Petition for Writ of Certiorari — Timothy LeBlanc, Petitioner v. United States

Supreme Court briefNov 3, 2025

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No. ________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

TIMOTHY LEBLANC,

Petitioner,

versus

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

__________________________________________________________________

REBECCA L. HUDSMITH

Federal Public Defender

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of

Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

QUESTION PRESENTED

1. Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C.

§ 922(g)(1), plainly unconstitutional on its face under New York State Rifle &

Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), because it is permanent

and applies to all persons convicted of felonies?

2. Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C.

§ 922(g)(1), unconstitutional as applied to individuals with decades-old prior

convictions from their youth who have not been shown to be currently

dangerous and seek to possess a firearm for self-defense?

1

TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................... 1

TABLE OF CONTENTS ............................................................................................... 2

APPENDIX INDEX ...................................................................................................... 3

TABLE OF AUTHORITIES ......................................................................................... 4

OPINIONS BELOW ..................................................................................................... 7

JURISDICTION............................................................................................................. 7

STATUTORY PROVISIONS INVOLVED .................................................................... 8

INTRODUCTION .......................................................................................................... 9

STATEMENT OF THE CASE..................................................................................... 10

I.

Timothy LeBlanc possessed a handgun in his vehicle for personal

protection and self-defense .......................................................................... 11

II.

LeBlanc asserted a Second Amendment claim below and the district

court dismissed the indictment finding a Second Amendment violation .. 12

III.

The Fifth Circuit reversed and remanded LeBlanc's case based on

intervening Fifth Circuit precedent ............................................................ 14

REASONS FOR GRANTING THE WRIT ................................................................. 15

I.

Section 922(g)(1) is facially unconstitutional under the Second

Amendment because there is no historical tradition of prohibiting all

felons from possessing all firearms for life................................................ 16

A.

Bruen represented a fundamental shift in Second Amendment

B.

Under the new framework, Section 922(g)(1) violates the Second

Amendment because firearm possession is protected by the

Amendment's plain text, and the government cannot show a

historical tradition of categorically disarming felons ...................... 18

analysis .............................................................................................. 16

2

II.

III.

1.

The text of the Second Amendment covers LeBlanc's conduct,

and he is among "the people" the Amendment protects ............ 19

2.

There is no relevantly similar historical regulation that bans

firearm possession for life ........................................................... 20

Section 922(g)(1) is unconstitutional as-applied to someone with a

decades-old convictions that occurred during that person's youth when

the evidence supports the person is rehabilitated .................................... 27

A.

An individual's prior alleged "dangerousness" cannot support a

lawful lifetime ban on his possession of firearms ............................ 28

B.

There is no historical tradition justifying a categorical possession

ban for those who have completed their sentence and have not

been shown to be presently dangerous ............................................ 30

The question whether Section 922(g)(1) violates the Second Amendment

has divided the courts of appeals and its resolution is of great

importance ................................................................................................ 33

CONCLUSION ............................................................................................................ 37

APPENDIX INDEX

Fifth Circuit opinion, August 5, 2025 ...............................................................App. 001

District court judgment dismissing indictment, December 19, 2023 ..............App. 007

District court ruling and order dismissing indictment, December 19, 2023 ...App. 008

3

TABLE OF AUTHORITIES

Binderup v. Attorney General of the U.S., 836 F.3d 336 (3d Cir. 2016) (en banc)

...................................................................................................................... 24-25

District of Columbia v. Heller, 554 U.S. 570 (2008) ............................................passim

Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017) ...................................................... 20

Folajtar v. Attorney General of the United States, 980 F.3d 897 (3d Cir. 2020) ...... 24

Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) ............................................................. 16

Jennings v. State, 5 Tex. Ct. App. 298 (1878) ............................................................ 26

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting) ..... 13, 23-24, 33

McDonald v. City of Chicago, 561 U.S. 742 (2010) ............................................... 16, 18

National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 700 F.3d 185 (5th Cir. 2012) ..................................... 17

New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) ....passim

Range v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024) (en banc)

................................................................................................................ 31, 35-36

United States v. Charles, No. 23-50131, 2025 WL 416092 (5th Cir. Feb. 6, 2025)

(unpublished) .................................................................................................... 14

United States v. Chester, 628 F.3d 673 (5th Cir. 2010) ....................................... 17, 24

United States v. Collette, No. 22-51062, 2024 WL 4457462 (5th Cir. Oct. 10, 2024)

(unpublished) .................................................................................................... 14

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) ........................................... 14, 35

United States v. Duarte, No. 22-50048, 137 F.4th 743 (9th Cir. May 9, 2025) (en

banc) ............................................................................................................. 34-35

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024) ......................................... 34

United States v. Lara, 815 F.3d 605 (9th Cir. 2016) .................................................. 20

4

United States v. LeBlanc, No. 24-30036, 2025 WL 2218881 (5th Cir. Aug. 5, 2025)

(unpublished) ................................................................................................ 7, 14

United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020) .......................................... 17

United States v. Rahimi, 602 U.S. 680 (2024) .....................................................passim

United States v. Schnur, 132 F.4th 863 (5th Cir. 2025) ............................................ 14

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)..................................... 19-20

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)..................................... 32-34

STATUTES

U.S. Const. Amend. I ................................................................................................... 20

U.S. Const. Amend. II (“Second Amendment”)....................................................passim

U.S. Const. Amend. IV................................................................................................. 20

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

18 U.S.C. § 922(g)(8) ......................................................................................... 20, 28-30

La. Rev. Stat. § 14:64 ................................................................................................... 11

La. Rev. Stat. § 14:67 ................................................................................................... 11

La. Rev. Stat. § 14:95 ................................................................................................... 11

1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688) ................................... 24

Secretary of the Commonwealth, Acts and Resolves of Massachusetts 1786–87

(1893) ............................................................................................................ 25-26

OTHER

4 William Blackstone, Commentaries on the Laws of England 250.......................... 30

Adam Winkler, Heller’s Catch-22, 56 U.C.L.A. L. Rev. 1551 (2009) ......................... 22

C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub.

