Petition for Writ of Certiorari — Donald Irving Hill, Jr., Petitioner v. United States

No. ________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

DONALD IRVING HILL, JR.,

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

QUESTIONS 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.

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

who has been convicted of “a crime punishable by imprisonment for a term exceeding

one year” from possessing a firearm, violates the Second Amendment as applied to

individuals with convictions for nonviolent drug trafficking offenses?

1

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................................................................... 1

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

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

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

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

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

STATUTORY PROVISIONS INVOLVED .................................................................... 7

INTRODUCTION .......................................................................................................... 8

STATEMENT OF THE CASE....................................................................................... 9

REASONS FOR GRANTING THE WRIT ................................................................. 10

I.

II.

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................................................ 11

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 ...................... 13

analysis .............................................................................................. 11

1.

The text of the Second Amendment covers Hill's conduct, and

he is among "the people" the Amendment protects.................... 13

2.

There is no relevantly similar historical regulation that bans

firearm possession for life ........................................................... 15

Section 922(g)(1) is unconstitutional as-applied to individuals convicted

of nonviolent offenses ................................................................................ 22

2

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 ................................................................................................ 25

CONCLUSION ............................................................................................................ 30

APPENDIX INDEX

Fifth Circuit opinion, September 3, 2025 .........................................................App. 001

District court judgment, October 17, 2024 .......................................................App. 003

3

TABLE OF AUTHORITIES

CASES

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

........................................................................................................................... 19

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

Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017) ...................................................... 14

Folajtar v. Attorney General of the United States, 980 F.3d 897 (3d Cir. 2020) ...... 19

Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) ............................................................. 11

Jennings v. State, 5 Tex. Ct. App. 298 (1878) ............................................................ 21

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting) ................. 18-19

McDonald v. City of Chicago, 561 U.S. 742 (2010) ................................................ 11-12

Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

700 F.3d 185 (5th Cir. 2012) ........................................................................ 11-12

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)

........................................................................................................................... 28

Rehaif v. United States, 588 U.S. 225 (2019) ............................................................ 28

United States v. Chester, 628 F.3d 673 (5th Cir. 2010) ....................................... 12, 19

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) ............................................ 27-28

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

banc) .................................................................................................................. 27

United States v. Hill, No. 24-30677, 2025 WL 2529923 (5th Cir. Sept. 3, 2025)

(unpublished) .................................................................................................. 7, 9

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024) .................................... 26-27

United States v. Kimble, 142 F.4th 308 (5th Cir. 2025) ................................... 9, 22-23

4

United States v. Lara, 815 F.3d 605 (9th Cir. 2016) .................................................. 14

United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020) ..................................... 11-12

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

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).......................................... 14

United States v. Williams, 113 F.4th 637 (6th Cir. 2024).......................................... 26

STATUTES

U.S. Const. Amend. I ................................................................................................... 14

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

U.S. Const. Amend. IV................................................................................................. 14

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

18 U.S.C. § 922(g)(8) ......................................................................................... 15, 23-25

1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688) ................................... 19

Sec’y of the Commonwealth, Acts and Resolves of Massachusetts 1786–87 (1893) . 20

OTHER

Adam Winkler, Heller’s Catch-22, 56 U.C.L.A. L. REV. 1551 (2009) ......................... 17

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

POLICY 695 (2009) ............................................................................................. 18

Dru Stevenson, In Defense of Felon-in-Possession Laws, 43 CARDOZO L. REV.

1573, 1591 (2022) .............................................................................................. 29

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

Persons from Possessing Arms, 20 WYO. L. REV. 249 (2020) .................... 18, 20

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) ............................................................................ 19

5

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

Individual Right, 28 OP. O.L.C. 126 (2004) ..................................................... 21

6

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. Hill,

No. 24-30677, 2025 WL 2529923 (5th Cir. Sept. 3, 2025) (unpublished), and is set

forth at App. 001.

JURISDICTION

The judgment of the court of appeals was entered on September 3, 2025. The

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

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.

7

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.

Under current precedent, an individual with Hill's exact criminal history

would face different constitutional protections depending on where they live. In the

Third Circuit, such a person might successfully challenge their disarmament. In the

Sixth Circuit, they would have an opportunity for an individualized dangerousness

assessment. But in the Fifth Circuit, they are categorically and permanently

disarmed without regard to individual circumstances.

This geographic disparity undermines the fundamental principle that

constitutional rights should not depend on accidents of geography. Only this Court

can provide the nationwide clarity that this important constitutional question

8

demands.

STATEMENT OF THE CASE

Donald Hill, now 43, struggled with drug addiction and mental health issues

throughout his life. Between ages 17 and 20, he was convicted of several drug-related

felonies: distribution of cocaine, distribution of counterfeit controlled substances,

possession with intent to distribute oxycodone, and two convictions for attempted

distribution of cocaine. None of these convictions involved violence or firearms.

