Petition for Writ of Certiorari — Devin Joe Smith, Petitioner v. United States
Supreme Court briefDec 15, 2025
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DEVIN JOE SMITH, PETITIONER,
V.
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
SHANE O’NEAL
O’NEAL LAW
101 E. Avenue B
Alpine, Texas 79830
shane@shaneoneallaw.com
(432) 538-7070
Counsel of Record
i
QUESTION PRESENTED
Whether 18 U.S.C. § 922(g)(1), the federal statute that prohibits
anyone who has been convicted of “a crime punishable by
imprisonment for a term exceeding one year” from possessing a
firearm, violates the Second Amendment either facially or as
applied to individuals with convictions for non-violent offenses.
ii
RELATED PROCEEDINGS
United States District Court for the Western District of Texas:
United States v. Devin Joe Smith,
No. 4:24-cr-27 (Apr. 15, 2024)
United States Court of Appeals for the Fifth Circuit:
United States v. Devin Joe Smith,
No. 24-50622 (Sept. 16, 2025)
iii
TABLE OF CONTENTS
Question presented ........................................................................... i
Related proceedings ......................................................................... ii
Table of authorities .......................................................................... v
Introduction ...................................................................................... 9
Opinion below ................................................................................... 4
Jurisdiction ....................................................................................... 4
Constitutional and statutory provisions involved .......................... 4
Statement ......................................................................................... 4
A. Legal background. ........................................................ 4
B. Proceedings below. ..................................................... 12
Reasons for granting the petition .................................................. 15
I.
The courts of appeals are deeply divided over the scope of
a fundamental constitutional right. ................................. 15
II. The decision below is wrong and conflicts with this
Court’s precedent. .............................................................. 20
A. Section 922(g)(1) is facially unconstitutional because
it imposes an unprecedented lifetime ban on firearm
possession. .................................................................. 21
B. Section 922(g)(1) is unconstitutional as applied to
individuals convicted of non-violent offenses. .......... 27
III. This is a critically important and recurring question. .... 31
IV. This case is an ideal vehicle for addressing this question.
............................................................................................ 32
Conclusion ...................................................................................... 33
iv
Appendix
Court of appeals opinion (Sept. 16, 2025) ..................................... 1a
v
TABLE OF AUTHORITIES
Cases
Barrett v. United States,
423 U.S. 212 (1976) ................................................................ 8, 27
Binderup v. Attorney General,
836 F.3d 336 (3d Cir. 2016) ........................................................ 10
Cases v. United States,
131 F.2d 916 (1st Cir. 1942)......................................................... 6
Cody v. United States,
460 F.2d 34 (8th Cir. 1972) .......................................................... 9
District of Columbia v. Heller,
554 U.S. 570 (2008) .......................................................... 9, 10, 20
Kanter v. Barr, 919 F.3d 437
(7th Cir. 2019) ............................................................ 4, 10, 25, 27
Lewis v. United States,
445 U.S. 55 (1980) .................................................................. 8, 21
Logan v. United States,
552 U.S. 23 (2007) ...................................................................... 26
NYSRPA v. Bruen,
597 U.S. 1 (2022) ............................ 1, 2, 11, 12, 20, 21, 22, 24, 30
People v. Camperlingo,
231 P. 601 (Cal. Ct. App. 1924).................................................... 6
Pitsilides v. Barr,
128 F.4th 203 (3d Cir. 2025) ...................................................... 19
Range v. Attorney General,
124 F.4th 218 (3d Cir. 2024) ..................................... 17, 18, 19, 30
Rehaif v. United States,
588 U.S. 225 (2019) .................................................................... 31
vi
Scarborough v. United States,
431 U.S. 563 (1977) ...................................................................... 7
Stevens v. United States,
440 F.2d 144 (6th Cir. 1971) .................................................... 8, 9
Tot v. United States,
319 U.S. 463 (1943) ...................................................................... 5
United States v. Bullock,
123 F.4th 183 (5th Cir. 2024) ..................................................... 28
United States v. Connelly,
117 F.4th 269 (5th Cir. 2024) ..................................................... 28
United States v. Diaz,
116 F.4th 458 (5th Cir. 2024), cert. denied,
145 S. Ct. 2822 (2025) .............................................. 14, 18, 23, 24
United States v. Duarte,
137 F.4th 743 (9th Cir. 2024) ..................................................... 16
United States v. Dubois,
139 F.4th 887 (11th Cir. 2025) ................................................... 16
United States v. Focia,
869 F.3d 1269 (11th Cir. 2017) ................................................... 10
United States v. Hunt,
123 F.4th 697, 702–04 (4th Cir. 2024), cert. denied,
145 S. Ct. 2756 (2025) ................................................................. 16
United States v. Isaac,
2024 WL 4835243 (5th Cir. Nov. 20, 2024) ................................ 28
United States v. Jackson,
110 F.4th 1120 (8th Cir. 2024), cert. denied, 145 S. Ct. 2708
(2025)........................................................................................... 16
United States v. Johnson,
497 F.2d 548 (4th Cir. 1974) ........................................................ 9
vii
United States v. Kimble,
142 F.4th 308 (5th Cir. 2025),
pet. for cert. pending, No. 25-5747 ............... 14, 18, 19, 25, 29, 33
United States v. Miller,
307 U.S. 174 (1939) .............................................................. 5, 6, 9
United States v. Moore,
666 F.3d 313 (4th Cir. 2012) ....................................................... 10
United States v. Rahimi,
602 U.S. 680 (2024)........... 1, 11, 12, 20, 22, 23, 24, 26, 27, 29, 30
United States v. Salerno,
481 U.S. 739 (1987) .................................................................... 26
United States v. Schnur,
132 F.4th 863 (5th Cir. 2025) ..................................................... 28
United States v. Tot,
131 F.2d 261 (3d Cir. 1942).......................................................... 6
United States v. Williams,
113 F.4th 637 (6th Cir. 2024) ....................... 17, 18, 19, 24, 25, 26
Vincent v. Bondi,
127 F.4th 1263 (10th Cir. 2025),
pet. for cert. pending, No. 24-1155 (U.S.).................................... 16
Zherka v. Bondi,
140 F.4th 68 (2d Cir. 2025), pet. for cert. pending, No. 25-269
(U.S.) ........................................................................................... 16
Constitutional Provisions
U.S. Const. amend. II....................................................................... 4
Statutes
18 U.S.C. § 922(g)(1) .................................................................. i, 1, 4
18 U.S.C. § 922(g)(8) ...................................................................... 24
viii
28 U.S.C. § 1254(1) ........................................................................... 4
An Act to Strengthen the Federal Firearms Act,
Pub. L. No. 87-342, 75 Stat. 757 (1961) ...................................... 8
Federal Firearms Act, 52 Stat. 1250 (1938)..................................... 5
Omnibus Crime Control and Safe Streets Act of 1968,
Pub. L. No. 90-351, 82 Stat. 197 .................................................. 8
Other Authorities
Adam Winkler, Heller’s Catch-22,
56 UCLA L. REV. 1551 (2009) ....................................................... 5
Dep’t of Justice, Bureau of Justice Statistics, Mark A.