Policy 695 (2009) ............................................................................................... 23

5

Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous

Persons from Possessing Arms, 20 Wyo. L. Rev. 249 (2020) ...................... 23-25

Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep

Arms in Early America: The Legal Context of the Second Amendment, 25

Law & Hist. Rev. 139 (2007)............................................................................. 25

Steven G. Bradbury, et al., Whether the Second Amendment Secures an

Individual Right, 28 OP. O.L.C. 126 (2004) ..................................................... 26

6

No. ________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

TIMOTHY LEBLANC,

Petitioner,

versus

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

__________________________________________________________________

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit

affirming petitioner’s conviction and sentence can be found at United States v.

LeBlanc, No. 24-30036, 2025 WL 2218881 (5th Cir. Aug. 5, 2025) (unpublished), and

is set forth at App. 001.

JURISDICTION

The judgment of the court of appeals was entered on August 5, 2025. The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

7

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 922(g)(1) states in relevant part:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year;

***

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

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

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.

The Second Amendment to the U.S. Constitution provides in relevant part:

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.

8

INTRODUCTION

This case presents the most important Second Amendment question since

Bruen. Federal courts are deeply split over whether 18 U.S.C. § 922(g)(1)’s lifetime

ban on firearm possession by all felons can survive constitutional scrutiny. The Third

Circuit has held the statute unconstitutional as applied to nonviolent felons. The

Eighth and Ninth Circuits have entirely foreclosed as-applied challenges. The Fifth

Circuit applies a predicate-offense-only test, while the Sixth Circuit uses a

dangerousness inquiry.

This constitutional chaos creates a lottery where identical conduct yields vastly

different outcomes based solely on geography. Section 922(g)(1) is the most frequently

prosecuted federal firearm offense, imprisoning thousands annually and deterring

countless others from exercising what may be their constitutional right to armed selfdefense.

Petitioner Timothy LeBlanc exemplifies the constitutional problem. Twenty

years ago, as a teenager and young adult, he committed theft and robbery. Today, he

is a rehabilitated 40-year-old father who works full-time, pays child support, and has

complied perfectly with all pretrial conditions. The district court found no evidence

he posed any threat to public safety or used his firearm unlawfully. Yet under the

Fifth Circuit’s approach, these individual circumstances are irrelevant to his

permanent disarmament.

The historical evidence cannot support such sweeping and permanent

deprivation of constitutional rights. When the Founding generation imposed

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temporary disarmament through surety laws or limited carrying restrictions through

affray statutes, they never embraced the categorical, lifetime ban that § 922(g)(1)

imposes on all persons with felony convictions.

Only this Court can resolve the deepening circuit split and provide the clarity

that courts and citizens desperately need.

STATEMENT OF THE CASE

When the appellee Timothy LeBlanc was between the ages of 18 and 20 years

old, he committed a theft and a robbery. Nearly twenty years later, LeBlanc did what

countless Americans do every day – he kept a firearm for personal protection. Yet

because of mistakes made two decades ago when he was barely an adult, the

government seeks to permanently strip him of this fundamental right and send him

to federal prison.

The district court recognized what the prosecution would not: that the Second

Amendment’s guarantees cannot be forever denied to those who have paid their debt

to society and rebuilt their lives. And that is exactly what LeBlanc has done as shown

by his performance on pre-trial release since June of 2023, as he has maintained

steady employment, continued to provide for his young child, and has perfectly

complied with all conditions of release. As recognized by the district court below,

LeBlanc is living proof that redemption is possible, and those who have been

rehabilitated are worthy of having the constitutional right to keep and bear arms

once again.

10

Nevertheless, the government appealed the district court’s dismissal of this

case under the Second Amendment and the Fifth Circuit reversed based upon

intervening precedent in another case. LeBlanc now appeals to this Court for

correction of the violation of his Second Amendment rights.

I.

Timothy LeBlanc possessed a handgun in his vehicle for personal protection

and self-defense

In October 2022, the appellee Timothy LeBlanc, now a responsible 40-year-old

father and full-time Walmart employee, was fully cooperative during a routine traffic

stop in Baton Rouge. When officers noticed a handgun in his vehicle, LeBlanc

immediately disclosed its ownership and consented to a vehicle search,

demonstrating his commitment to transparency and respect for law enforcement. The

firearm was never used unlawfully, and LeBlanc possessed it solely for personal

protection. ROA.103-04, 112.

The government’s case against LeBlanc rests entirely on two decades-old

convictions from his youth. In 2004, when he was only 18, he committed a theft over

$500 in violation of La. Rev. Stat. § 14:67 and received a sentence of probation.

ROA.189. At 20, he was involved in an armed robbery in violation of La. Rev. Stat. §

14:64 and was sentenced to prison time for both the robbery and for violating the

conditions of his probation on the theft conviction. ROA.189. These mistakes, made

by a teenager and young adult, occurred nearly twenty years ago. In the intervening

years, LeBlanc’s only criminal conviction was a 2019 misdemeanor conviction for

possessing a firearm in violation of La. Rev. Stat. § 14:95. ROA.190.

11

Since his youthful indiscretions, LeBlanc has changed his life. He maintains

stable employment, responsibly shares custody of his young child, and voluntarily

pays child support—clear evidence of his rehabilitation and commitment to being a

productive member of society. ROA.104-05, 187. Despite this remarkable turnaround,

LeBlanc now faces a federal charge for possession of a firearm by a prohibited person.

After his federal indictment in May 2023, LeBlanc’s continued reliability has been

demonstrated by his perfect compliance with pretrial release conditions. The

magistrate judge’s decision to release him pending trial reflects an assessment that

LeBlanc poses no risk to the community—a judgment his conduct has thoroughly

validated. ROA.14-15, 19-22.

II.

LeBlanc asserted a Second Amendment claim below and the district court

dismissed the indictment finding a Second Amendment violation

On May 24, 2023, LeBlanc was charged in a single count indictment with

unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §

922(g)(1). ROA.8. LeBlanc filed a motion to dismiss, asserting that § 922(g)(1) was

unconstitutional both facially and as applied under Bruen. ROA.38. After an

evidentiary hearing, the district court issued a comprehensive ruling dismissing the

indictment. ROA.102.

The court first ruled that the Fifth Circuit pre-Bruen cases upholding the

constitutionality on § 922(g)(1) was no longer good law post-Bruen. ROA.107-09.

