Petition for Writ of Certiorari — Dalando T. Garner, Petitioner v. United States
Supreme Court briefJan 27, 2026
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No. ________________
______________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
______________________________________
DALANDO T. GARNER,
Petitioner,
versus
UNITED STATES OF AMERICA,
Respondent.
__________________________________________________________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals for the Fifth Circuit
__________________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
__________________________________________________________________
CRISTIE GAUTREAUX GIBBENS
Interim Federal Public Defender
DUSTIN C. TALBOT
Appellate Chief
Federal Public Defender’s Office
Middle and Western Districts of
Louisiana
102 Versailles Boulevard, Suite 816
Lafayette, Louisiana 70501
Telephone: (337) 262-6336
Attorney for the Petitioner
QUESTION PRESENTED
Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C.
§ 922(g)(1), plainly unconstitutional on its face under New York State Rifle & Pistol
Association, Inc. v. Bruen, 597 U.S. 1 (2022), because it is permanent and applies to
all persons convicted of felonies?
1
TABLE OF CONTENTS
QUESTION PRESENTED ........................................................................................... 1
TABLE OF CONTENTS ............................................................................................... 2
APPENDIX INDEX ...................................................................................................... 3
TABLE OF AUTHORITIES ......................................................................................... 4
OPINIONS BELOW ..................................................................................................... 7
JURISDICTION............................................................................................................. 7
STATUTORY PROVISIONS INVOLVED .................................................................... 7
STATEMENT OF THE CASE....................................................................................... 8
REASONS FOR GRANTING THE WRIT ................................................................... 9
I.
II.
Section 922(g)(1) is facially unconstitutional under the Second
Amendment because there is no historical tradition of prohibiting all
felons from possessing all firearms for life.................................................. 9
A.
Bruen represented a fundamental shift in Second Amendment
B.
Under the new framework, Section 922(g)(1) violates the Second
Amendment because firearm possession is protected by the
Amendment's plain text, and the government cannot show a
historical tradition of categorically disarming felons ...................... 11
analysis ................................................................................................ 9
1.
The text of the Second Amendment covers Garner's conduct,
and he is among "the people" the Amendment protects ............ 11
2.
There is no relevantly similar historical regulation that bans
firearm possession for life ........................................................... 13
The question whether Section 922(g)(1) violates the Second Amendment
has divided the courts of appeals and its resolution is of great
importance ................................................................................................ 20
CONCLUSION ............................................................................................................ 25
2
APPENDIX INDEX
Fifth Circuit opinion, October 29, 2025 ............................................................App. 001
District court judgment, March 27, 2025..........................................................App. 003
3
TABLE OF AUTHORITIES
CASES
Binderup v. Attorney General of the U.S., 836 F.3d 336 (3d Cir. 2016) (en banc)
........................................................................................................................... 17
District of Columbia v. Heller, 554 U.S. 570 (2008) ............................................passim
Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017) ................................................. 12-13
Folajtar v. Attorney General of the United States, 980 F.3d 897 (3d Cir. 2020) ...... 17
Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) ............................................................... 9
Jennings v. State, 5 Tex. Ct. App. 298 (1878) ............................................................ 19
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting) ................. 16-17
McDonald v. City of Chicago, 561 U.S. 742 (2010) .................................................. 9-10
Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives,
700 F.3d 185 (5th Cir. 2012) .......................................................................... 9-10
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) ....passim
Range v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024) (en banc)
........................................................................................................................... 23
Rehaif v. United States, 588 U.S. 225 (2019) ............................................................ 23
United States v. Chester, 628 F.3d 673 (5th Cir. 2010) ....................................... 10, 17
United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) ........................................ 8, 22-23
United States v. Duarte, No. 22-50048, 137 F.4th 743 (9th Cir. May 9, 2025) (en
banc) .................................................................................................................. 22
United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024) .................................... 21-22
United States v. Lara, 815 F.3d 605 (9th Cir. 2016) .................................................. 12
United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020) ....................................... 9-10
4
United States v. Rahimi, 602 U.S. 680 (2024) .....................................................passim
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).......................................... 12
United States v. Williams, 113 F.4th 637 (6th Cir. 2024).......................................... 21
STATUTES
U.S. Const. Amend. I ................................................................................................... 12
U.S. Const. Amend. II (“Second Amendment”)....................................................passim
U.S. Const. Amend. IV................................................................................................. 12
18 U.S.C. § 922(g)(1) .............................................................................................passim
18 U.S.C. § 922(g)(8) .................................................................................................... 13
1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688) ................................... 17
Sec’y of the Commonwealth, Acts and Resolves of Massachusetts 1786–87 (1893) . 18
OTHER
Adam Winkler, Heller’s Catch-22, 56 U.C.L.A. L. REV. 1551 (2009) ......................... 15
C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 HARV. J.L. & PUB.
