Petition for Writ of Certiorari — Frankie Acosta, Petitioner v. United States

Supreme Court briefDec 22, 2025

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No. ___________________

FRANKIE ACOSTA, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

MAUREEN SCOTT FRANCO

Federal Public Defender

BRADFORD W. BOGAN

Assistant Federal Public Defender

Counsel of Record

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

WESTERN DISTRICT OF TEXAS

300 Convent Street, Suite 2300

San Antonio, Texas 78205

brad_bogan@fd.org

(210) 472-6700

Counsel for Petitioner

Question Presented

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

anyone who has been convicted of “a crime punishable by

imprisonment for a term exceeding one year” from possessing a

firearm, violates the Second Amendment either facially or as

applied to individuals with prior convictions for offenses that did

not result in disarmament in the Founding era.

Related Proceedings

United States District Court for the Western District of Texas:

United States v. Acosta, No. 7:24-cr-160-DC-1 (Jan. 31, 2025,

amended Feb. 4, 2025) (criminal judgment)

United States Court of Appeals for the Fifth Circuit:

United States v. Acosta, No. 25-50083 (Sept. 25, 2025) (per

curiam) (unpublished)

iii

Table of Contents

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

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

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

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

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

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

Jurisdiction........................................................................................4

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

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

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

B. Proceedings below. ..................................................... 10

Reasons for Granting the Petition ................................................ 18

The courts of appeals are deeply divided over the scope of

a fundamental constitutional right. ................................. 18

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

precedent. ........................................................................... 26

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

imposes an unprecedented lifetime ban on firearm

possession. .................................................................. 27

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

individuals based on their prior felony convictions for

offenses that did not result in disarmament in the

Founding era. ............................................................. 33

III. This is a critically important and recurring question. .... 36

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

............................................................................................ 38

Conclusion ...................................................................................... 38

Appendix

United States v. Acosta,

No. 25-50083 (5th Cir. Sept. 25, 2025) .................................... 1a–2a

Table of Authorities

Cases

Barrett v. United States,

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

Binderup v. Attorney General,

836 F.3d 336 (3d Cir. 2016) (en banc) .......................................... 9

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................................ 7–8, 27

Kanter v. Barr, 919 F.3d 437

(7th Cir. 2019).............................................................. 5, 8, 31–33

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) ...................................................... 14

Lewis v. United States,

445 U.S. 55 (1980) .................................................................. 7, 28

Lopez v. United States,

514 U.S. 549 (1995) .................................................................... 12

NYSRPA v. Bruen,

597 U.S. 1 (2022) ............ 1, 3, 9–10, 12–13, 22, 27–29, 31–32, 34

Range v. Attorney General,

124 F.4th 218 (3d Cir. 2024) (en banc) ................................ 19–20

Rehaif v. United States,

588 U.S. 225 (2019) .................................................................... 36

Scarborough v. United States,

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

TikTok v. Garland,

145 S. Ct. 57 (2025) .................................................................... 35

United States v. Bullock,

123 F.4th 183 (5th Cir. 2024) ............................. 13–14, 17, 26, 28

United States v. Charles,

633 F. Supp. 3d 874 (W.D. Tex. 2022) ........................................ 12

United States v. Collette,

630 F. Supp. 3d 841 (W.D. Tex. 2022) ........................................ 12

United States v. Contreras,

125 F.4th 725 (5th Cir. 2025) ..................................................... 26

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ....................... 12–13, 15, 17, 25–33

United States v. Duarte,

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

reh’g en banc granted, opinion vacated,

108 F.4th 786 (9th Cir. 2024) ..................................................... 23

United States v. Duarte,

137 F.4th 743 (9th Cir. 2025) (en banc) ..................................... 23

United States v. Dubois,

139 F.4th 887 (11th Cir. 2025) ................................................... 24

United States v. Eichman,

496 U.S. 310 (1990) .................................................................... 35

United States v. Focia,

869 F.3d 1269 (11th Cir. 2017)..................................................... 8

United States v. Gay,

98 F.4th 843 (7th Cir. 2024) ....................................................... 22

United States v. Giglio,

126 F.4th 1039 (5th Cir. 2025) ................................. 14–15, 17, 26

United States v. Goins,

118 F.4th 794 (6th Cir. 2024) ..................................................... 21

United States v. Grace,

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

vii

United States v. Hunt,

123 F.4th 697 (4th Cir. 2024) ............................................... 20–21

United States v. Jackson,

110 F.4th 1120 (8th Cir. 2024) ................................................... 22

United States v. Miller,

307 U.S. 174 (1939) ...................................................................... 6

United States v. Moore,

111 F.4th 266 (3d Cir. 2024) ....................................................... 15

United States v. Moore,

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

United States v. Rahimi,

602 U.S. 680 (2024) ...................... 2, 10, 12, 14–15, 27, 29–32, 34

United States v. Salerno,

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

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) ............................................... 21, 31

Vincent v. Bondi,

127 F.4th 1263 (10th Cir. 2025) ................................................. 24

Williams v. Illinois,

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

Zherka v. Bondi,

140 F.4th 68 (2d Cir. 2025) .................................................. 18–19

Constitutional Provisions

Commerce Clause,

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

Second Amendment,

U.S. Const. amend. II......................................................... 5–7, 33

viii

Statutes

18 U.S.C. § 922(g)(1) .... i, 1–5, 8–9, 11–13, 15, 18–25, 27–30, 32–38

18 U.S.C. § 922(g)(8) ...................................................................... 31

18 U.S.C. § 924(a)(8) .......................................................................11

28 U.S.C. § 1254(1) .......................................................................... 4

Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65 ................... 29

An Act to Strengthen the Federal Firearms Act,

Pub. L. No. 87-342, 75 Stat. 757 (1961) ...................................... 7

Crimes Act,

1 Cong. Ch. 9, 1 Stat. 112 (1790) ............................................... 16

Federal Firearms Act,

52 Stat. 1250 (1938) ................................................................. 5–6

Omnibus Crime Control and Safe Streets Act of 1968,

Pub. L. No. 90-351, 82 Stat. 197.................................................. 7

Other Authorities

Dep’t of Justice, Bureau of Justice Statistics,

Mark A. Motivans,

Federal Justice Statistics, 2022 (Jan. 2024) ............................. 37

Dep’t of Justice, Bureau of Justice Statistics,

Sean Rosenmerkel et al.,

Felony Sentences in State Courts,

2006—Statistical Tables (rev. Nov. 2010) ................................. 37

Federal Firearms Act: Hearings Before the Subcomm. to

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

Judiciary, 89th Cong. 41 (1965) .................................................. 6