Second, the court held that the Second Amendment’s plain text covered LeBlanc’s

conduct of possessing a handgun for self-defense outside the home. ROA.112-13. The

court reiterated that “there is no evidence that LeBlanc was using his firearm in an

12

unlawful way at the time of his alleged offense—before, during, or after the gun’s

discovery. Rather, LeBlanc’s unlawful ‘conduct’ was limited to merely having

possessed the gun, due to his prior felony convictions.” ROA.112.

Third, the court held that the government’s proposed historical analogues were

not “relevantly similar” to § 922(g)(1). ROA.113-17. The court refuted, in detail, the

three categories of historical regulations proffered by the government. First, the court

rejected the use of founding era laws stripping felons of political rights because the

Second Amendment confers an individual right, not a political or civic right.

ROA.117-19. Second, the court rejected the use of capital punishment because—as

applied to LeBlanc—property crimes like “robbery” were “on the whole, not capital.”

ROA.120 (quoting Kanter v. Barr, 919 F.3d 437, 459 (7th Cir. 2019) (Barrett, J.

dissenting)). Third, the court rejected the use of colonial and founding era laws

disarming untrustworthy and dangerous persons as an “at best, dubious” justification

for contemporary disarmament laws. ROA.123. The court held that the government’s

danger-based analogues fail Bruen’s why-axis because the government’s motivation

behind disarming “Loyalists, Native Americans, Quakers, Catholics, and Blacks” is

not similar to disarming felons. ROA.125-26. As a last point on the government’s

dangerous argument, the court pointed out that “the Government has failed even to

present any evidence (or argument) that Mr. LeBlanc’s prior felony convictions make

him a specific threat to ‘the public peace’ by predisposing him to ‘violence.’” ROA.126.

13

III.

The Fifth Circuit reversed and remanded LeBlanc’s case based on intervening

Fifth Circuit precedent

The government filed a notice of appeal on January 16, 2024. ROA.135. While

LeBlanc’s case was pending, the Fifth Circuit decided United States v. Diaz, 116

F.4th 458 (5th Cir. 2024), which established that Bruen abrogated the Circuit’s pre-

Bruen cases, that § 922(g)(1) was facially constitutional, but that as-applied

challenges remained viable based solely on the nature of the predicate conviction. Id.

at 465-67. Following Diaz, the Circuit began rejecting Second Amendment challenges

for defendants with theft-related felonies. See United States v. Schnur, 132 F.4th 863,

871 (5th Cir. 2025); United States v. Charles, No. 23-50131, 2025 WL 416092, at *1

(5th Cir. Feb. 6, 2025) (unpublished); United States v. Collette, No. 22-51062, 2024

WL 4457462, at *2 (5th Cir. Oct. 10, 2024) (unpublished).

The Fifth Circuit reversed the district court’s dismissal of LeBlanc’s indictment

under this precedent, holding that his theft and robbery convictions foreclosed his asapplied challenge. United States v. LeBlanc, No. 24-30036, 2025 WL 2218881 (5th

Cir. Aug. 5, 2025) (unpublished); App. 001.

14

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to resolve a deepening circuit split over the

constitutionality of 18 U.S.C. § 922(g)(1) under the Second Amendment framework

established in Bruen. The federal appellate courts have reached fundamentally

irreconcilable positions on whether the statute’s lifetime prohibition on firearm

possession by all persons with felony convictions can survive constitutional scrutiny,

creating a patchwork of conflicting precedents that denies equal treatment under

federal law.

The Third Circuit has held Section 922(g)(1) unconstitutional as applied to

individuals with non-violent felony convictions, concluding that the government

failed to demonstrate a historical tradition supporting such categorical, permanent

disarmament. In stark contrast, the Eighth and Ninth Circuits have entirely

foreclosed as-applied challenges, holding that any felony conviction categorically

removes individuals from Second Amendment protection. The Sixth Circuit has

adopted a dangerousness-based inquiry that examines an individual's entire criminal

history, while the Fifth Circuit focuses solely on the nature of the predicate offense.

The government cannot satisfy Bruen’s demanding historical test. The

Founding-era regulations cited by courts upholding Section 922(g)(1) were either

temporary in nature, geographically limited, or imposed far lesser burdens than

permanent disarmament. Surety laws preserved the right to armed self-defense while

requiring financial assurance of peaceful conduct. Affray laws prohibited only the

carrying of weapons in a manner that spread fear among the public. Neither

15

historical tradition supports the complete and permanent deprivation of Second

Amendment rights based solely on past conduct, regardless of rehabilitation, elapsed

time, or current circumstances.

Petitioner LeBlanc's case exemplifies the constitutional problem. His decadesold convictions from youth, combined with the district court's finding that he posed

no current danger and used his firearm lawfully, demonstrate that Section 922(g)(1)'s

categorical approach violates both the text and historical understanding of the Second

Amendment.

I.

Section 922(g)(1) is facially unconstitutional under the Second Amendment

because there is no historical tradition of prohibiting all felons from possessing

all firearms for life

A.

Bruen represented a fundamental shift in Second Amendment analysis

The Second Amendment to the U.S. Constitution mandates that a “well

regulated militia, being necessary to the security of a free state, the right of the people

to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. In Dist. of

Columbia v. Heller, this Court held that the Second Amendment codifies an

individual right to possess and carry weapons, explaining that the inherent right of

self-defense is central to its protections. 554 U.S. 570, 628 (2008); see also McDonald

v. City of Chicago, 561 U.S. 742, 767 (2010) (holding “that individual self-defense is

the central component of the Second Amendment right”).

Following Heller (but before Bruen), the Fifth Circuit and others “adopted a

two-step inquiry for analyzing laws that might impact the Second Amendment.”

Hollis v. Lynch, 827 F.3d 436, 446 (5th Cir. 2016). First, courts asked “whether the

16

challenged law impinge[d] upon a right protected by the Second Amendment—that

is, whether the law regulate[d] conduct that falls within the scope of the Second

Amendment’s guarantee.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco,

Firearms & Explosives [NRA], 700 F.3d 185, 194 (5th Cir. 2012); see also United

States v. McGinnis, 956 F.3d 747, 754 (5th Cir. 2020). To make that determination,

courts “look[ed] to whether the law harmonize[d] with the historical traditions

associated with the Second Amendment guarantee.” NRA, 700 F.3d at 194. If the

regulated conduct was deemed to fall outside the scope of the Second Amendment’s

protection under that framework, then the law was deemed constitutional without

further analysis. McGinnis, 956 F.3d at 754.