Motivans, Federal Justice Statistics, 2022 (Jan. 2024) ............ 32
Dep’t of Justice, Bureau of Justice Statistics,
Sean Rosenmerkel et al., Felony Sentences in State Courts,
2006—Statistical Tables (rev. Nov. 2010) ................................. 32
Dru Stevenson, In Defense of Felon-in-Possession Laws,
43 CARDOZO L. REV. 1573 (2022) ............................................... 32
Federal Firearms Act: Hearings Before the Subcomm. to
Investigate Juvenile Delinq. of the Sen. Comm. on the
Judiciary, 89th Cong. 41 (1965) ................................................... 7
S. Rep. No. 90-1097 (1968),
reprinted in 1968 U.S.C.C.A.N. 2112 ........................................... 7
U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g)
Firearms Offenses (June 2024) .................................................. 31
Withdrawing the Attorney General’s Delegation of Authority,
90 Fed. Reg. 13,080 (Mar. 20, 2025) .......................................... 26
ix
DEVIN JOE SMITH, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner Devin Joe Smith respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Fifth Circuit.
INTRODUCTION
This Court’s decision in NYSRPA v. Bruen, 597 U.S. 1 (2022),
brought about a sea change in Second Amendment jurisprudence.
In Bruen’s wake, the courts of appeals considered constitutional
challenges to the federal felon-in-possession statute, 18 U.S.C.
§ 922(g)(1). They reached dramatically divergent results. And the
2
Court’s decision in United States v. Rahimi, 602 U.S. 680 (2024),
did little to quell the confusion. The courts of appeals continue to
be deeply divided after Rahimi. The Third, Fifth, and Sixth Circuits
each acknowledge that § 922(g)(1) is vulnerable to as-applied
challenges depending on the person’s predicate felony conviction.
By contrast, the Second, Fourth, Eighth, Ninth, Tenth, and
Eleventh Circuits have each upheld the statute in all of its
applications (although based on different rationales).
The Fifth Circuit’s decision below continues to deepen the
intractable conflict in the courts of appeals over the scope of a
fundamental right. And the Fifth Circuit’s decision is wrong.
Section 922(g)(1) is a mid-20th century innovation drafted when
Congress believed—incorrectly—that the Second Amendment does
not protect an individual right to bear arms. So Congress made no
effort to pass a law that was “consistent with the Nation’s historical
tradition of firearm regulation.” See Bruen, 597 U.S. at 24. Rather,
it passed a sweeping ban that is irreconcilable with our history and
tradition. Section 922(g)(1) is facially unconstitutional because its
lifetime prohibition on gun possession imposes a historically
unprecedented burden on the right to keep and bear arms. No
historical firearm law imposed permanent disarmament. And the
justification behind § 922(g)(1)—disarming a broad group of
3
potentially irresponsible individuals—also fails historical scrutiny.
At most, our history shows a tradition of disarming violent
individuals who threaten armed insurrection or pose a physical
threat to others. Smith falls within neither category. Although the
Fifth Circuit determined that Smith’s predicate convictions for drug
trafficking were “inherently dangerous,” the record lacks evidence
that his offenses involved guns or violence. And in Rahimi, this
Court rejected the sweeping theory that Congress can disarm
anyone it deems dangerous. So, at the very least, § 922(g)(1) is
unconstitutional as applied to non-violent individuals like Smith.
This question is critically important. Section 922(g)(1) is one of
the most commonly charged federal offenses. Uncertainty about
whether the statute is constitutional affects thousands of criminal
cases each year, and challenges to the statute are congesting the
lower
courts’
dockets.
Even
more
concerning,
§ 922(g)(1)
categorically and permanently prohibits millions of Americans—
the vast majority of whom have non-violent convictions—from
exercising their right to keep and bear arms.
This Court’s intervention is urgently needed to resolve the
scope of a fundamental constitutional right. This question will not
go away, and this is an ideal vehicle to resolve it. The Court should
grant certiorari.
4
OPINION BELOW
The Fifth Circuit’s opinion is reproduced at App. 1a–2a.
JURISDICTION
The Fifth Circuit entered its judgment on September 16, 2025.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Second Amendment provides: “A well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”
Section 922(g)(1) of Title 18 of the United States Code provides:
“It shall be unlawful for any person … who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year … to … possess in or affecting commerce, any
firearm or ammunition.”
STATEMENT
A.
Legal background.
1. “Founding-era legislatures did not strip felons of the right to
bear arms simply because of their status as felons.” Kanter v. Barr,
919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting). Indeed,
“[b]ans on ex-felons possessing firearms were first adopted in the
1920s and 1930s, almost a century and a half after the Founding.”