In 2022, Hill was found with a handgun at a casino in Louisiana. He was

subsequently charged with and convicted of being a felon in possession of a firearm

under § 922(g)(1).

Hill moved to dismiss the indictment, arguing that § 922(g)(1) violated the

Second Amendment both facially and as applied to him under New York State Rifle

& Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022). The district court denied the motion,

and Hill entered a conditional guilty plea preserving his right to appeal.

The Fifth Circuit affirmed Hill's conviction in a brief per curiam opinion.

United States v. Hill, No. 24-30677, 2025 WL 2529923 (5th Cir. Sept. 3, 2025)

(unpublished), and is set forth at App. 001. The court acknowledged that Hill's facial

challenge was foreclosed by circuit precedent, but disposed of his as-applied challenge

by citing to United States v. Kimble, 142 F.4th 308 (5th Cir. 2025), which had resolved

“the ‘novel question’ of ‘whether a predicate drug-trafficking felony . . . justifies

permanent disarmament under (g)(1) even after the defendant has served his full

sentence.’” App. 002. The court concluded that Hill's “predicate convictions for drug

9

trafficking convey that he belongs to a class of dangerous felons that our regulatory

tradition permits legislatures to disarm.” App. 002.

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 nonviolent 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—

unless that offense was drug trafficking.

10

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

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

11

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).

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.

12

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

otherwise.

1.

The text of the Second Amendment covers Hill’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

13

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 . . .

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

14

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, Hill 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

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

15

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.

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

16

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.”).

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

17

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

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

18

“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

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

19

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’

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

20

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

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

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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 Hill’s

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

II.

Section 922(g)(1) is unconstitutional as-applied to individuals convicted of

nonviolent offenses

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

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

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

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

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

Yet the Fifth Circuit has adopted a categorical dangerousness finding and

applied it to anyone who has ever been convicted of a nonviolent drug trafficking

felony. In United States v. Kimble, 142 F.4th 308 (5th Cir. 2025), the court held that

individuals with drug trafficking predicates categorically fall within a “class of

dangerous felons that our regulatory tradition permits legislatures to disarm,”

without requiring any individualized showing of current dangerousness or

22

consideration of rehabilitation. Id. at 318. Rather than engaging in any historical

analysis specific to Hill's nonviolent drug trafficking predicates, the Fifth Circuit

simply cited Kimble and concluded that all drug trafficking felons categorically

belong to a “class of dangerous felons” subject to permanent disarmament. App. 002.

But this 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.

23

The Court specifically distinguished the limitations of its holding, contrasting

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

24

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

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).

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.

25

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

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 nonviolent 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

26

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 “nonviolent” 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 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

27

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

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. After all, Ҥ 922(g) is no

minor provision.” Rehaif v. United States, 588 U.S. 225, 239 (2019) (Alito, J.,

dissenting). Out of about 64,000 cases reported to the Sentencing Commission in

Fiscal Year 2023, more than 7,100 involved convictions under § 922(g)(1). See U.S.

Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses, at 1 (June 2024).

Those convictions accounted for over 10 percent of all federal criminal cases. See id.

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The government itself has acknowledged “the special need for certainty about Section

922(g)(1) given the frequency with which the government brings criminal cases under

it.” Gov’t Supp. Br. at 10 n.5, Garland v. Range, No. 23-374 (U.S. June 24, 2024).

Even beyond new prosecutions, § 922(g)(1)’s reach is staggering. The statute

prohibits millions of Americans from exercising their right to keep and bear arms for

the rest of their lives. Recent estimates of the number of individuals with felony

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

in-Possession Laws, 43 CARDOZO L. REV. 1573, 1591 (2022) (citations omitted). And §

922(g)(1) is particularly troubling because most of the individuals it prohibits from

possessing firearms are peaceful, with convictions for only nonviolent offenses. Less

than 20% of state felony convictions and less than 5% of federal felony convictions are

for violent offenses. See Dep’t of Justice, Bureau of Justice Statistics, Sean

Rosenmerkel et al., Felony Sentences in State Courts, 2006—Statistical Tables, at 3

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

Motivans, Federal Justice Statistics, 2022, at 12 (Table 7) (Jan. 2024).

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

millions of nonviolent Americans it prohibits from exercising a fundamental

constitutional right, this Court should answer this important and recurring question

as soon as possible.

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CONCLUSION

The petition for a writ of certiorari should be granted. In the alternative, if the

Court grants certiorari in any of the pending cases presenting a facial or as-applied

challenge to § 922(g)(1), it should at least hold Hill’s petition pending that decision.

Respectfully submitted this December 1, 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

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