Hartung, Frank E.,

Trends in the Use of Capital Punishment,

284 Annals of Am. Academy of Pol. & Soc. Sci. 8 (1952) .......... 16

Mackey, Phillip English,

Voices Against Death: American Opposition to Capital

Punishment 1787–1975 (Burt Franklin & Co., Inc., 1976) ...... 16

Preyer, Kathryn,

Crime and Reform in Post-Revolutionary Virginia,

1 LAW & HIST. REV. 53, 73 (1983) ............................................... 29

Randa, Laura E.,

Society’s Final Solution: A History and Discussion

of the Death Penalty (Univ. Press Am. Inc., 1997) .................... 16

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

reprinted in 1968 U.S.C.C.A.N. 2112, 2169 ................................ 6

Stevenson, Dru,

In Defense of Felon-in-Possession Laws,

43 CARDOZO L. REV. 1573 (2022) ............................................... 37

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

Offenses (June 2024) .................................................................. 37

Winkler, Adam,

Heller’s Catch-22,

56 UCLA L. REV. 1551 (2009) ...................................................... 5

FRANKIE ACOSTA, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Frankie Acosta respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the

Fifth Circuit.

Introduction

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

about a sea change in Second Amendment jurisprudence. In Bruen’s

wake, the courts of appeals considered renewed constitutional challenges

to the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1). They

reached dramatically divergent results. A panel of the Third Circuit at

first held that felons were excluded from “the people” protected by the

Second Amendment, but the en banc court applied Bruen’s text-and-history analysis and held that § 922(g)(1) was unconstitutional as applied to

an individual with a nonviolent predicate conviction. A panel of the Ninth

Circuit similarly held that the statute violated the Second Amendment

as applied to someone with nonviolent offenses before vacating that decision en banc. The Fourth and Seventh Circuits assumed that as-applied

challenges to § 922(g)(1) were available in at least some circumstances.

By contrast, the Eighth, Tenth, and Eleventh Circuits all upheld

§ 922(g)(1) with no need for felony-by-felony determinations, although

those courts disagreed about whether a historical analysis was required.

The Court’s decision in United States v. Rahimi, 602 U.S. 680 (2024),

did little to quell the confusion. The courts of appeals continue to be

deeply divided after Rahimi. The Third, Fifth, and Sixth Circuits each

acknowledge that § 922(g)(1) is vulnerable to as-applied challenges. The

Eighth Circuit, however, has reaffirmed its conclusion that history supports applying § 922(g)(1) across the board with no need for felony-byfelony analysis. The Tenth and Eleventh Circuits continue to uphold the

statute in all applications based on dicta from this Court instead of the

historical analysis that Bruen demands. The Fourth Circuit refuses to

consider as-applied challenges on several grounds, including that felons

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

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

that there is a history of disarming certain classes of individuals that

supports applying § 922(g)(1) to all felons.

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

intractable conflict in the courts of appeals over the scope of a fundamental right. And the Fifth Circuit’s decision is wrong. Section 922(g)(1) is a

mid-20th century innovation drafted when Congress believed—incorrectly—that the Second Amendment does not protect an individual right

to bear arms. So Congress made no effort to pass a law that was “consistent with the Nation’s historical tradition of firearm regulation.” See

Bruen, 597 U.S. at 24. Rather, it passed a sweeping ban that is irreconcilable with our history and tradition. Section 922(g)(1) is facially unconstitutional because its lifetime prohibition on gun possession imposes a

historically unprecedented burden on the right to bear arms. No historical firearm law imposed permanent disarmament. And the justification

behind § 922(g)(1)—disarming a broad group of potentially irresponsible

individuals—also fails historical scrutiny. At most, our history shows a

tradition of disarming violent individuals who threaten armed insurrection or pose a present physical threat to others. So, at the very least,

§ 922(g)(1) is unconstitutional as applied to individuals like Acosta who

were previously convicted of crimes that do not establish a present threat

of violence. And the Fifth Circuit’s decision that Acosta could be disarmed because he was on parole when he possessed a gun flouts the plain

text of § 922(g)(1), which disarms individuals based on a prior conviction,

not based on their status as a parolee.

This question is critically important. Section 922(g)(1) is one of the

most commonly charged federal offenses. Uncertainty about whether the

statute is constitutional affects thousands of criminal cases each year.

Even more concerning, § 922(g)(1) categorically and permanently prohibits millions of Americans—the vast majority of whom have nonviolent

convictions—from exercising their right to keep and bear arms.

This Court’s intervention is urgently needed to resolve the scope of a

fundamental constitutional right. After Rahimi, the confusion among the

courts of appeals has only deepened. This question will not go away, and

this is an ideal vehicle to resolve it. The Court should grant certiorari.

Opinion Below

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

States v. Acosta, No. 25-50083 (5th Cir. Sept. 25, 2025) (per curiam), is

reproduced at Pet. App. 1a–2a.

Jurisdiction

The opinion and judgment of the United States Court of Appeals for

the Fifth Circuit were entered on September 25, 2025. This petition is

filed within 90 days after the judgment’s entry. See Sup. Ct. R. 13.1. The

Court has jurisdiction to grant certiorari under 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

The Second Amendment provides: “A well regulated Militia, being

necessary to the security of a free State, the right of the people to keep

and bear Arms, shall not be infringed.”

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

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

of, a crime punishable by imprisonment for a term exceeding one year …

to … possess in or affecting commerce, any firearm or ammunition.”

Statement

A. Legal background.

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

arms simply because of their status as felons.” Kanter v. Barr, 919 F.3d

437, 451 (7th Cir. 2019) (Barrett, J., dissenting). Indeed, “[b]ans on exfelons possessing firearms were first adopted in the 1920s and 1930s,

almost a century and a half after the Founding.” Adam Winkler, Heller’s

Catch-22, 56 UCLA L. REV. 1551, 1563 (2009). In 1938, Congress criminalized firearm possession by individuals convicted of certain crimes for

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

1251 (1938). But that statute was much narrower than the modern version. The Federal Firearms Act only applied to someone “convicted of a

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

mayhem, kidnaping, burglary, housebreaking,” and certain kinds of aggravated assault, id. § 1(6). The Act prohibited an individual with such

a conviction from “receiv[ing]” a firearm, and it considered possession to

be “presumptive evidence” of receipt. Id. § 2(f).

2. It was not until the 1960s that the federal felon-in-possession

statute took on its modern form. At the time, Congress shared a widely

held—but incorrect—understanding of the Second Amendment. In committee testimony, the Attorney General assured Congress that “[w]ith

respect to the second amendment, the Supreme Court of the United

States long ago made it clear that the amendment did not guarantee to

any individuals the right to bear arms” and opined that “the right to bear

arms protected by the second amendment relates only to the maintenance of the militia.” Federal Firearms Act: Hearings Before the Subcomm. to Investigate Juvenile Delinq. of the Sen. Comm. on the Judiciary,

89th Cong. 41 (1965). And Congress dismissed constitutional concerns

about federal firearm regulations, explaining that the Second Amendment posed “no obstacle” because federal regulations did not “hamper

the present-day militia.” S. Rep. No. 90-1097 (1968), reprinted in 1968

U.S.C.C.A.N. 2112, 2169. Congress relied on court decisions—including

United States v. Miller, 307 U.S. 174 (1939)—which held that the Second

Amendment “was not adopted with the individual rights in mind.” Id.

Unconstrained by the Second Amendment, “Congress sought to rule

broadly,” employing an “expansive legislative approach” to pass a

“sweeping prophylaxis … against misuse of firearms.” Scarborough v.

United States, 431 U.S. 563, 572 (1977) (first quote); Lewis v. United

States, 445 U.S. 55, 61, 63 (1980) (second and third quotes). In particular,

Congress was concerned with keeping firearms out of the hands of broad

categories of “potentially irresponsible persons, including convicted felons.” Barrett v. United States, 423 U.S. 212, 220 (1976). So it enacted two

significant changes that brought about the modern felon-in-possession

ban. First, Congress expanded the Federal Firearms Act to prohibit individuals convicted of any crime “punishable by imprisonment for a term

exceeding one year”—not just violent crimes—from receiving a firearm.

See An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342,

§ 2, 75 Stat. 757, 757 (1961). Second, a few years later, Congress criminalized possession of a firearm—not just receipt—by anyone with a felony conviction. See Omnibus Crime Control and Safe Streets Act of 1968,

Pub. L. No. 90-351, § 1202(a)(1), 82 Stat. 197, 236.

3. In District of Columbia v. Heller, this Court held for the first time

that the Second Amendment codifies an individual right to keep and bear

arms—a right that is not limited to militia service. 554 U.S. 570, 579–

600 (2008). In reaching this conclusion, the Court conducted a “textual

analysis” of the Second Amendment’s language and surveyed the

Amendment’s “historical background.” Id. at 578, 592. The Court had “no

doubt, on the basis of both text and history, that the Second Amendment

conferred an individual right to keep and bear arms.” Id. at 595. Relying

on the historical understanding of the Amendment, however, the Court

recognized that “the right secured by the Second Amendment is not unlimited.” Id. at 626. The Court identified several “longstanding” and “presumptively lawful” firearm regulations, such as prohibitions on felons

possessing firearms. Id. at 626–27 & n.27. But the Court cautioned that

it was not “undertak[ing] an exhaustive historical analysis … of the full

scope of the Second Amendment.” Id. at 626. And it did not cite any historical examples of these “longstanding” laws, explaining that there

would be “time enough to expound upon the historical justifications for

the[se] exceptions … if and when those exceptions come before us.” Id. at

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

issue, finding that it was historically unprecedented and thus violated

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

After Heller, the courts of appeals coalesced around a two-step framework for analyzing Second Amendment challenges that focused on the

historical scope of the Second Amendment at step one and applied

means-ends scrutiny at step two. See, e.g., Kanter, 919 F.3d at 441–42;

United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017). And this

Court’s recognition that the Second Amendment protects an individual

right to bear arms brought renewed constitutional challenges to

§ 922(g)(1). But the courts of appeals almost uniformly rejected Second

Amendment challenges to the statute, either applying means-ends scrutiny or relying on Heller’s “presumptively lawful” language. See, e.g.,

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

cases). The lone exception was the Third Circuit, which held that

§ 922(g)(1) was unconstitutional as applied to two individuals with underlying convictions—one for corrupting a minor and the other for carrying a handgun without a license—that “were not serious enough to strip

them of their Second Amendment rights.” Binderup v. Attorney General,

836 F.3d 336, 351–57 (3d Cir. 2016) (en banc).

4. Then came Bruen. In Bruen, this Court held that the two-step

framework adopted by the courts of appeals was “one step too many.” 597

U.S. at 19. Instead, the Court explained that Heller demanded a test

“centered on constitutional text and history.” Id. at 22. Under this test,

“when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 17.

“The government must then justify its regulation by demonstrating that

it is consistent with the Nation’s historical tradition of firearm regulation.” Id. at 24. “Only then may a court conclude that the individual’s

conduct falls outside the Second Amendment’s unqualified command.”

Id. (cleaned up).

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

appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. “A court must ascertain whether the

new law is ‘relevantly similar’ to laws that our tradition is understood to

permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’” Id. (quoting Bruen, 597 U.S. at 29). The

law need not be a “historical twin,” but analogical reasoning is also not

a “regulatory blank check.” Bruen, 597 U.S. at 30. “How” and “why” the

regulations burden the right to bear arms are central to this inquiry.

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

whether the modern and historical regulations impose a “comparable

burden” (the how) and “whether that burden is comparably justified” (the

why). Bruen, 597 U.S. at 29. “Even when a law regulates arms-bearing

for a permissible reason, … it may not be compatible with the right if it

does so to an extent beyond what was done at the founding.” Rahimi, 602

U.S. at 692.

B. Proceedings below.

1. Acosta is a convicted felon. In 2015, he was convicted in Texas

state court of being a felon in possession of a firearm, for which he was

sentenced to three years’ imprisonment. In 2018, Acosta was convicted

in Texas state court of aggravated assault with a deadly weapon, for

which he was sentenced to 10 years’ imprisonment. He was paroled in

2023. In June 2024, a warrant issued for a parole violation.

In this case, police officers investigating suspected methamphetamine distribution at Acosta’s residence obtained a search warrant for the

house in August 2024 after a confidential informant bought methamphetamine there. Officers found a Taurus G3C 9x19mm handgun in one

of the bedrooms where Acosta was hiding. They also found drug paraphernalia, body armor, ammunition, and a magazine loaded with 34

rounds of 9x19mm ammunition in Acosta’s bedroom. Acosta admitted to

officers that he was a convicted felon and knew that it was illegal for him

to possess a firearm. He also admitted ownership of the Taurus handgun

and that he had put the firearm in the bedroom closet before the search

warrant was executed. Acosta had purchased the 34-round magazine

about two weeks earlier. The handgun had been manufactured in Brazil.

2. Acosta was charged in a one-count indictment with “possess[ing]

a firearm, to wit: a Taurus model G3C handgun, said firearm having

been shipped and transported in interstate commerce,” “knowing that he

had been convicted of a crime punishable by imprisonment for a term

exceeding one year,” in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8).

3. Acosta moved to dismiss the indictment on two grounds. First, he

argued that § 922(g)(1) is unconstitutional under the Second Amend-

ment, both facially and as applied to him, under Bruen and Rahimi. Second, he argued that the statute exceeds Congress’s power under the Commerce Clause, as interpreted by this Court in Lopez v. United States, 514

U.S. 549 (1995). He acknowledged that the second argument was foreclosed by Fifth Circuit precedent and noted that he was raising it to preserve it for further review.

Acosta filed an amended motion to dismiss after the Fifth Circuit issued its decision in United States v. Diaz, 116 F.4th 458 (2004), cert. denied, 145 S. Ct. 2822 (2025). He conceded that Diaz foreclosed his facial

challenge to § 922(g)(1) but presented the argument to preserve it for

further review. Acosta also reurged his as-applied challenge, arguing

that, unlike Diaz, he “does not have a felony conviction for theft” and

“lacks any conviction consistent with the nation’s history of firearm regulation.” On this point, he acknowledged that “his argument concerning

lifetime disarmament is foreclosed” by Diaz. Finally, Acosta reurged his

Commerce Clause argument.

The district court denied Acosta’s motion, citing its orders in other

cases upholding the constitutionality of § 922(g)(1). (citing United States

v. Collette, 630 F. Supp. 3d 841 (W.D. Tex. 2022), and United States v.

Charles, 633 F. Supp. 3d 874 (W.D. Tex. 2022)). The court further held

that Diaz confirmed the constitutionality of § 922(g)(1) in Acosta’s case

as his “criminal history includes a conviction for a serious crime that has

a ‘representative historical analogue’ at the Founding that would be considered a felony, or punished as such, by disarmament or some greater

punishment—aggravated assault with a deadly weapon.” (quoting

Bruen, 597 U.S. at 30).

4. Acosta pleaded guilty to the indictment. The district court sentenced him to 115 months’ imprisonment (to run consecutively to any

sentence imposed on unrelated charges in state court) and three years’

supervised release.

5. Acosta appealed. He raised both facial and as-applied challenges

to the constitutionality of § 922(g)(1) under Bruen’s framework, as clarified in Rahimi and the Fifth Circuit’s decision in Diaz. Diaz established

three points: (1) “felons” are part of “the people,” and thus § 922(g)(1) is

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

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

applied to Diaz because—when considering only his prior convictions—

his prior felony conviction for vehicle theft was relevantly similar to the

Founding-era crime of horse theft, which was punishable by death or estate forfeiture, id. at 467, 469–70.

After Diaz, Fifth Circuit held in United States v. Bullock that

§ 922(g)(1) was constitutional as applied to a defendant with prior convictions for aggravated assault and manslaughter in which he killed a

person while firing a gun into a crowd. 123 F.4th 183, 184–85 (2024) (5th

Cir. 2024), cert. denied, 2025 WL 2824426, No. 25-5208 (U.S. Oct. 6,

2025). Bullock reasoned that the defendant’s conduct “‘fits neatly’ within

our Nation’s historical tradition” of “‘prohibit[ing] dangerous people from

possessing guns.’” Id. at 185 (quoting Rahimi, 602 U.S. at 698, and Kanter, 919 F.3d at 451 (Barrett, J., dissenting)). That tradition, Bullock

said, was one of “severely punishing individuals convicted of homicide, a

prototypical common law felony considered a very dangerous offense.”

Id. (cleaned up). Bullock also concluded that the conduct underlying the

defendant’s aggravated assault and manslaughter convictions was “‘relevantly similar’ to, and arguably more dangerous than, the ‘prototypical

affray [which] involved fighting in public,’ the precursor to the ‘going

armed’ laws punishable by arms forfeiture.” Id. (quoting Rahimi, 602

U.S. at 697–98). Finally, Bullock said that “the justification behind going

armed laws, to ‘mitigate demonstrated threats of physical violence,’ supports a tradition of disarming individuals like Bullock pursuant to

§ 922(g)(1), whose underlying convictions stemmed from the threat and

commission of violence with a firearm.” Id. (quoting Rahimi, 602 U.S. at

698).

Also relevant to Acosta’s case was the Fifth Circuit’s decision in

United States v. Giglio, 126 F.4th 1039 (2025). There, the court held that

§ 922(g)(1) was constitutional as applied to a defendant who possessed a

firearm while serving a federal term of supervised release for a felony

conviction. Id. at 1040–41. Giglio reasoned that there is a historical tradition of “disarm[ing] those who continue to serve sentences for felony

convictions.” Id. at 1044. That tradition, Giglio held, matches the “why”

and “how” of “disarming felons who are still serving out sentences.” Id.

As for the “why,” historical forfeiture laws “burdened the right to bear

arms for the same reasons that we now burden the rights of convicts on

supervised release: to deter criminal conduct, protect the public, and facilitate the convict’s rehabilitation.” Id. (quoting United States v. Moore,

111 F.4th 266, 269–70 (3d Cir. 2024)). As for the “how,” even though historical laws “required forfeiture of all chattels, that practice can nevertheless justify the narrower practice of prohibiting possession of some

(viz., firearms).” Id. (citing the greater-includes-the-lesser theories of

Diaz, 116 F.4th at 469–70, and Rahimi, 602 U.S. at 699). Finally, “[b]olstering” Giglio’s “conclusion is the unremarkable proposition that those

subject to criminal sentences do not enjoy the full panoply of rights guaranteed by our Constitution.” Id. at 1045.

Acosta argued that § 922(g)(1) facially violates the Second Amendment to preserve the issue for further review but acknowledged that Diaz

foreclosed his argument. As for his as-applied challenge to § 922(g)(1),

Acosta argued that, under the Diaz framework, the Government cannot

identify a historical tradition permanently disarming, or severely punishing by capital punishment or estate forfeiture, someone convicted of

aggravated assault or who is on parole. Nor, he argued, could the Government show any such tradition has a comparable purpose to

§ 922(g)(1) or comparably burdens the right to bear arms.

Offenses that were punished by death are not analogous to Acosta’s

prior convictions. Although the penal laws varied by jurisdiction, 1 colonies and the new states generally punished “arson, piracy, treason, murder, sodomy, burglary, robbery, rape, horse-stealing, slave rebellion, and

often counterfeiting” by death. Laura E. Randa, Society’s Final Solution:

A History and Discussion of the Death Penalty 4 (Univ. Press Am. Inc.,

1997); see also Phillip English Mackey, Voices Against Death: American

Opposition to Capital Punishment 1787–1975 xiv (Burt Franklin & Co.,

Inc., 1976). The First Congress recognized only a select few felonies as

capital, including treason, murder, certain piracy and maritime offenses,

prison break for capital offenders, and counterfeiting U.S. securities or

certificates. See Crimes Act, 1 Cong. Ch. 9, 1 Stat. 112 (1790). None of

these offenses, Acosta argued, are sufficiently analogous to aggravated

assault with a deadly weapon.

Acosta nevertheless acknowledged that, if Bullock is correct that

there is a historical tradition of disarming those who are “dangerous”

1 Frank E. Hartung, Trends in the Use of Capital Punishment, 284

Annals of Am. Academy of Pol. & Soc. Sci. 8, 10 (1952) (“The English

colonies in this country had from ten to eighteen capital offenses.”).

and “whose underlying convictions stemmed from the threat and commission of violence with a firearm[,]” Bullock, 123 F.4th and 185, then

his as-applied challenge to § 922(g)(1) was foreclosed by Bullock. Still,

Acosta argued, for purposes of preserving the argument for further review, that Bullock was wrongly decided.

As for his being on parole at the time of the instant offense, Acosta

acknowledged that, if Giglio is correct that there is a historical tradition

of disarming those who are serving felony sentences, Giglio, 126 F.4th at

1043–44, and that this tradition supports disarming those who are on

federal supervised release for a felony conviction, then his as-applied

challenge to § 922(g)(1) was foreclosed by Giglio. Acosta nevertheless argued below, for purposes of preserving the argument for further review,

that Giglio was wrongly decided.

The Government moved for summary affirmance based on Acosta’s

concessions. Acosta took no position on the motion. The Fifth Circuit

granted the Government’s motion, agreeing with the parties that

Acosta’s facial and as-applied challenges were foreclosed by Diaz and Giglio. Pet. App. 1a–2a.

Reasons for Granting the Petition

The courts of appeals are deeply divided over the scope of a

fundamental constitutional right.

The courts of appeals are deeply divided over how to analyze Second

Amendment challenges to § 922(g)(1). Some circuits see no need to conduct the text-and-history analysis required by Bruen, relying instead on

this Court’s dicta that felon-in-possession prohibitions are presumptively

lawful. Others apply Bruen’s text-and-history framework but reach dramatically different results. Examining the text, the circuits disagree

about whether felons are part of “the people” protected by the Second

Amendment. And in analyzing the historical evidence, the circuits are

split over which traditions justify § 922(g)(1), whether the statute is vulnerable to as-applied challenges, and (if so) what standard to apply.

1. The Second Circuit recently rejected a facial challenge to

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

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

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

presumptively constitutional,’ … survives Bruen.” Zherka v. Bondi, 140

F.4th 68, 74 (2d Cir. 2025) (cleaned up). Turning to the as-applied challenge, the Second Circuit found that the defendant, despite being a felon,

remained part of “the people.” Id. at 76–77. But under Bruen’s second

step, the court rejected a case-by-case approach to determine if certain

nonviolent felonies exempted a person from prosecution under §

922(g)(1), id. at 95–96, and found that, “[l]ike § 922(g)(1), laws from seventeenth century England, the American Colonies, and the early United

States, establish that it has long been permissible to regulate firearms

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

a particularized finding that the individuals disarmed pose a threat to

society.” Id. at 78–79.

2. The Third Circuit, sitting en banc, struck down § 922(g)(1) as applied to an individual convicted of food stamp fraud who did not “pose[ ]

a physical danger to others.” Range v. Attorney General, 124 F.4th 218,

232 (3d Cir. 2024). The court held that the plaintiff was part of “the people” protected by the Second Amendment despite his prior conviction. Id.

at 226–28. And the court held that the government failed to show “a

longstanding history and tradition of depriving people like [the plaintiff]

of their firearms.” Id. at 232. In doing so, the court rejected the government’s reliance on status-based restrictions, emphasizing that Founding-era laws disarmed distrusted groups—like loyalists, Native Americans, religious minorities, and Black Americans—based on fear of rebellion. Id. at 229–30. The court also dismissed the government’s “dangerousness” principle, which would encompass even nonviolent offenders,

as “far too broad.” Id. at 230 (cleaned up). Finally, the court rejected the

government’s reliance on capital punishment and forfeiture, explaining

that “the Founding-era practice of punishing some nonviolent crimes

with death does not suggest that the particular (and distinct) punishment at issue here—de facto lifetime disarmament for all felonies and

felony-equivalent misdemeanors—is rooted in our Nation’s history and

tradition.” Id. at 230–31. However, the court subsequently held that a

prosecution under § 922(g)(1) is justified as applied to “a convict on supervised release.” United States v. Moore, 111 F.4th 266, 269–73 (3d Cir.

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

3. The Fourth Circuit takes a much different approach, refusing to

entertain as-applied challenges and upholding § 922(g)(1) “without regard to the specific conviction that established [a person’s] inability to

lawfully possess firearms.” United States v. Hunt, 123 F.4th 697, 700 (4th

Cir. 2024), cert. denied, No. 24-6818 (U.S. Jun. 2, 2025). The court provided two alternative grounds for this conclusion. First, it held that it

remained bound by its pre-Bruen precedent foreclosing as-applied challenges to § 922(g)(1). Id. at 702–04. Those earlier cases, in turn, relied on

Heller’s statement that felon-in-possession bans are “presumptively lawful” and its reference to “law-abiding” citizens. Id. at 703. Second, the

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

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

that “the Second Amendment protects firearms possession by the lawabiding, not by felons.” Id. at 705. And at the second step, the court con-

cluded that legislatures could categorically disarm groups from possessing firearms in a historical analysis mirroring the Eighth Circuit’s

discussed below. Id. at 705–08.

4. The Sixth Circuit allows as-applied challenges 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). The court first confirmed that felons are part of “the people” protected by the Second

Amendment. Id. at 648–50. Next, the court found historical support for

disarming “presumptively dangerous” groups who posed a threat to public order—like religious minorities, Native Americans, loyalists, and

freedmen—but explained that these laws all allowed individuals to show

that they posed no danger. Id. at 657. So the court held that an individual

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

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

conducting this dangerousness inquiry, the court explained that courts

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

felony underlying his § 922(g)(1) conviction.” Id. at 659–60. The Sixth

Circuit extended this reasoning to hold that, like the Third Circuit, the

nation’s historical tradition of “disarming the dangerous” and “forfeiture

laws” “also supports disarming those on parole, probation, or supervised

release.” United States v. Goins, 118 F.4th 794, 801–02 (6th Cir. 2024)

(citing Moore, 111 F.4th at 269–72).

5. The Seventh Circuit has assumed that as-applied challenges to

§ 922(g)(1) are available. United States v. Gay, 98 F.4th 843, 846 (7th Cir.

2024). But the court concluded that the defendant in Gay—who had convictions for violent felonies and was on parole when he possessed a gun—

was “not a ‘law-abiding, responsible’ person who has a constitutional

right to possess firearms.” Id. at 847 (quoting Bruen, 597 U.S. at 26, 70).

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

the board with “no need for felony-by-felony litigation.” United States v.

Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024), reh’g en banc denied, 121

F.4th 656 (8th Cir. 2024), cert. denied, No. 24-6517 (U.S. May 19, 2025).

Based on historical laws prohibiting certain groups of people—religious

minorities, Native Americans, and those who refused to declare an oath

of loyalty—from possessing guns, the court reasoned that legislatures

have long exercised authority to disarm broad categories of people who

are “not law-abiding” or “presented an unacceptable risk of danger if

armed.” Id. at 1126–28. Although the Third and Sixth Circuits surveyed

similar laws and found that they did not support disarming individuals

who pose no risk of danger, the Eighth Circuit disagreed. The court explained that “not all persons disarmed under historical precedents …

were violent or dangerous,” so “there is no requirement for an individualized determination of dangerousness as to each person in a class of

prohibited persons.” Id. at 1128.

7. A Ninth Circuit panel held that § 922(g)(1) is unconstitutional as

applied to a defendant with only nonviolent convictions. United States v.

Duarte, 101 F.4th 657, 661 (9th Cir. 2024), reh’g en banc granted, opinion

vacated, 108 F.4th 786 (9th Cir. 2024). Sitting en banc, however, the court

is aligned with the Second, Fourth, Eighth, Tenth, and Eleventh circuits

and held that “§ 922(g)(1) is not unconstitutional as applied to nonviolent

felons.” United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025). The

court relied on this Court’s repeated assurances that prohibitions on the

possession of a firearm by felons are presumptively lawful and that

Bruen and Rahimi did not disrupt the court’s pre-Bruen precedent that

foreclosed Second Amendment challenges to § 922(g)(1). Id. at 750–52. It

then applied Bruen’s test to confirm its reading that no felony-by-felony

evaluation of § 922(g)(1) is required. Id. at 761. While the court found

that the conduct proscribed by § 922(g)(1) is covered by the plain text of

the Second Amendment, id., the court held that the government met its

burden under Bruen’s second step based on historical evidence consistent

with “two regulatory principles that: (1) legislatures may disarm those

who have committed the most serious crimes; and (2) legislatures may

categorically disarm those they deem dangerous, without an individualized determination of dangerousness,” id. at 761–62.

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

applied to “all individuals convicted of felonies” with no need to “draw[ ]

constitutional distinctions based on the type of felony involved.” Vincent

v. Bondi, 127 F.4th 1263, 1265 (10th Cir. 2025), pet. for cert. filed, No. 241155 (U.S. May 8, 2025). But the court did not engage in Bruen’s textand-history analysis. Instead, the court held that it remained bound by

pre-Bruen precedent. Id. at 1264–65. That precedent, in turn, foreclosed

as-applied challenges to § 922(g)(1) based on Heller’s statement that prohibitions on the possession of firearms by felons were “longstanding” and

“presumptively lawful.” Id. at 1265. So the court held that “the Second

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

9. The Eleventh Circuit has also held—without conducting a historical analysis—that statutes disqualifying felons from possessing a firearm under any and all circumstances do not offend the Second Amendment. United States v. Dubois, 139 F.4th 887, 893 (11th Cir. 2025). Like

the Second and Tenth Circuits, the court held that its pre-Bruen precedent—which relied on Heller—remained binding. Id. Thus, the court reaffirmed its conclusion that felons are categorically disqualified from exercising their Second Amendment right under Heller. Id. at 893–94.

10. The Fifth Circuit’s decision below underscores the deep divisions

between the courts of appeals.

a. The Fifth Circuit splits with other circuits on two preliminary

questions. Unlike the Second, Fourth, Ninth, Tenth, and Eleventh Circuits—which have held that they remain bound by their pre-Bruen precedent—the Fifth Circuit agrees with the Third and Sixth Circuits that

Bruen rendered its prior precedent obsolete. Diaz, 116 F.4th at 466. And

while the Tenth and Eleventh Circuits have declined to conduct any historical analysis based on Heller’s “presumptively lawful” language, the

Fifth Circuit joined the Third and Sixth Circuits in refusing to treat that

language as controlling. 2 Id. Instead, these courts acknowledge that

Bruen requires a full text-and-history analysis. Id.

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

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

Fourth Circuit—by holding that felons are part of “the people” protected

by the Second Amendment. Id. at 466–67.

c. At the second step, the Fifth Circuit’s historical analysis diverges

from other circuits in several respects. The Second, Fourth, Eighth, and

Ninth Circuits have held that history supports upholding § 922(g)(1) regardless of a defendant’s underlying conviction. But the Fifth Circuit left

the door open for “as-applied challenges by defendants with different

2 The Fifth Circuit expressly rejected the Eleventh Circuit’s reliance

“solely upon Rahimi’s mention of Heller’s ‘felons and the mentally ill’ language in upholding the constitutionality of § 922(g)(1).” Diaz, 116 F.4th

at 466 n.2.

predicate convictions.” Diaz, 116 F.4th at 469 & 470 n.4. At first, the Fifth

Circuit’s limited its analysis to whether the felony predicates that triggered § 922(g)(1) were relevantly similar to crimes that subjected the

convictions to “serious and permanent punishment” at the Founding.

Diaz, 116 F.4th at 470 & n.4. This is different than the line drawn by the

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

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

since held that § 922(g)(1) is constitutional as applied to individuals convicted of “violent crimes.” United States v. Bullock, 123 F.4th 183, 185

(5th Cir. 2024). And the Fifth Circuit has held that defendants who were

on supervised release when they possessed a firearm can be disarmed

under § 922(g)(1), joining the Third and Sixth Circuits. See Giglio, 126

F.4th at 1044; United States v. Contreras, 125 F.4th 725, 732–33 (5th Cir.

2025).

The courts of appeals are fractured over how to conduct the Second

Amendment analysis, and the splits are entrenched and deepening. This

Court’s intervention is needed to resolve the scope of the right to keep

and bear arms.

II.

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

precedent.

The Fifth Circuit’s decision in Diaz, followed by the panel below, correctly held that, under the plain text of the Second Amendment, felons

are part of “the people” protected by the Amendment. 116 F.4th at 467;

see Pet. App. 1a (citing Diaz). After all, this Court has explained that “the

people” “unambiguously refers to all members of the political community,” so the right to keep and bear arms belongs to “all Americans.” Heller, 554 U.S. at 580. But the Fifth Circuit has misapplied Bruen’s historical analysis. Section 922(g)(1) does not align with our Nation’s tradition

of firearm regulation on either of the two central considerations: how and

why it burdens the right to keep and bear arms. See Bruen, 597 U.S. at

29; Rahimi, 602 U.S. at 692. The difference in how § 922(g)(1) burdens

the right to bear arms is fatal to the statute facially, and why it burdens

the right to bear arms dooms the statute as applied to offenders like

Acosta. And the Fifth Circuit’s conclusion that someone on parole can be

disarmed under § 922(g)(1) is divorced from the plain text of the statute,

which has nothing to do with parole or release status.

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 felonin-possession statute—four decades before Heller and more than a halfcentury before Bruen—it did not believe that the Second Amendment

protected an individual right to keep and bear arms. So Congress did not

try to pass a law that aligned with the “Nation’s historical tradition of

firearm regulation.” See Bruen, 597 U.S. at 17. Instead—dismissing the

Second Amendment as “no obstacle”—it employed an “expansive legislative approach” to pass a “sweeping prophylaxis … against misuse of firearms.” Lewis, 445 U.S. at 61, 63. And that sweeping, permanent prohibition on gun possession imposes a burden far broader than any firearm

regulation in our Nation’s history.

2. The Fifth Circuit has recognized that § 922(g)(1)’s permanent disarmament requires a historical analogue that also permanently prevented individuals from possessing guns. See Diaz, 116 F.4th at 469. But

the court did not cite any historical firearm regulation imposing permanent disarmament. 3 Instead, the court relied on capital punishment and

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

plied to someone convicted of a violent crime, the Fifth Circuit has cited

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

those laws permanently deprived individuals of the right to keep and

bear arms.

forfeiture laws as historical analogues justifying § 922(g)(1). Id. at 467–

68. That reliance conflicts with this Court’s precedent in three ways. 4

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

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

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

other words, the government’s historical analogues must regulate firearms. In Rahimi, this Court relied only on historical laws that “specifically addressed firearms violence.” 602 U.S. at 694–95. So too in Bruen.

597 U.S. at 38–66. Capital punishment and estate forfeiture, however,

are not firearm regulations. So they cannot justify § 922(g)(1). The Fifth

Circuit reached a contrary conclusion by misreading Rahimi.

4 The Fifth Circuit’s decision also misstates the historical evidence in

three ways. First, the court cited a Founding-era New York law as “authorizing the death penalty for theft of chattels worth over five pounds.”

Diaz, 116 F.4th at 468. But theft is not among the crimes subject to the

death penalty under that law. See Act of Feb. 21, 1788, ch. 37, 1788 N.Y.

Laws 664–65. Second, despite the court’s characterization of forfeiture

laws as a type of “permanent” disarmament (Diaz, 116 F.4th at 469, 471),

“[f]orfeiture still allows a person to keep their other firearms or obtain

additional ones.” Rahimi, 602 U.S. at 760 (Thomas, J., dissenting).

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

the only source it cited explains that “hardly any horse thieves were executed.” Kathryn Preyer, Crime and Reform in Post-Revolutionary Virginia, 1 LAW & HIST. REV. 53, 73 (1983).

First, the Fifth Circuit asserted that Rahimi “consider[ed] several

laws that were not explicitly related to guns.” Diaz, 116 F.4th at 468. But

Rahimi says otherwise. In Rahimi, this Court relied on two historical

legal regimes—surety laws and going armed laws—that both “specifically addressed firearms violence.” 602 U.S. at 694–95. To be sure, surety

laws were not “passed solely for the purpose of regulating firearm possession or use.” Diaz, 116 F.4th at 468. But this Court emphasized that,

“[i]mportantly for this case, the surety laws also targeted the misuse of

firearms.” Rahimi, 602 U.S. at 696 (emphasis added). In other words,

historical laws that did not target the misuse of firearms—like capital

punishment and estate forfeiture—are not proper analogues.

Second, the Fifth Circuit noted that this Court accepted a 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 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 and

forfeiture simply did not target gun violence.

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

not a second-class right, subject to an entirely different body of rules than

the other Bill of Rights guarantees.” Bruen, 597 U.S. at 70 (cleaned up).

But the Fifth Circuit’s reasoning—that because capital punishment is an

“obviously permanent” deprivation of an individual’s right to bear arms,

the lesser restriction of permanent disarmament is permissible for individuals who are not executed, Diaz, 116 F.4th at 469—conflicts with how

the Constitution treats other fundamental rights.

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

Rights even though an offender who committed the same act in 1790

would have faced capital punishment.” Williams, 113 F.4th at 658. “No

one suggests that such an individual has no right to a jury trial or be free

from unreasonable searches and seizures.” Id. And “we wouldn’t say that

the state can deprive felons of the right to free speech because felons lost

that right via execution at the time of the founding.” Kanter, 919 F.3d at

461–62 (Barrett, J., dissenting). “The obvious point that the dead enjoy

no rights does not tell us what the founding-era generation would have

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

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

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

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

c. Finally, this Court has expressed “doubt that three colonial regulations could suffice to show a tradition.” Bruen, 597 U.S. at 46. But the

Fifth Circuit relied on only three laws to establish a tradition of permanently punishing individuals who have been convicted of theft: a colonial

Massachusetts law, a Founding-era New York law, and a post-revolutionary Virginia law. Diaz, 116 F.4th at 468–69. Putting to one side whether

the court’s reading of these laws is correct, this limited historical evidence is too slender a reed to establish a tradition justifying the deprivation of a fundamental constitutional right.