5
Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1563
(2009). In 1938, Congress criminalized firearm possession by
individuals convicted of certain crimes for the first time. See Federal
Firearms Act, ch. 850, § 2(f), 52 Stat. 1250, 1251 (1938). But that
statute was much narrower than the modern version. The Federal
Firearms Act only applied to someone “convicted of a crime of
violence,” id., which included “murder, manslaughter, rape,
mayhem, kidnaping, burglary, housebreaking,” and certain kinds of
aggravated assault, id. § 1(6). The Act prohibited an individual with
such a conviction from “receiv[ing]” a firearm, and it considered
possession to be “presumptive evidence” of receipt.1 Id. § 2(f).
Soon after Congress passed the Federal Firearms Act, this
Court decided a Second Amendment challenge to another federal
firearm law. In United States v. Miller, two defendants challenged
their indictment for transporting an unregistered short-barreled
shotgun in interstate commerce. 307 U.S. 174, 175 (1939). This
Court held that the Second Amendment did not protect the right
to possess a short-barreled shotgun because such a weapon had no
“reasonable relationship to the preservation or efficiency of a well
regulated militia.” Id. at 178. The Court explained that the Second
1 This possession-based presumption was short-lived. A few years
later, this Court invalidated the presumption on due process grounds. Tot
v. United States, 319 U.S. 463, 467 (1943).
6
Amendment was adopted “[w]ith obvious purpose to assure the
continuation and render possible the effectiveness of [militia]
forces” and “must be interpreted and applied with that end in
view.” Id.
Applying similar militia-focused reasoning, courts of appeals
rejected constitutional challenges to the Federal Firearm Act’s
provision prohibiting individuals convicted of violent crimes from
receiving firearms. The First Circuit held that the Second
Amendment did not protect someone who was not “a member of
any military organization” and who used a firearm “without any
thought or intention of contributing to the efficiency of the well
regulated militia.” Cases v. United States, 131 F.2d 916, 923 (1st
Cir. 1942). The Third Circuit concluded that the Second
Amendment “was not adopted with individual rights in mind,” so
it did not protect possession of a gun without “some reasonable
relationship to the preservation or efficiency of a well regulated
militia.” United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942). And
a California court of appeal upheld that state’s felon-in-possession
law, explaining that “the right to keep and bear arms is not a right
guaranteed … by the federal constitution.” People v. Camperlingo,
231 P. 601, 603 (Cal. Ct. App. 1924).
7
2. It was not until the 1960s that the federal felon-in-possession
statute took on its modern form. At the time, Congress shared a
widely
held—but
incorrect—understanding
of
the
Second
Amendment. In committee testimony, the Attorney General
assured Congress that “[w]ith respect to the second amendment, the
Supreme Court of the United States long ago made it clear that the
amendment did not guarantee to any individuals the right to bear
arms” and opined that “the right to bear arms protected by the
second amendment relates only to the maintenance of the militia.”
Federal Firearms Act: Hearings Before the Subcomm. to Investigate
Juvenile Delinq. of the Sen. Comm. on the Judiciary, 89th Cong. 41
(1965). And Congress dismissed constitutional concerns about
federal firearm regulations, explaining that the Second Amendment
posed “no obstacle” because federal regulations did not “hamper the
present-day militia.” S. Rep. No. 90-1097 (1968), reprinted in 1968
U.S.C.C.A.N. 2112, 2169. Congress relied on court decisions—
including Miller—which held that the Second Amendment “was not
adopted with the individual rights in mind.” Id.
Unconstrained by the Second Amendment, “Congress sought to
rule broadly,” employing an “expansive legislative approach” to
pass a “sweeping prophylaxis … against misuse of firearms.”
Scarborough v. United States, 431 U.S. 563, 572 (1977) (first
8
quote); Lewis v. United States, 445 U.S. 55, 61, 63 (1980) (second
and third quotes). In particular, Congress was concerned with
keeping firearms out of the hands of broad categories of
“potentially irresponsible persons, including convicted felons.”
Barrett v. United States, 423 U.S. 212, 220 (1976). So it enacted
two significant changes that brought about the modern felon-inpossession ban. First, Congress expanded the Federal Firearms
Act to prohibit individuals convicted of any crime “punishable by
imprisonment for a term exceeding one year”—not just violent
crimes—from receiving a firearm. See An Act to Strengthen the
Federal Firearms Act, Pub. L. No. 87-342, § 2, 75 Stat. 757, 757
(1961). Second, a few years later, Congress criminalized possession
of a firearm—not just receipt—by anyone with a felony conviction.
See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L.
No. 90-351, § 1202(a)(1), 82 Stat. 197, 236.
In the ensuing years, courts endorsed Congress’s incorrect
understanding of the Second Amendment and upheld the new,
sweeping felon-in-possession prohibition. For example, the Sixth
Circuit held that the Second Amendment did not limit Congress’s
“power to prohibit the possession of a firearm by a convicted felon.”
Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971). “Since
the Second Amendment right ‘to keep and bear Arms’ applies only
9
to the right of the State to maintain a militia and not to the
individual’s right to bear arms, there can be no serious claim to
any express constitutional right of an individual to possess a
firearm.” Id. (citing Miller, 307 U.S. at 178). Other courts of
appeals—relying on Miller—also rejected Second Amendment
challenges to the statute because it did not obstruct the militia.
See, e.g., United States v. Johnson, 497 F.2d 548, 550 (4th Cir.
1974); Cody v. United States, 460 F.2d 34, 36–37 (8th Cir. 1972).
3. Fast forward a few decades. In District of Columbia v. Heller,
this Court held for the first time that the Second Amendment
codifies an individual right to keep and bear arms—a right that is
not limited to militia service. 554 U.S. 570, 579–600 (2008). In
reaching this conclusion, the Court conducted a “textual analysis”
of
the
Second
Amendment’s
language
and
surveyed
the
Amendment’s “historical background.” Id. at 578, 592. The Court
had “no doubt, on the basis of both text and history, that the Second
Amendment conferred an individual right to keep and bear arms.”
Id. at 595. Relying on the historical understanding of the
Amendment, however, the Court recognized that “the right secured
by the Second Amendment is not unlimited.” Id. at 626. The Court
identified several “longstanding” and “presumptively lawful”
firearm regulations, such as prohibitions on felons possessing
10
firearms. Id. at 626–27 & n.27. But the Court cautioned that it was
not “undertak[ing] an exhaustive historical analysis … of the full
scope of the Second Amendment.” Id. at 626. And it did not cite any
historical examples of these “longstanding” laws, explaining that
there would be “time enough to expound upon the historical
justifications for the[se] exceptions … if and when those exceptions
come before us.” Id. at 635.
Following Heller, the courts of appeals coalesced around a twostep framework for analyzing Second Amendment challenges that
focused on the historical scope of the Second Amendment at step
one and applied means-ends scrutiny at step two. See, e.g., Kanter,
919 F.3d at 441–42; United States v. Focia, 869 F.3d 1269, 1285
(11th Cir. 2017). And this Court’s recognition that the Second
Amendment protects an individual right brought renewed
constitutional challenges to § 922(g)(1). But the courts of appeals
almost uniformly rejected Second Amendment challenges to the
statute, either applying means-ends scrutiny or relying on Heller’s
“presumptively lawful” language. See, e.g., United States v. Moore,
666 F.3d 313, 316–17 (4th Cir. 2012) (collecting cases); but see
Binderup v. Attorney General, 836 F.3d 336, 351–57 (3d Cir. 2016)
(en banc) (holding that § 922(g)(1) was unconstitutional as applied
11
to two individuals with underlying convictions that “were not
serious enough to strip them of their Second Amendment rights.”).
4. Then came Bruen. In Bruen, this Court held that the twostep framework adopted by the courts of appeals was “one step too
many.” 597 U.S. at 19. Instead, the Court explained that Heller
demanded a test “centered on constitutional text and history.” Id.
at 22. Under this test, “when the Second Amendment’s plain text
covers an individual’s conduct, the Constitution presumptively
protects that conduct.” Id. at 17. “The government must then
justify its regulation by demonstrating that it is consistent with
the Nation’s historical tradition of firearm regulation.” Id. at 24.
“Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s unqualified command.” Id.
(cleaned up).
Bruen—and the Court’s later decision in Rahimi—explain that
“the appropriate analysis involves considering whether the
challenged regulation is consistent with the principles that
underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. “A
court must ascertain whether the new law is ‘relevantly similar’ to
laws that our tradition is understood to permit, ‘apply[ing]
faithfully the balance struck by the founding generation to modern
circumstances.’” Id. (quoting Bruen, 597 U.S. at 29). The law need
12
not be a “historical twin,” but analogical reasoning is also not a
“regulatory blank check.” Bruen, 597 U.S. at 30. “How” and “why”
the regulations burden the right to bear arms are central to this
inquiry. Bruen, 597 U.S. at 29; Rahimi, 602 U.S. at 692. These
considerations ask whether the modern and historical regulations
impose a “comparable burden” (the how) and “whether that burden
is comparably justified” (the why). Bruen, 597 U.S. at 29. “Even
when a law regulates arms-bearing for a permissible reason, … it
may not be compatible with the right if it does so to an extent
beyond what was done at the founding.” Rahimi, 602 U.S. at 692.
B.
Proceedings below.
1. In 2024, law enforcement officers attempted to perform a
traffic stop on Smith who briefly evaded them prior to his arrest.
C.A. ROA 111. He was found to have been in possession of two
pistols. Id. at 111–12. He was also possessed a small bag of
marijuana and appeared to be under the influence of alcohol. Id.
at 112. Smith had one earlier conviction for a drug-trafficking
offense that was punishable by more than a year in prison. In 2015,
he was convicted in federal court of conspiracy to possess with
intent to distribute twenty-eight grams or more of cocaine base. Id.
at 115. In 2014, he had also been convicted in state court of
possession of marijuana and resisting arrest when an officer
13
smelled marijuana during a traffic stop and refused to exit the
vehicle before an officer forcibly removed him; the officers found a
marijuana cigarette, an open container of alcohol, and cocaine in
the vehicle. Id. at 114. There is no evidence that Smith had a
firearm during either offense.
2. An indictment charged Smith with being a felon in
possession of a firearm in violation of § 922(g)(1). C.A. ROA 65–66.
Smith moved to dismiss the indictment. Id. at 29–30. He argued
that § 922(g)(1) facially violates the Second Amendment under
Bruen’s text-and-history test. Id. at 140–59. In the alternative, he
argued that § 922(g)(1) is unconstitutional as applied to him
because his underlying convictions did not “indicate that he [was]
a violent or dangerous person.” Id. at 29.
The district court denied Smith’s motion to dismiss, relying on
its earlier decision in another case. C.A. ROA 33–34 (citing United
States v. Colette, 630 F. Supp. 3d 841 (W.D. Tex. Sept. 25, 2022) and
United States v. Charles, 633 F. Supp. 3d 874 (W.D. Tex. Oct. 3,
2022)). In Charles, the same court held that § 922(g)(1) was
constitutional both facially and as applied to the defendant there
because the historical inquiry mandated by Bruen supported
excluding certain groups, including felons, from “the people.” Id. at
879–88. Smith pleaded guilty to violating § 922(g)(1), C.A. ROA 50–
14
51, and the district court sentenced him to 71 months’
imprisonment, id. at 55.
3. Smith appealed, and the Fifth Circuit affirmed. App. 1a–2a.
The court rejected Smith’s facial challenge because it was
foreclosed by circuit precedent. Id. at 3a n.2 (citing United States
v. Diaz, 116 F.4th 458, 471–72 (5th Cir. 2024), cert. denied, 145 S.
Ct. 2822 (2025)). The court also rejected Smith’s as-applied
challenge as failing in light of its recent decision in United States
v. Kimble, 142 F.4th 308, 309, 317–18 (5th Cir. 2025). In Kimble,
the court agreed with the government’s argument that the
defendant’s drug-trafficking convictions show that “he is the sort
of dangerous individual that legislatures have long disarmed.” Id.
at 314. The court held that the “Second Amendment allows
Congress to disarm classes of people it reasonably deems
dangerous” and that this tradition “accords with (g)(1)’s rationale
for disarming Kimble.” Id. at 314–16. The court explained that “the
Legislative, Executive, and Judicial Branches agree that drug
trafficking is an inherently dangerous activity.” Id. at 317. Thus,
the court held that § 922(g)(1) is constitutional as applied to
defendants like Smith because his “predicate convictions for drug
trafficking convey that he belongs to a class of dangerous felons
15
that our regulatory tradition permits legislatures to disarm.” Id.
at 318.
REASONS FOR GRANTING THE PETITION
I.
The courts of appeals are deeply divided over the
scope of a fundamental constitutional right.
The courts of appeals are deeply divided over how to analyze
Second Amendment challenges to § 922(g)(1). Some circuits see no
need to conduct the text-and-history analysis required by Bruen,
relying instead on this Court’s dicta that felon-in-possession
prohibitions are presumptively lawful. Others apply Bruen’s textand-history framework but reach dramatically different results,
disagreeing about which historical traditions justify § 922(g)(1),
whether the statute is vulnerable to as-applied challenges, and (if
so) how to analyze those challenges.
1. Several circuits have found § 922(g)(1) constitutional with no
need for felony-by-felony litigation, but for drastically different
reasons.
a. The Fourth, Tenth, and Eleventh Circuits have upheld
§ 922(g)(1) in all of its applications without conducting Bruen’s textand-history test. These courts have all concluded that they
remained bound by their pre-Bruen precedent which, in turn,
foreclosed as-applied challenges to § 922(g)(1) based on Heller’s
16
statement that prohibitions on the possession of firearms by felons
are “presumptively lawful.” See United States v. Hunt, 123 F.4th
697, 702–04 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025);
Vincent v. Bondi, 127 F.4th 1263, 1265 (10th Cir. 2025), pet. for cert.
pending, No. 24-1155 (U.S.); United States v. Dubois, 139 F.4th 887,
893 (11th Cir. 2025).
b. The Second, Eighth, and Ninth Circuits—as well as the
Fourth Circuit as an alternative rationale—have upheld § 922(g)(1)
across the board based on a historical analysis. See Zherka v. Bondi,
140 F.4th 68, 78–79 (2d Cir. 2025), pet. for cert. pending, No. 25-269
(U.S.); United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir.
2024), cert. denied, 145 S. Ct. 2708 (2025); United States v. Duarte,
137 F.4th 743, 761–62 (9th Cir. 2024) (en banc); see also Hunt, 123
F.4th at 705–08. These courts relied on historical laws categorically
disarming groups who were “not law-abiding” or “presented an
unacceptable risk of danger if armed” to justify § 922(g)(1) in all of
its applications. See, e.g., Jackson, 110 F.4th at 1126–28.
2. By contrast, the Third and Sixth Circuits have each conducted
a historical analysis and concluded that § 922(g)(1) is vulnerable to
as-applied challenges.
a. The Third Circuit, sitting en banc, struck down § 922(g)(1) as
applied to an individual convicted of food stamp fraud who did not
17
“pose[ ] a physical danger to others.” Range v. Attorney General, 124
F.4th 218, 232 (3d Cir. 2024). In doing so, the court rejected the
government’s reliance on status-based restrictions, emphasizing
that founding-era laws disarmed distrusted groups—like loyalists,
Native Americans, religious minorities, and Black Americans—
based on fear of rebellion. Id. at 229–30. The court also rejected the
government’s reliance on capital punishment and forfeiture,
explaining that “the Founding-era practice of punishing some
nonviolent crimes with death does not suggest that the particular
(and distinct) punishment at issue here—de facto lifetime
disarmament for all felonies and felony-equivalent misdemeanors—
is rooted in our Nation’s history and tradition.” Id. at 230–31.
b. The Sixth Circuit allows as-applied challenges to § 922(g)(1)
by individuals who show that they are “not dangerous.” United
States v. Williams, 113 F.4th 637, 657, 663 (6th Cir. 2024). Although
the court found historical support for disarming “presumptively
dangerous” groups who posed a threat to public order—like
religious minorities, Native Americans, loyalists, and freedmen—it
explained that these laws all allowed individuals to show that they
posed no danger. Id. at 657. So the court held that an individual
must be given an opportunity to show that he is “not dangerous”
and “falls outside of § 922(g)(1)’s constitutionally permissible
18
scope.” Id. In conducting this inquiry, the court explained that
courts can “consider a defendant’s entire criminal record—not just
the specific felony underlying his § 922(g)(1) conviction.” Id. at 659–
60.
3. The Fifth Circuit’s decision below underscores the deep
divisions between the courts of appeals.
a. The Fifth Circuit splits with other courts of appeals on two
preliminary questions. Unlike the Fourth, Tenth, and Eleventh
Circuits—which have held that they remain bound by their preBruen precedent, see supra 15–16—the Fifth Circuit agrees with
the Third and Sixth Circuits that Bruen rendered its prior
precedent obsolete. Kimble, 142 F.4th at 311 n.4 (recognizing
split); Range, 124 F.4th at 225; Williams, 113 F.4th at 647–48.
And the Tenth and Eleventh Circuits have declined to conduct
any historical analysis based on Heller’s “presumptively lawful”
language. See supra 15–16. By contrast, the Fifth Circuit has
joined the Third and Sixth Circuits in refusing to treat that
language as controlling. Diaz, 116 F.4th at 466; Range, 124 F.4th
at 228–29; Williams, 113 F.4th at 648. Instead, these courts
acknowledge that Bruen requires a text-and-history analysis.
b. The Fifth Circuit’s historical analysis also diverges from
other circuits in several respects. The Second, Fourth, Eighth, and
19
Ninth Circuits have all held that history supports upholding
§ 922(g)(1) regardless of a defendant’s underlying conviction. See
supra 16. But the Fifth Circuit—like the Third and Sixth Circuits,
see supra 17–18—“permit[s] as-applied challenges” to the statute.
Kimble, 142 F. 4th at 311 (cleaned).
The Fifth Circuit’s as-applied analysis, however, conflicts with
how the Third and Sixth Circuits evaluate as-applied challenges.
First, the Fifth Circuit recognizes that individuals can be disarmed
if their predicates “were subject to the death penalty” at the
founding. Id. This conflicts with the Third Circuit’s rejection of
capital punishment as an analogue for the felon-in-possession
statute. Range, 124 F.4th at 230–31. Second, the Fifth Circuit
recognizes that “those who have been convicted of violent offenses”
can be disarmed under § 922(g)(1). Kimble, 142 F.4th at 312. But
its analysis differs from the Third and Sixth Circuits’ analysis.
Those
courts
require
an
individualized
assessment
of
dangerousness that considers a defendant’s entire criminal record,
not just the underlying felony. Williams, 113 F.4th at 663;
Pitsilides v. Barr, 128 F.4th 203, 211 (3d Cir. 2025). The Fifth
Circuit, however, has concluded that it is limited to analyzing the
felony predicates that triggered § 922(g)(1). Kimble, 142 F.4th at
316–17 (recognizing split).
20
*
*
*
The courts of appeals are fractured over how to conduct the
Second Amendment analysis, and the splits are entrenched and
deepening. This Court’s intervention is needed to resolve the scope
of the right to keep and bear arms.
II.
The decision below is wrong and conflicts with this
Court’s precedent.
The Fifth Circuit’s has correctly noted that, under the plain
text of the Second Amendment, “convicted felons are unequivocally
among ‘the people’ protected by the Second Amendment.” Kimble,
142 F.4th at 311 After all, this Court has explained that “the
people” “unambiguously refers to all members of the political
community,” so the right to keep and bear arms belongs to “all
Americans.” Heller, 554 U.S. at 580.
But the Fifth Circuit
misapplied Bruen’s historical analysis. Section 922(g)(1) does not
align with our Nation’s tradition of firearm regulation on either of
the two central considerations: how and why it burdens the right
to keep and bear arms. See Bruen, 597 U.S. at 29; Rahimi, 602 U.S.
at 692. The difference in how § 922(g)(1) burdens the right to bear
arms is fatal to the statute facially, and why it burdens the right
to bear arms dooms the statute as applied to non-violent offenders
like Smith.
21
A.
Section 922(g)(1) is facially unconstitutional
because it imposes an unprecedented lifetime
ban on firearm possession.
1. Section 922(g)(1) facially violates the Second Amendment
because it imposes a sweeping, historically unprecedented lifetime
ban that prevents millions of Americans from possessing firearms
for self-defense. The government has not cited a single historical
gun law that imposed a permanent prohibition on the right to keep
and bear arms—even for self-defense. In other words, no historical
regulation “impose[s] a comparable burden on the right of armed
self-defense.” See Bruen, 597 U.S. at 29.
That is hardly surprising. When Congress passed the modern
felon-in-possession statute—four decades before Heller and more
than a half-century before Bruen—it did not believe that the Second
Amendment protected an individual right to keep and bear arms.
See supra 7–8. So Congress did not try to pass a law that aligned
with the “Nation’s historical tradition of firearm regulation.” See
Bruen, 597 U.S. at 17. Instead—dismissing the Second Amendment
as “no obstacle,” see supra 7—it employed an “expansive legislative
approach” to pass a “sweeping prophylaxis … against misuse of
firearms.” Lewis, 445 U.S. at 61, 63. And that sweeping, permanent
prohibition on gun possession imposes a burden far broader than
any firearm regulation in our Nation’s history.
22
2. In other cases, the Fifth Circuit has recognized that
§ 922(g)(1)’s permanent disarmament requires a historical
analogue that also permanently prevented individuals from
possessing guns. In Diaz, the court noted that § 922(g)(1) imposes
“permanent disarmament” and held that on capital punishment
was a proper analogue because it is “obviously permanent.” 116
F.4th at 469. In the decision below, however, the court never cited
any historical firearm regulation that justified permanent
disarmament of individuals convicted of inherently dangerous
felonies. Under either standard, there is no tradition of permanent
disarmament justifying § 922(g)(1).
a. The Fifth Circuit’s acceptance of capital punishment as a
historical analogue justifying permanent disarmament, conflicts
with this Court’s precedent in three ways.
First, this Court requires the government to show that a
modern gun law aligns with our “historical tradition of firearm
regulation.” Bruen, 597 U.S. at 24 (emphasis added); Rahimi, 602
U.S. at 691 (same). In other words, the government’s historical
analogues must regulate firearms. In Rahimi, this Court relied
only on historical laws that “specifically addressed firearms
violence.” 602 U.S. at 694–95. So too in Bruen. 597 U.S. at 38–66.
Capital punishment, however, is not a firearm regulation. So they
23
cannot justify § 922(g)(1). The Fifth Circuit has reached a contrary
conclusion by misreading Rahimi.
The Fifth Circuit asserted that Rahimi “consider[ed] several
historical laws that were not explicitly related to guns.” Diaz, 116
F.4th at 468. But Rahimi says otherwise. In Rahimi, this Court
relied on two historical legal regimes—surety laws and going
armed laws—that both “specifically addressed firearms violence.”
602 U.S. at 694–95. To be sure, surety laws were not “passed solely
for the purpose of regulating firearm possession or use.” Diaz, 116
F.4th at 468. But this Court emphasized that, “[i]mportantly for
this case, the surety laws also targeted the misuse of firearms.”
Rahimi, 602 U.S. at 696 (emphasis added). In other words,
historical laws that did not target the misuse of firearms—like
capital punishment and estate forfeiture—are not proper
analogues.
The Fifth Circuit also noted that this Court accepted a greaterincludes-the-lesser argument in Rahimi. Diaz, 116 F.4th at 469.
That is true as far as it goes. Rahimi held that “if imprisonment
was permissible to respond to the use of guns to threaten the
physical safety of others, then the lesser restriction of temporary
disarmament … is also permissible.” 602 U.S. at 699. But it does
not follow, as the Fifth Circuit concluded, that “if capital
24
punishment was permissible to respond to theft, then the lesser
restriction of permanent disarmament that § 922(g)(1) imposes is
also permissible.” Diaz, 116 F.4th at 469. This Court explained
that the purpose of imprisonment under the going armed laws was
“to respond to the use of guns to threaten the physical safety of
others.” Rahimi, 602 U.S. at 699. So both the greater historical
punishment (imprisonment under the going armed laws) and the
lesser
modern
restriction
(disarmament
under
18
U.S.C.
