft of chattels worth

over five pounds.” Diaz, 116 F.4th at 468. But theft is not among

the crimes subject to the death penalty under that law. See Act of

Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65. Second, despite the

court’s characterization of forfeiture laws as a type of “permanent”

disarmament (Diaz, 116 F.4th at 469, 471), “[f]orfeiture still allows

a person to keep their other firearms or obtain additional ones.”

Rahimi, 602 U.S. at 760 (Thomas, J., dissenting). Third, although

the court stated (Diaz, 116 F.4th at 468–69) that individuals convicted of horse theft “were often subject to the death penalty,” the

only source it cited explains that “hardly any horse thieves were

executed.” Kathryn Preyer, Crime and Reform in Post-Revolutionary Virginia, 1 LAW & HIST. REV. 53, 73 (1983).

ishment and estate forfeiture, however, are not firearm regulations. So they cannot justify § 922(g)(1). The Fifth Circuit reached

a contrary conclusion by misreading Rahimi.

First, the Fifth Circuit asserted that Rahimi “consider[ed] several laws that were not explicitly related to guns.” Diaz, 116 F.4th

at 468. But Rahimi says otherwise. In Rahimi, this Court relied on

two historical legal regimes—surety laws and going armed laws—

that both “specifically addressed firearms violence.” 602 U.S. at

694–95. To be sure, surety laws were not “passed solely for the purpose of regulating firearm possession or use.” Diaz, 116 F.4th at

468. But this Court emphasized that, “[i]mportantly for this case,

the surety laws also targeted the misuse of firearms.” Rahimi, 602

U.S. at 696 (emphasis added). In other words, historical laws that

did not target the misuse of firearms—like capital punishment and

estate forfeiture—are not proper analogues.

Second, the Fifth Circuit noted that this Court accepted a

greater-includes-the-lesser argument in Rahimi. Diaz, 116 F.4th at

469. That is true as far as it goes. Rahimi held that “if imprisonment was permissible to respond to the use of guns to threaten the

physical safety of others, then the lesser restriction of temporary

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

not follow, as the Fifth Circuit concluded, that “if capital punishment was permissible to respond to theft, then the lesser restriction of permanent disarmament that § 922(g)(1) imposes is

also permissible.” Diaz, 116 F.4th at 469. 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 and forfeiture simply did not target gun violence.

b. This Court has also emphasized that the right to bear arms

“is not a second-class right, subject to an entirely different body of

rules than the other Bill of Rights guarantees.” Bruen, 597 U.S. at

70 (cleaned up). But the Fifth Circuit’s reasoning—that because

capital punishment is an “obviously permanent” deprivation of an

individual’s right to bear arms, the lesser restriction of permanent

disarmament is permissible for individuals who are not executed,

Diaz, 116 F.4th at 469—conflicts with how the Constitution treats

other fundamental rights.

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

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

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

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

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

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

free speech because felons lost that right via execution at the time

of the founding.” Kanter, 919 F.3d at 461–62 (Barrett, J., dissenting). “The obvious point that the dead enjoy no rights does not tell

us what the founding-era generation would have understood about

the rights of felons who lived, discharged their sentences, and returned to society.” Id. at 462. Rather, “history confirms that the

basis for the permanent and pervasive loss of all rights cannot be

tied generally to one’s status as a convicted felon or to the uniform

severity of punishment that befell the class.” Id. at 461.

c. Finally, this Court has expressed “doubt that three colonial

regulations could suffice to show a tradition.” Bruen, 597 U.S. at

46. But the Fifth Circuit relied on only three laws to establish a

tradition of permanently punishing individuals who have been

convicted of theft: a colonial Massachusetts law, a founding-era

New York law, and a post-revolutionary Virginia law. Diaz, 116

F.4th at 468–69. Putting to one side whether the court’s reading of

these laws is correct, this limited historical evidence is too slender

a reed to establish a tradition justifying the deprivation of a fundamental constitutional right.