3. A law is not compatible with the Second Amendment if it regulates the right to bear arms “to an extent beyond what was done at the

founding.” Rahimi, 602 U.S. at 692. Section 922(g)(1) does just that. It

imposes a lifetime ban on firearm possession that would have been unimaginable to the Founders. Thus, § 922(g)(1) facially violates the Second Amendment because there are “no set of circumstances” under which

it is valid. See Rahimi, 602 U.S. at 693 (quoting United States v. Salerno,

481 U.S. 739, 745 (1987)).

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

individuals based on their prior felony convictions for

offenses that did not result in disarmament in the

Founding era.

1. Even if § 922(g)(1) is facially constitutional, the statute violates

the Second Amendment as applied to individuals who do not pose a present threat of violence based on their prior convictions. The Fifth Circuit

seems to have acknowledged as much, explaining that the historical analogues that support applying the statute to individuals with violent convictions lose their force when an individual’s “underlying convictions do

not inherently involve a threat of violence.” Diaz, 116 F.4th at 471 n.5.

Indeed, the government has not cited any tradition of disarming nonviolent individuals. The government’s historical evidence shows—at most—

a tradition of disarming violent individuals who threaten armed insurrection or presently threaten the physical safety of others. See Kanter,

919 F.3d at 454 (Barrett, J., dissenting) (explaining that historical evidence shows “that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety”). And there is no basis in law that condones the Fifth Circuit’s decision to answer a question not presented for

its review without deciding whether the actual statute of conviction could

constitutionally be applied to a defendant.

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

challenge the criminal penalties the government sought to impose for

violating that statute. The government was thus obligated to defend the

appealed conviction by demonstrating that applying § 922(g)(1) to someone based on the felonies identified in Acosta’s guilty plea—possession of

a firearm by a felon and aggravated assault with a deadly weapon—is

consistent with our Nation’s historical tradition. See Bruen, 597 U.S. at

29. Nothing in Bruen or Rahimi suggests that that inquiry turns on an

independent assessment of whether there may be some other reason why

Acosta could constitutionally be disarmed. See Rahimi, 602 U.S. at 700–

02 (because the government charged Rahimi only with violating

§ 922(g)(8), the Court asked only whether § 922(g)(8) could pass constitutional muster, not whether the government could have constitutionally

disarm him on another basis); see also id. at 777 (Thomas, J., dissenting)

(This case is not about whether States can disarm people who threaten

others. … Instead, the question is whether the Government can strip the

Second Amendment right of anyone subject to a protective order[.]”).

Limiting the analysis to whether § 922(g)(1)’s permanent prohibition on

firearm possession imposes a burden on the Second Amendment right

consistent with our Nation’s tradition requires the court to review how

the law actually regulates that behavior. See Williams v. Illinois, 399

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

and enforced violated the defendant’s equal protection rights and rejecting the state’s argument that the statute was “not constitutionally infirm

simply because the legislature could have achieved the same result by

some other means”).

Indeed, other constitutional questions are similarly limited to the

particular law being challenged. See, e.g., TikTok v. Garland, 145 S. Ct.

57, 68 (2025) (“[W]e look [only] to the provisions of the Act that give rise

to the effective TikTok ban that petitioners argue burdens their First

Amendment rights” to address their as-applied challenge); United States

v. Eichman, 496 U.S. 310, 313 n.1, 316 n.5 (1990) (holding that the government could not criminally punish a defendant for burning Post Office

flag under a law specifically outlawing flag burning, even though he

could be subject to prosecution under a different statute based on the

same conduct); United States v. Grace, 461 U.S. 171, 183–84 (1983) (invalidating a law that categorically banned the display of signs outside

its building under the First Amendment, even though the same behavior

may have been regulated through “reasonable time, place and manner

restrictions”).

3. In short, the government sought to imprison Acosta because he

possessed a firearm after having been convicted of certain felonies—not

because he was on probation. Indeed, § 922(g)(1) regulates the possession

of a firearm by an individual who has been convicted of a felony, not possession of a firearm by an individual on probation or other supervision.

Whether prior convictions for offenses that neither resulted in disarmament nor were subject to severe punishment at the Founding is the question that ought to have been analyzed on appeal. The Fifth Circuit’s approach, which allows extra-offense characteristics and allows a wide

range of potentially disqualifying factors outside the conduct § 922(g)(1)

regulates, is contrary to the historical-tradition approach Bruen adopted

and the longstanding principles observed by the Court when reviewing

the constitutionality of a specific statute. The Fifth Circuit significantly

erred in choosing to analyze the constitutionality of § 922(g)(1) as applied

to Acosta based on factors outside the scope of the statute.

At a minimum, this Court should grant, vacate, and remand with

instructions for the Fifth Circuit to consider Acosta’s as-applied

challenge to his § 922(g)(1) conviction itself, without any inquiry

independent of the conduct the statute actually regulates.

III.

This is a critically important and recurring question.

The Court should grant the petition because the question is critically

important and recurring. After all, “§ 922(g) is no minor provision.” Rehaif v. United States, 588 U.S. 225, 239 (2019) (Alito, J., dissenting). Out

of about 64,000 cases reported to the Sentencing Commission in Fiscal

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

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

at 1 (June 2024). Those convictions accounted for over 10% of all federal

criminal cases. See id.

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

statute prohibits millions of Americans from exercising their right to

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

number of individuals with felony convictions range from 19 million to

24 million. Dru Stevenson, In Defense of Felon-in-Possession Laws, 43

CARDOZO L. REV. 1573, 1591 (2022) (citations omitted). And § 922(g)(1) is

particularly troubling because most of the individuals it prohibits from

possessing firearms are peaceful, with convictions for only 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.

IV.

This case is an ideal vehicle for addressing this question.

This case presents an ideal vehicle for addressing whether § 922(g)(1)

violates the Second Amendment. The case cleanly presents a purely legal

issue. There are no jurisdictional problems, factual disputes, or preservation issues. Acosta thoroughly briefed his facial and as-applied Second

Amendment challenges in both the district court and the court of appeals. The district court and Fifth Circuit squarely rejected both challenges.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted.

December 22, 2025