However, if the regulated conduct fell within the protective scope of the Second

Amendment, courts proceeded to step two: determining and applying “the

appropriate level of means-ends scrutiny—either strict or intermediate.” Id. (internal

quotation marks and citation omitted). “[T]he appropriate level of scrutiny

‘depend[ed] on the nature of the conduct being regulated and the degree to which the

challenged law burden[ed] the right.” NRA, 700 F.3d at 195 (quoting United States

v. Chester, 628 F.3d 673, 682 (5th Cir. 2010)). Under that framework, “a ‘regulation

that threaten[ed] a right at the core of the Second Amendment’—i.e., the right to

possess a firearm for self-defense in the home—‘trigger[ed] strict scrutiny,’ while ‘a

regulation that does not encroach on the core of the Second Amendment’ [was]

evaluated under intermediate scrutiny.” McGinnis, 956 F.3d at 754 (quoting NRA,

700 F.3d at 194).

17

In Bruen, this Court expressly abrogated the two-step inquiry adopted by the

Fifth Circuit and others and announced a new framework for analyzing Second

Amendment claims. The Court reasoned that “[s]tep one of the predominant

framework is broadly consistent with Heller, which demands a test rooted in the

Second Amendment’s text, as informed by history.” Bruen, 597 U.S. at 19. However,

Bruen rejected the practice of applying “means-end scrutiny” to conduct deemed

protected (i.e., step two of the old framework), explaining that “Heller and McDonald

do not support applying means-end scrutiny in the Second Amendment context.” Id.

Under Bruen’s newly announced framework, “when the Second Amendment’s plain

text covers an individual’s conduct, the Constitution presumptively protects that

conduct.” Id. at 17. And, upon such a finding, “[t]he 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 upon the government making such a showing

may a court “conclude that the individual’s conduct falls outside the Second

Amendment’s ‘unqualified command.’” Id. (citation omitted). In other words, for a

firearm regulation to pass constitutional muster, “the government must affirmatively

prove that its firearms regulation is part of the historical tradition that delimits the

outer bounds of the right to keep and bear arms.” Id. at 19.

B.

Under the new framework, Section 922(g)(1) violates the Second

Amendment because firearm possession is protected by the

Amendment’s plain text, and the government cannot show a historical

tradition of categorically disarming felons

Straightforward application of Bruen’s test makes clear that Section 922(g)(1)

cannot survive constitutional scrutiny, and the Fifth Circuit was wrong to hold

18

otherwise.

1.

The text of the Second Amendment covers LeBlanc’s conduct, and

he is among “the people” the Amendment protects

The plain text of the Second Amendment protects the right to possess and carry

weapons for self-defense. See Heller, 554 U.S. at 583-92. And Bruen clarified that this

right extends outside of the home. 597 U.S. at 8. Section 922(g)(1) is a permanent and

complete ban on any firearm possession by felons in any context. Thus, the statute

regulates (and in fact fully prohibits) conduct that is presumptively protected under

the plain text of the Second Amendment. As a result, the statute is presumptively

unconstitutional under Bruen. Id. at 24.

In an attempt to sidestep this straightforward conclusion, the government has

adopted a novel argument that a person’s status as a “felon” excludes that person

from the Second Amendment’s protections. But the plain text of the Second

Amendment and this Court’s precedent hold otherwise. In Heller, this Court rejected

the theory that “the people” protected by the Second Amendment was limited to a

specific subset—i.e., those in a militia. 554 U.S. at 579-81, 592-600. The Court

explained that when the Constitution refers to “‘the people,’ the term unambiguously

refers to all members of the political community, not an unspecified subset,” and there

is thus a “strong presumption that the Second Amendment right is exercised

individually and belongs to all Americans.” Id. at 580-81 (emphasis added).

Comparison to other constitutional amendments confirms this view. As Heller

explained, “the people” is a “term of art employed in select parts of the Constitution,”

including “the Fourth Amendment, . . . the First and Second Amendments, and . . .

19

the Ninth and Tenth Amendments.” Id. (quoting United States v. Verdugo-Urquidez,

494 U.S. 259, 265 (1990)). It is beyond challenge that felons are among “the people”

whose “persons, houses, papers, and effects” enjoy Fourth Amendment protection.

U.S. Const. Amend. IV; see United States v. Lara, 815 F.3d 605 (9th Cir. 2016). And

felons likewise enjoy “the right of the people” to “petition the government for a redress

of grievances.” U.S. Const. Amend. I; see Entler v. Gregoire, 872 F.3d 1031, 1039 (9th

Cir. 2017). If a person with a felony conviction is one of “the people” protected by the

First and Fourth Amendments, Heller teaches that he is one of “the people” protected

by the Second Amendment, too.

This view was confirmed when this Court addressed a challenge to a different

subsection of § 922(g) last term in United States v. Rahimi, 602 U.S. 680 (2024). The

Court analyzed historical laws dealing with dangerous persons to find that § 922(g)(8)

was consistent with historical tradition and therefore constitutional. Id. at 693-96.

But the Court never suggested for a moment that Mr. Rahimi was not one of “the

people” protected by the Second Amendment. Accordingly, LeBlanc is among “the

people” to whom the Second Amendment applies.

2.

There is no relevantly similar historical regulation that bans

firearm possession for life

Bruen provided guidance on conducting historical analysis in the hunt for

relevantly similar regulations. The Court can consider “whether ‘historical precedent’

from before, during, and even after the founding evinces a comparable tradition of

regulation.” Bruen, 597 U.S. at 27. But Bruen reminded that “not all history is

created equal.” Id. at 34. That is because “[c]onstitutional rights are enshrined with

20

the scope they were understood to have when the people adopted them.” Id.