3. A law is not compatible with the Second Amendment if it

regulates the right to bear arms “to an extent beyond what was

done at the founding.” Rahimi, 602 U.S. at 692. Section 922(g)(1)

does just that. It imposes a lifetime ban on firearm possession that

would have been unimaginable to the Founders. Thus, § 922(g)(1)

facially violates the Second Amendment because there are “no set

of circumstances” under which it is valid. See Rahimi, 602 U.S. at

693 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

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

individuals based on their prior non-violent felony

convictions.

1. Even if § 922(g)(1) is facially constitutional, the statute violates the Second Amendment as applied to individuals who do not

pose a present threat of violence based on their prior convictions.

The Fifth Circuit seems to have acknowledged as much, explaining

that the historical analogues that support applying the statute to

individuals with violent convictions lose their force when an individual’s “underlying convictions do not inherently involve a threat

of violence.” Diaz, 116 F.4th at 471 n.5. Indeed, the government has

not cited any tradition of disarming non-violent individuals. The

government’s historical evidence shows—at most—a tradition of

disarming violent individuals who threaten armed insurrection or

presently threaten the physical safety of others. See Kanter, 919

F.3d at 454 (Barrett, J., 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”).

2. Flores appealed his judgment of conviction under § 922(g)(1)

to challenge the criminal penalties the government sought to impose for violating that statute. The government was thus obligated

to defend the appealed conviction by demonstrating that applying

§ 922(g)(1) to someone based on the felonies identified in Flores’s

guilty plea—vehicular arson—is consistent with our Nation’s historical tradition. See Bruen, 597 U.S. at 29. Nothing in Bruen or

Rahimi suggests that that inquiry turns on an independent assessment of whether there may be some other reason why Flores could

constitutionally be disarmed. See Rahimi, 602 U.S. 690, 700–02

(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 disarm him on another basis); see also id. at 777

(Thomas, J., dissenting) (“This case is not about whether States

can disarm people who threaten others.… Instead, the question is

whether the Government can strip the Second Amendment right

of anyone subject to a protective order[.]”). Limiting the analysis to

whether § 922(g)(1)’s permanent prohibition on firearm possession

imposes a burden on the Second Amendment right consistent with

our Nation’s tradition requires the court to review how the law actually regulates that behavior. See Williams v. Illinois, 399 U.S.

235, 238–40 (1970) (holding that the law as it was actually enacted

and enforced violated the defendant’s equal protection rights and

rejecting the state’s argument that the statute was “not constitutionally infirm simply because the legislature could have achieved

the same result by some other means”).

Indeed, other constitutional questions are similarly limited to

the particular law being challenged. See, e.g., TikTok v. Garland,

145 S. Ct. 57, 68 (2025) (“[W]e look [only] to the provisions of the

Act that give rise to the effective TikTok ban that petitioners argue

burdens their First Amendment rights” to address their as-applied

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

n.5 (1990) (holding that the government could not criminally punish a defendant for burning Post Office flag under a law specifically

outlawing flag burning, even though he could be subject to prosecution under a different statute based on the same conduct);

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

a law that categorically banned the display of signs outside its

building under the First Amendment, even though the same behavior may have been regulated through “reasonable time, place

and manner restrictions”).

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.

Even beyond new prosecutions, § 922(g)(1)’s reach is staggering. The statute prohibits millions of Americans from exercising

their right to keep and bear arms for the rest of their lives. Recent

estimates of the number of individuals with felony convictions

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

Felon-in-Possession Laws, 43 CARDOZO L. REV. 1573, 1591 (2022)

(citations omitted). And § 922(g)(1) is particularly troubling because most of the individuals it prohibits from possessing firearms

are peaceful, with convictions for only non-violent 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.

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. Flores thoroughly briefed

his facial and as-applied Second Amendment challenges in both

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

Fifth Circuit squarely rejected both challenges.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted.