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
9
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.