(quotations omitted). Because the Second Amendment was adopted in 1791, earlier

historical evidence “may not illuminate the scope of the right if linguistic or legal

conventions changed in the intervening years.” Id. Similarly, post-ratification laws

that “are inconsistent with the original meaning of the constitutional text obviously

cannot overcome or alter that text.” Id. at 36 (quotations and emphasis omitted).

Bruen—and, later, Rahimi—also offered analytical guidance for evaluating

historical clues. As this Court explained in Rahimi: “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.’” Rahimi, 602 U.S. at 681 (quoting Bruen, 597 U.S. at 29). In doing so,

“[w]hy and how the regulation burdens the right are central to this inquiry.”

Id. Thus, “if laws at the founding regulated firearm use to address particular

problems, that will be a strong indicator that contemporary laws imposing similar

restrictions for similar reasons fall within a permissible category of regulations.” Id.

Importantly, though, “[e]ven 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.” Id. And this Court made clear that the burden falls

squarely on the government to “affirmatively prove that its firearms regulation is

part of the historical tradition that delimits the outer bounds of the right to keep and

bear arms.” Bruen, 597 U.S. at 19. If the government cannot do so, the infringement

on the right cannot survive.

21

In Heller, this Court confirmed an individual’s right to keep and bear arms but

cautioned that this right is “not unlimited.” 554 U.S. at 626. As an example, the Court

provided, in dicta, a non-exhaustive list of “presumptively lawful regulatory

measures”—i.e., ones that had not yet undergone a full historical analysis. Id. at 627

n.26 (emphasis added). This list included laws restricting possession by felons and

the mentally ill and the carrying of firearms in “sensitive places.” Id. at 626. Heller

emphasized that “we do not undertake an exhaustive historical analysis today of the

full scope of the Second Amendment.” Id. And since this was the Court’s “first indepth examination of the Second Amendment,” Heller explained that it could not

“clarify the entire field.” Id. at 635. But Heller promised that there would be “time

enough to expound upon the historical justifications for the exceptions we have

mentioned if and when those exceptions come before us.” Id. That time is now. The

government cannot meet its burden to establish the requisite “relevantly similar”

historical tradition. Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29).

The government cannot meet its burden to establish Section 922(g)(1)’s

historical pedigree for a simple reason: neither the federal government nor a single

state barred all people convicted of felonies until the 20th century. See, e.g., Adam

Winkler, Heller’s Catch-22, 56 U.C.L.A. L. Rev. 1551, 1563 (2009). The modern

version of Section 922(g)(1) was adopted 177 years after the Second Amendment.

Bruen, 597 U.S. at 66 n.28 (“[L]ate-19th-century evidence” and any “20th-century

evidence . . . does not provide insight into the meaning of the Second Amendment

when it contradicts earlier evidence.”).

22

Section 922(g)(1) very much contradicts earlier evidence from the relevant

historical periods: “(1) . . . early modern England; (2) the American Colonies and the

early Republic; (3) antebellum America; [and] (4) Reconstruction.” Bruen, 597 U.S. at

34. Those periods lack evidence of any analogue to Section 922(g)(1).

The government may argue that, historically, some jurisdictions sometimes

regulated firearm use by those considered presently violent. But not all people with

a felony conviction are presently violent. Moreover, the historical regulations

required an individualized assessment of a person’s threat to society. And finally, the

historical regulations almost always allowed people deemed violent to still possess

weapons for self-defense. Thus, even those convicted of serious crimes—including

rebellion—remained entitled to protect themselves in a dangerous world, with

firearms if necessary. Those laws’ targeted nature makes them a far cry from

declaring that any person, convicted of any felony, can never possess “the most

popular weapon chosen by Americans for self-defense in the home.” Heller, 554 U.S.

at 629.

England, before the founding, did not ban felons from ever again possessing a

firearm. See Kanter, 919 F.3d at 457 (Barrett, J., dissenting); C. Kevin Marshall, Why

Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Policy 695, 717 (2009);

Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons

from Possessing Arms, 20 Wyo. L. Rev. 249, 260 (2020). To the extent that England

sought to disarm individuals, those regulations usually required a more culpable

mental state and made exceptions for self-defense, both features absent from Section

23

922(g)(1). Rahimi discusses at length the surety laws and laws against affray or going

armed against the king’s subjects. 602 U.S. at 693-99.

To the extent that England tried to disarm whole classes of subjects, it did so

on discriminatory grounds that would be unconstitutional today—and yet still

permitted those targeted to keep arms for self-defense. For example, in the age of

William and Mary (both Protestants), Catholics were presumed loyal to James II (a

Catholic trying to retake the throne) and treasonous. Thus, Catholics could keep

“Arms, Weapons, Gunpowder, [and] Ammunition,” only if they declared allegiance to

the crown and renounced key parts of their faith. See Bruen, 597 U.S. at 45 n.12

(quoting 1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688)). In short, the

English never tried to disarm all felons. Rather, they tried to limit the use of firearms

by those individuals found to be violent and rebellious. And even those individuals

could keep arms for self-defense. A “relevantly similar” historical regulation that is

not. Bruen, 597 U.S. at 29.

“[T]here is little evidence of an early American practice of,” forever barring all

people convicted of a felony from ever again possessing a firearm. Bruen, 597 U.S. 1

at 46. The early United States accepted that those who committed crimes—even

serious ones—retained a right to defend themselves. That can be seen in the colonies’

and states’ statutes, early American practice, and rejected proposals from state

constitutional conventions. See Kanter, 919 F.3d at 454 (Barrett, J., dissenting);

Folajtar v. Att'y Gen. of the United States, 980 F.3d 897, 915 (3d Cir. 2020) (Bibas,

J., dissenting); Chester, 628 F.3d at 679; Binderup v. Att’y Gen. of the U.S., 836 F.3d

24

336, 368 (3d Cir. 2016) (en banc) (Hardiman, J., concurring).

To the extent that the new nation sought to disarm people, the regulatory

approach was much more limited than Section 922(g)(1). For example, the Virginia

colony disarmed Catholics, still viewed as traitors to the crown. Robert H. Churchill,

Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The

Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 157 (2007)

(citation omitted). But there was an exception for weapons allowed by a justice of the

peace “for the defense of his house and person.” Id. And following the Declaration of

Independence, Pennsylvania ordered that those who did not pledge allegiance to the

Commonwealth and renounce British authority be disarmed. Id. at 159. Thus, to the

extent that either regulation would comply with the Second Amendment, as

understood today, they required a specific finding that a specific person posed a risk

of violence to the state.