§ 922(g)(8)) had the same purpose—curbing gun violence. Not so
here. Again, capital punishment did not target gun violence.
Second, this Court has also emphasized that the right to bear
arms “is not a second-class right, subject to an entirely different
body of rules than the other Bill of Rights guarantees.” Bruen, 597
U.S. at 70 (cleaned up). But the Fifth Circuit’s reasoning—that
because
capital punishment is an
“obviously
permanent”
deprivation of an individual’s right to bear arms, the lesser
restriction
of
permanent
disarmament
is
permissible
for
individuals who are not executed, Diaz, 116 F.4th at 469—conflicts
with how the Constitution treats other fundamental rights.
“Felons, after all, don’t lose other rights guaranteed in the Bill
of Rights even though an offender who committed the same act in
1790 would have faced capital punishment.” Williams, 113 F.4th at
25
658. “No one suggests that such an individual has no right to a jury
trial or be free from unreasonable searches and seizures.” Id. And
“we wouldn’t say that the state can deprive felons of the right to free
speech because felons lost that right via execution at the time of the
founding.” Kanter, 919 F.3d at 461–62 (Barrett, J., dissenting). “The
obvious point that the dead enjoy no rights does not tell us what the
founding-era generation would have understood about the rights of
felons who lived, discharged their sentences, and returned to
society.” Id. at 462. Rather, “history confirms that the basis for the
permanent and pervasive loss of all rights cannot be tied generally
to one’s status as a convicted felon or to the uniform severity of
punishment that befell the class.” Id. at 461.
b. The Fifth Circuit has not articulated any tradition of
permanently disarming individuals “whose past criminal conduct
evinces a special danger of misusing firearms.” See Kimble, 142
F.4th at 314. Indeed, the court’s analysis never cites a single
permanent or lifetime ban on firearm use. Id. at 314–18. The court
noted that “[g]overnments in England and colonial America long
disarmed groups they deemed to be dangerous.” Id. at 315 (quoting
Williams, 113 F.4th at 657). Even assuming this “dangerousness”
theory could justify § 922(g)(1) (but see infra 29–30), the court
never grappled with the fact that these historical categorical
26
deprivations were not permanent. Rather, they gave individuals “a
reasonable opportunity to prove that they don’t fit the class-wide
generalization.” Williams, 113 F.4th at 661. Section 922(g)(1), by
contrast, imposes a categorical restriction with no opportunity to
regain the right to keep and bear arms.2
3. A law is not compatible with the Second Amendment if it
regulates the right to bear arms “to an extent beyond what was
done at the founding.” Rahimi, 602 U.S. at 692. Section 922(g)(1)
does just that. It imposes a lifetime ban on firearm possession that
would have been unimaginable to the Founders. Thus, § 922(g)(1)
facially violates the Second Amendment because there are “no set
of circumstances” under which it is valid. See Rahimi, 602 U.S. at
693 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
The government has recently reestablished an administrative
process for restoring firearm rights authorized in 18 U.S.C. § 925(c). See
Withdrawing the Attorney General’s Delegation of Authority, 90 Fed. Reg.
13,080 (Mar. 20, 2025) (explaining that the Department of Justice
“anticipates future actions, including rulemaking consistent with
applicable law, to give full effect to 18 U.S.C. 925(c)”). But § 925(c) is
irrelevant here for a simple reason: it was unavailable to Smith.
Beginning in 1992—decades before Smith’s underlying convictions—and
continuing until well after Smith’s conviction in this case, § 925(c) was
“inoperative” because Congress prohibited using appropriated funds to
investigate or act on relief applications. Logan v. United States, 552 U.S.
23, 28 n.1 (2007). And even moving forward, § 925(c) will not remedy any
constitutional concerns because the relief provision has features that this
Court has held are inconsistent with the Second Amendment. See Diaz
Reply Br. 11–13, United States v. Diaz, No. 24-6625 (U.S. May 30, 2025).
2
27
B.
Section 922(g)(1) is unconstitutional as applied
to individuals convicted of non-violent offenses.
1. Even if § 922(g)(1) is facially constitutional, the statute
violates the Second Amendment as applied to individuals with
non-violent convictions. The government has not cited a tradition
of disarming non-violent individuals. The government’s historical
evidence shows—at most—a tradition of disarming violent
individuals who threaten armed insurrection or threaten the
physical safety of others. See Kanter, 919 F.3d at 454 (Barrett, J.,
dissenting) (explaining that historical evidence shows “that the
legislature may disarm those who have demonstrated a proclivity
for violence or whose possession of guns would otherwise threaten
the public safety”).
Again, Congress was not concerned with the Second
Amendment—much
less
the
country’s
history
of
firearm
regulation—when it expanded federal law to prohibit even nonviolent felons from possessing firearms in the 1960s. See supra 7–
8. Instead, Congress was concerned with “keeping firearms out of
the hands of categories of potentially irresponsible persons,
including convicted felons.” Barrett, 423 U.S. at 220. Of course, this
Court recently rejected the government’s argument that someone
“may be disarmed simply because he is not ‘responsible.’” Rahimi,
602 U.S. at 701. But it is no surprise that Congress’s sweeping law
28
prohibiting anyone even potentially irresponsible from possessing
a firearm exceeds the limits of the Second Amendment—limits
that this Court only clarified decades later.
2. Before this case, the Fifth Circuit held that history supported
disarming individuals convicted of “violent crimes.” See, e.g., United
States v. Schnur, 132 F.4th 863, 867–70 (5th Cir. 2025) (aggravated
battery causing great bodily injury); United States v. Bullock, 123
F.4th 183, 185 (5th Cir. 2024) (manslaughter and aggravated
assault); United States v. Isaac, 2024 WL 4835243, at *1 (5th Cir.
Nov. 20, 2024) (aggravated assault with a deadly weapon). At least
as to “why,” disarming individuals convicted of violent conduct is
justified by the going-armed laws discussed at length in Rahimi,
which “mitigate[d] demonstrated threats of physical violence.”
Schnur, 132 F.4th at 870 (quoting Rahimi, 602 U.S. at 697). The
Fifth Circuit also considered whether history supported a tradition
of disarming “dangerous” individuals. It found that there was such
a tradition but that it was limited to disarming “political traitors”
and “potential insurrectionists.” United States v. Connelly, 117
F.4th 269, 278 (5th Cir. 2024).
In the decision below, however, the Fifth Circuit held that
§ 922(g)(1) was constitutional as applied to Smith even though
there is no evidence that he poses a demonstrated threat of
29
physical violence, was convicted of an offense that involved
violence, or is a political traitor or potential insurrectionist.
Rather, the court held that he could be disarmed simply because
“Congress today regards felon drug traffickers as too dangerous to
trust with weapons” and drug trafficking is “an inherently
dangerous activity.” Kimble, 142 F.4th at 316–17. But this Court
has already rejected this sweeping “dangerousness” theory.
In Rahimi, the government argued that Congress may disarm
individuals who are not “responsible.” Gov’t Br. 27–28, United
States v. Rahimi, No. 22-915 (U.S. Aug. 14, 2023). And, according to
the government, “a person is not ‘responsible’ if his possession of a
firearm would pose a danger of harm to himself or others.” Id.; see
id. at 29 (“[A] person is not responsible and thus may be disarmed
if his possession of a firearm would endanger himself or others.”).
At oral argument, the government confirmed that it was using
“‘responsible’ as a placeholder for dangerous.” Tr. of Oral Arg. 10–
12, United States v. Rahimi, No. 22-915 (U.S. Nov. 7, 2023).
This Court unanimously rejected that theory. Rahimi, 602 U.S.
at 701–02; id. at 772–73 (Thomas, J., dissenting) (“The Government
… argues that the Second Amendment allows Congress to disarm
anyone who is not ‘responsible’ …. Not a single Member of the Court
adopts the Government’s theory.”). The Court stated that
30
“responsible” is a “vague term” and it is “unclear what such a rule
would entail.” Id. at 701 (majority opinion). And by deeming the
term “responsible” vague, the Court necessarily rejected the
government’s proposed definition: that irresponsible means
dangerous. See, e.g., Tr. of Oral Arg. 10–12, Rahimi, supra (No. 22915). So Rahimi is directly at odds with the Fifth Circuit’s
determination that Congress can disarm anyone it deems
dangerous.
Indeed, the Fifth Circuit’s standard—whether “Congress today
regards [a group] as too dangerous to trust with weapons,” Kimble,
142 F.4th at 316—would simply be a return to the kind of “judicial
deference to legislative interest balancing” that this Court rejected
in Bruen. 597 U.S. at 26. As the Third Circuit has recognized, a
broad “dangerousness” standard is “far too broad” and “operates at
such a high level of generality that it waters down the right.” Range,
124 F.4th at 230 (quoting Bruen, 597 U.S. at 31 (first quote);
Rahimi, 602 U.S. at 740 (Barrett, J., concurring) (second quote)).
3. In short, “our Nation’s tradition of firearm regulation
distinguishes citizens who have been found to pose a credible
threat to the physical safety of others from those who have not.”
Rahimi, 602 U.S. at 700. Smith’s prior drug-trafficking convictions
do not establish that he poses a credible threat to the physical
31
safety of others. Thus, at the very least, § 922(g)(1) violates the
Second Amendment as applied to non-violent offenders like Smith.
III.
This is a critically important and recurring question.
The Court should grant the petition because the question is
critically important and recurring. After all, 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% of all federal
criminal cases. See id. The government itself has acknowledged
“the special need for certainty about Section 922(g)(1) given the
frequency with which the government brings criminal cases under
it.” Gov’t Supp. Br. at 10 n.5, Garland v. Range, No. 23-374 (U.S.
June 24, 2024).
Even
beyond
new
prosecutions,
§ 922(g)(1)’s
reach
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,
32
1591 (2022) (citations omitted). And § 922(g)(1) is particularly
troubling because most of the individuals it prohibits from
possessing firearms are peaceful, with convictions for only nonviolent offenses. Less than 20% of state felony convictions and less
than 5% of federal felony convictions are for violent offenses. See
Dep’t of Justice, Bureau of Justice Statistics, Sean Rosenmerkel et
al., Felony Sentences in State Courts, 2006—Statistical Tables, at
3 (Table 1.1) (rev. Nov. 2010); Dep’t of Justice, Bureau of Justice
Statistics, Mark A. Motivans, Federal Justice Statistics, 2022, at
12 (Table 7) (Jan. 2024).
Given § 922(g)(1)’s widespread impact both on new prosecutions
and on the millions of non-violent Americans it prohibits from
exercising a fundamental constitutional right, this Court should
answer this important and recurring question as soon as possible.
IV.
This case is an ideal vehicle for addressing this
question.
1. This case presents an ideal vehicle for addressing whether
§ 922(g)(1) violates the Second Amendment. The case cleanly
presents a purely legal issue. There are no jurisdictional problems,
factual disputes, or preservation issues. Smith thoroughly briefed
his facial and as-applied Second Amendment challenges in both the
district court and the court of appeals. The district court squarely
33
addressed both challenges, C.A. ROA 33–34, as did the Fifth
Circuit, App. 1a–2a.
2. In the alternative, there are several pending petitions for writ
of certiorari that, if granted, would bear on the question presented
here. See, e.g., Kimble v. United States, No. 25-5747 (U.S.); Vincent
v. Bondi, No. 24-1155 (U.S.); Zherka v. Bondi, No. 25-269 (U.S.). If
the Court grants certiorari in any of these pending cases presenting
a facial or as-applied challenge to § 922(g)(1), it should at least hold
Smith’s petition pending that decision.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
SHANE O’NEAL
Counsel for Petitioner
December 15, 2025
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.