Colonial and Founding-era practice also suggests that committing a serious

crime did not result in a permanent disarmament. For example, leaders of the

seminal Massachusetts Bay colony once disarmed supporters of a banished

seditionist. Greenlee, supra, at 263 (citations omitted). Nevertheless, “[s]ome

supporters who confessed their sins were welcomed back into the community and able

to retain their arms.” Id. And in 1787, after the participants in Shay’s Rebellion

attacked courthouses, a federal arsenal, and the Massachusetts militia, they were

barred from bearing arms, for three years, not life. Id. at 268-67. In fact,

Massachusetts law required the Commonwealth to hold and then return the rebels’

25

arms after that period. Sec’y of the Commonwealth, Acts and Resolves of

Massachusetts 1786–87, at 178 (1893).

American practice and laws during the Nineteenth Century—before and after

the Civil War—also confirm that Section 922(g)(1) does not comport with the

“Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 34. The

United States continued to regulate—but not ban—firearm possession by those

feared to be violent. See id. at 55 (holding that 19th century surety laws allowed

people likely to breach the peace to still keep guns for self-defense or if they posted a

bond). But, as discussed above, that is not similar to Section 922(g)(1). There is no

evidence of a precursor to Section 922(g)(1)’s broad, categorical ban. In fact, there are

at least two documented instances where attempts to disarm a class of offenders was

rejected as inconsistent with the right to bear arms.

First, as with Shay’s Rebellion, Congress declined to disarm southerners who

fought against the Union in the Civil War. Steven G. Bradbury, et al., Whether the

Second Amendment Secures an Individual Right, 28 OP. O.L.C. 126, 226 (2004). The

reason: some northern and Republican senators feared that doing so “would violate

the Second Amendment.” Id. Second, when a Texas law ordered that people convicted

of unlawfully using a pistol be disarmed, it was struck down as unconstitutional

under the Texas constitution. Jennings v. State, 5 Tex. Ct. App. 298, 298 (1878).

In sum, the 19th century history provides clear evidence that mass

disarmament for people convicted of an offense is unconstitutional. Not only was

there a consistent practice of allowing people who broke the law to keep weapons for

26

self-defense—at least one state appellate court and Congress agreed that disarming

lawbreakers was unconstitutional. As Bruen teaches: “[I]f some jurisdictions actually

attempted to enact analogous regulations during this timeframe, but those proposals

were rejected on constitutional grounds, that rejection surely would provide some

probative evidence of unconstitutionality.” 597 U.S. at 27.

Rahimi did not affect this analysis—and, in fact, made all the clearer Section

922(g)(1)’s lack of constitutional backing. The prohibition there passed constitutional

muster because there were historical analogues temporarily disarming those proven

to be presently violent. 602 U.S. at 698-95. The restraining order subsection of

§ 922(g) passed constitutional muster because there is an individualized finding of

dangerousness, after notice and an opportunity to be heard, and the restriction lasts

only as long as the restraining order does. Id. at 686-89.

Again, “[w]hy and how the regulation burdens the right are central to this

inquiry.” Id. at 692. Section 922(g)(1) contains a lifetime prohibition on possession of

firearms by all convicted felons, without an individualized determination of ongoing

dangerousness. It therefore violates the Second Amendment on its face, and

LeBlanc’s conviction under Section 922(g)(1) must be vacated.

II.

Section 922(g)(1) is unconstitutional as-applied to someone with a decades-old

convictions that occurred during that person’s youth when the evidence

supports the person is rehabilitated

Even if § 922(g)(1) survives facial challenge, it cannot constitutionally apply to

LeBlanc. Rahimi established that disarmament based on “dangerousness” must be

temporary and requires a judicial finding. 602 U.S. at 699-701. The Court explicitly

27

rejected the government's contention that an individual “may be disarmed simply

because he is not ‘responsible.’” Id. at 701.

A.

An individual’s prior alleged “dangerousness” cannot support a lawful

lifetime ban on his possession of firearms

The Court has not endorsed a general standard of “dangerousness” justifying

lawful lifetime disarmament. Under this Court’s precedent, disarmament based on

“dangerousness” must be temporary, and it requires a judicial finding. In Rahimi, the

Court considered a Second Amendment challenge to § 922(g)(8)(C)(i), which allows

for the temporary disarmament of individuals judicially determined to pose “a

credible threat to the physical safety” of a protected person. It was agreed that the

law Rahimi challenged implicated the Second Amendment, so the question was

whether the Government could demonstrate a sufficient historical tradition. See

Rahimi, 602 U.S. at 708 (Gorsuch, J., concurring).

Rahimi “conclude[d] only this: An individual found by a court to pose a credible

threat to the physical safety of another may be temporarily disarmed consistent with

the Second Amendment.” Id. at 702. In reaching that conclusion, the Court considered

“going armed” and surety laws, finding a history supporting the claim that “[w]hen

an individual poses a clear threat of physical violence to another, the threatening

individual may be disarmed.” Id. at 698. While the Court noted that such historical

laws were not “identical” to § 922(g)(8), it determined that “[i]ts prohibition on the

possession of firearms by those found by a court to present a threat to others fits

neatly within the tradition the surety and going armed laws represent.” Id.

The Court specifically distinguished the limitations of its holding, contrasting

28

its decision to its prior holdings in Bruen and Heller. See Rahimi, 602 U.S. at 698-99.

It noted that unlike the regulation struck down in Bruen, § 922(g)(8) did not restrict

arms possession by the public generally. Id. at 698. It further noted that “Section

922(g)(8) applies only once a court has found that the defendant ‘represents a credible

threat to the physical safety’ of another.” Id. at 699 (citing § 922(g)(8)(C)(i)). This

judicial determination was crucial: “That matches the surety and going armed laws,

which involved judicial determinations of whether a particular defendant likely

would threaten or had threatened another with a weapon.” Id.

Beyond the judicial determination, the ban in § 922(g)(8) was also saved by its

temporal element: “Section 922(g)(8)’s restriction was temporary as applied to

Rahimi,” only prohibiting his firearm possession for the duration that he was subject

to the restraining order. Id. at 699. The fact that § 922(g)(8) “permits a court to disarm

a person only if, after notice and hearing, it finds that he represents a credible threat

to the physical safety of others,” and only for as long as its order is in effect, allowed

the Court to conclude that “in at least some applications, [§ 922(g)(8)] does not

diminish any aspect of the right the Second Amendment was originally understood

to protect.” Id. at 711 (Gorsuch, J., concurring).

Although the government advanced a “dangerousness” argument in Rahimi, it

was rejected by the Court in favor of the adoption of narrower principles. The Court

explicitly “reject[ed] the Government’s contention” that an individual “may be

disarmed simply because he is not ‘responsible.’” Rahimi, 602 U.S. at 701. It explained

that “responsible” was “a vague term,” and that “[i]t is unclear what such a rule would

29

entail.” Id. The Government admitted that “irresponsible” was essentially another

way to say “dangerous.” Tr. Of Oral Arg. 10-12, United States v. Rahimi, No. 22-915

(U.S. Nov. 7, 2023). And as previously explained, “dangerousness” was only relevant

to temporary disarmament when considering a judicial determination of current

dangerousness in the context of § 922(g)(8). See Rahimi, 602 U.S. at 754 (Thomas, J.,

dissenting) (explaining that historical context compels the conclusion that the Second

Amendment was not historically understood to allow an official to disarm anyone he

deemed “dangerous”); id. at 756-57 (explaining why “dangerous” person laws do not

offer support to the Government’s arguments).

B.

There is no historical tradition justifying a categorical possession ban

for those who have completed their sentence and have not been shown

to be presently dangerous

The “central considerations” when comparing modern and historical

regulations must be whether the regulations “impose a comparable burden” that is

“comparably justified.” Bruen, 597 U.S. at 29. The narrow ruling in Rahimi allowing

for temporary dispossession after a judicial determination that an individual is

presently dangerous was justified by a historical tradition of surety laws and affray

laws. But those laws imposed a materially different burden. After providing sureties,

a person retained possession of all his firearms. He could purchase additional

firearms, and he could carry firearms in public and in private. Rahimi, 602 U.S. at

764 (Thomas, J., dissenting) (citing 4 Blackstone 250). While surety laws preserved

the Second Amendment right, § 922(g)(1) entirely and permanently strips an

individual of that right. See Bruen, 597 U.S. at 59 (recognizing that surety laws

30

impose a lesser relative burden on the Second Amendment right). “At base, it is

difficult to imagine how surety laws can be considered relevantly similar to a

complete ban on firearm ownership, possession, and use.” Rahimi, 602 U.S. at 766

(Thomas, J, dissenting).

The affray laws also fail to justify LeBlanc’s lifetime disarmament based on

decades old convictions. The affray laws prohibited the carry of certain weapons in a

particular manner and in particular places. This Court has explained that going

armed laws did not prohibit carrying firearms at home or even public carry generally.

See Bruen, 597 U.S. at 47-50. Instead, they “prohibit[ed] bearing arms in a way that

spreads ‘fear’ or ‘terror’ among the people.” Id. at 50. Section 922(g)(1) bans all Second

Amendment-protected activity. As this Court has already concluded in Bruen that

affray laws do not impose a burden “analogous to the burden created by” an effective

ban on public carry, a total and complete ban cannot have an analogous burden

either. Id. Rahimi cannot support the permanent dispossession in status offenses like

§ 922(g)(1) that say nothing statutorily about being a present or current threat.

The Fifth Circuit’s final justification for Leblanc’s permanent disarmament

was its finding that his crimes were punished by death at the Founding. As members

of the Third Circuit have noted, capital punishment is “an imperfect analogue, as §

922(g)(1) is not a punishment but rather a disability imposed because of a prior

conviction.” Range v. Att’y Gen. United States, 124 F.4th 218, 287 n.9 (3d Cir. 2024)

(en banc) (Roth, J., concurring). Treating § 922(g)(1) as a punishment, rather than a

disability, would raise serious constitutional questions when an individual was

31

convicted only in state court. Id. And Rahimi did not authorize punishment by death

as a lesser punishment to disarmament generally. Instead, it authorized temporary

disarmament as a sufficient analogue to historical temporary imprisonment only to

“respond to the use of guns to threaten the physical safety of others.” See Rahimi,

602 U.S. at 699-700.

The ban LeBlanc faces under § 922(g)(1) is both permanent and premised upon

allegations of his dangerousness decades ago. There was no judicial determination

that LeBlanc was presently dangerous. In fact, the record indicates the opposite. The

district court reiterated that “there is no evidence that LeBlanc was using his firearm

in an unlawful way at the time of his alleged offense—before, during, or after the

gun’s discovery. Rather, LeBlanc’s unlawful ‘conduct’ was limited to merely having

possessed the gun, due to his prior felony convictions.” ROA.112. The district court

ruled that there was no evidence that or even argument below that LeBlanc’s prior

felony convictions make him a specific threat to ‘the public peace’ by predisposing him

to ‘violence.’” ROA.126. A permanent ban on LeBlanc’s possession of a firearm based

on years ago conduct for which he completed his sentence of imprisonment does not

“fit neatly” within the historical tradition demonstrated by the Government.

Moreover, the restoration of LeBlanc’s right to possess a firearm after

completing his sentence is supported by our general understanding that individuals

possess limited civil rights while serving a sentence, but that those rights may be

restored after they have completed it. See Williams, 113 F.4th at 658 (“Felons, after

all, don’t lose other rights guaranteed in the Bill of Rights even though an offender

32

who committed the same act in 1790 would have faced capital punishment.”); Kanter

v. Barr, 919 F.3d 437, 461 (7th Cir. 2019) (Barrett, J., dissenting) (describing the

general pitfalls of analogies to capital punishment, and noting that felons serving a

term of years had their rights “suspended but not destroyed”).

III.

The question whether Section 922(g)(1) violates the Second Amendment has

divided the courts of appeals and its resolution is of great importance

Since Bruen, the courts of appeals have reached different opinions about

whether Section 922(g)(1) is constitutional under the Second Amendment. The

Eighth and Ninth Circuits have concluded that the statute does not violate the

Second Amendment and have foreclosed future as-applied challenges. The Fifth

Circuit has also rejected facial Second Amendment challenges but has adopted a case

by case approach to as-applied challenges looking only at the disqualifying felony

conviction. The Sixth Circuit in contrast has adopted a dangerousness test for asapplied challenges. Meanwhile, the Third Circuit has found Section 922(g)(1)

unconstitutional as applied to specific defendants. These differing opinions have

generated opposite outcomes, with Second Amendment claims entirely foreclosed in

certain jurisdictions and not in others.

The Sixth Circuit in United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

held that Section 922(g)(1) is constitutional both on its face and as applied to

dangerous individuals. After conducting an extensive historical analysis, the court

concluded that governments have traditionally had authority to disarm groups

deemed dangerous, provided that individuals within those groups have an

opportunity to demonstrate they do not pose a danger. Applying this framework, the

33

court found that Section 922(g)(1) is constitutional as applied to the defendant

Williams, who had prior convictions for aggravated robbery, attempted murder, and

unlawfully possessing a firearm as a felon. Notably, the court held that when

evaluating as-applied challenges to Section 922(g)(1), courts should consider a

defendant’s entire criminal record, not just the specific predicate felony, and assess

whether their offenses fall into historically recognized categories of dangerous crimes

like violent felonies or offenses that inherently pose a significant threat of danger.

While the court left open whether non-violent felonies like fraud could justify

disarmament, it concluded that Williams’ violent criminal history clearly

demonstrated he was dangerous and therefore could be constitutionally prohibited

from possessing firearms under Section 922(g)(1). Id. at 645-63.

The Eighth Circuit analyzed the constitutionality of Section 922(g)(1) in

United States v. Jackson, 110 F.4th 1120, 1121 (8th Cir. 2024). There, it held that

Section 922(g)(1) is constitutional as applied to the defendant Jackson, who had prior

drug trafficking convictions. The court reasoned that historically, legislatures had

broad authority to disqualify categories of persons from possessing firearms, either

because they deviated from legal norms or presented an unacceptable risk of

dangerousness. The court found that Congress acted within this historical tradition

in enacting the felon-in-possession ban, and rejected Jackson’s argument that the law

was unconstitutional as applied to his “non-violent” felony convictions, concluding

that individual determinations of dangerousness were not historically required to

justify such categorical prohibitions. Id. at 1125-29. Similarly, the en banc Ninth

34

Circuit recently held that Section 922(g)(1) is constitutional, even as applied to a nonviolent felons. United States v. Duarte, No. 22-50048, 137 F.4th 743 (9th Cir. May 9,

2025) (en banc).

The Fifth Circuit has rejected specific as applied challenges to Section 922(g)(1)

but has not foreclosed future such challenges. In United States v. Diaz, 116 F.4th

458, 465 (5th Cir. 2024), the Fifth Circuit parted ways with other Circuits, holding

that that Bruen abrogated its prior decisions upholding Section 922(g)(1) against

Second Amendment challenge. It held that Heller’s reference to “longstanding

prohibitions on the possession of firearms by felons” did not reflect “binding precedent

on the issue now before us,” ultimately concluding that felons were amongst “the

people” protected by the Second Amendment. Id. at 465-66 & n.2. However, it found

that Section 922(g)(1) was constitutional on its face and as applied to that particular

defendant. Id. at 472. It explained that Section 922(g)(1)’s application was consistent

with this Nation’s historical tradition of firearm regulation because “[a]t the time of

the Second Amendment’s ratification, those—like Diaz—guilty of certain crimes—

like theft—were punished permanently and severely,” that is, by death or estate

forfeiture, and “permanent disarmament was [also] a part of our country’s arsenal of

available punishments at that time.” Id. Nonetheless, the court expressly held that

“[o]ur opinion today does not foreclose future as-applied challenges by defendants

with different predicate convictions.” Id. at 470 n.4.

The en banc Third Circuit, in contrast, applied Bruen’s text-and-history test

and found Section 922(g)(1) unconstitutional as applied to a person whose prior

35

conviction for making false statements in relation to food stamps had exposed him to

more than a year in prison. Range v. Att'y Gen. United States, 124 F.4th 218 (3d Cir.

2024) (en banc). First, the court rejected the government’s contention that a person’s

past conviction for an offense punishable by over one year operates to remove him

from “the people” to whom the right to keep and bear arms is vested. Id. at 226-28.

Then, upon examination of the relevant historical evidence, the court held that the

government had failed in its attempt to demonstrate a broad tradition of American

laws imposing anything near a permanent ban on firearm possession on account of

past misdeeds. Id. at 228-32.

Thus, the circuit split regarding the constitutionality of Section 922(g)(1)

remains. Resolving the question presented is also important. Despite serious

concerns as to Section 922(g)(1)’s constitutionality, the statute continues to result in

the imprisonment of thousands of American citizens each year. See Petition for Writ

of Certiorari at 22–24, Garland v. Range, No. 23-374 (Oct. 5, 2023) (marshaling

statistics demonstrating that Section 922(g)(1) is the most frequently applied

provision of Section 922(g)). And, for fear of the same fate, countless more individuals

are deterred from engaging in conduct that would otherwise come within the Second

Amendment’s core. Only this Court can settle this monumental question upon its

inevitable return to the Court’s docket.

Finally, This Court has already granted certiorari in two relevant gun case this

term, the decisions of which might touch on issues raised in this petition:

United States v. Hemani, No. 24-1234 on the question of “whether 18 U.S.C. §

36

922(g)(3), the federal statute that prohibits the possession of firearms by a person

who ‘is an unlawful user of or addicted to any controlled substance,’ violates the

Second Amendment as applied to respondent.”

And Wolford v. Lopez, No. 24-1046 on the question of “whether the Ninth

Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may

presumptively prohibit the carry of handguns by licensed concealed carry permit

holders on private property open to the public unless the property owner affirmatively

gives express permission to the handgun carrier?”

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted this November 3, 2025,

REBECCA L. HUDSMITH

Federal Public Defender

BY:

s/ Dustin C. Talbot

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

37

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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