POLICY 695 (2009) ............................................................................................. 16
Dep’t of Justice, Bureau of Justice Statistics, Sean Rosenmerkel et al., Felony
Sentences in State Courts, 2006—Statistical Tables (rev. Nov. 2010) ........... 24
Dep’t of Justice, Bureau of Justice Statistics, Mark A. Motivans, Federal Justice
Statistics, 2022 (Jan. 2024) .............................................................................. 24
Dru Stevenson, In Defense of Felon-in-Possession Laws, 43 CARDOZO L. REV.
1573, 1591 (2022) .............................................................................................. 24
Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous
Persons from Possessing Arms, 20 WYO. L. REV. 249 (2020) .................... 16, 18
Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep
Arms in Early America: The Legal Context of the Second Amendment, 25
LAW & HIST. REV. 139 (2007) ....................................................................... 17-18
5
Steven G. Bradbury, et al., Whether the Second Amendment Secures an
Individual Right, 28 OP. O.L.C. 126 (2004) ..................................................... 19
6
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Fifth Circuit
affirming petitioner’s conviction and sentence can be found at App. 001.
JURISDICTION
The judgment of the court of appeals was entered on October 29, 2025. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
18 U.S.C. § 922(g)(1) states in relevant part:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
***
to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
The Second Amendment to the U.S. Constitution provides in relevant part:
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
7
STATEMENT OF THE CASE
The Petitioner Dalando T. Garner was charged below with one count of being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). ROA.8. At the
time he possessed the firearm, Garner had prior felony convictions for (1) possession
of marijuana – second offense, (2) aggravated battery, (3) possession of a firearm by
a convicted felon, and (4) attempted possession of a firearm by a convicted felon.
ROA.127-29. Garner moved to dismiss the indictment as unconstitutional both
facially and as applied under the Second Amendment and New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), ROA.22. The court denied the motion
in a written memorandum order. ROA.49.
Garner entered a conditional plea preserving his right to appeal the denial of
his motion to dismiss. ROA.106-07. The district court sentenced Garner to 33 months
imprisonment, ROA.83, and he appealed to the Fifth Circuit.
A panel of the Fifth Circuit granted the government’s motion for summary
affirmance finding that Garner’s Second Amendment arguments against § 922(g)(1)
were foreclosed by recent Fifth Circuit precedent in United States v. Diaz, 116 F.4th
458 (5th Cir. 2024), and United States v. Schnur, 132 F.4th 863 (5th Cir. 2025). App.
001-002
8
REASONS FOR GRANTING THE WRIT
I.
Section 922(g)(1) is facially unconstitutional under the Second Amendment
because there is no historical tradition of prohibiting all felons from possessing
all firearms for life
A.
Bruen represented a fundamental shift in Second Amendment analysis
The Second Amendment to the U.S. Constitution mandates that a “well
regulated militia, being necessary to the security of a free state, the right of the people
to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. In Dist. of
Columbia v. Heller, this Court held that the Second Amendment codifies an
individual right to possess and carry weapons, explaining that the inherent right of
self-defense is central to its protections. 554 U.S. 570, 628 (2008); see also McDonald
v. City of Chicago, 561 U.S. 742, 767 (2010) (holding “that individual self-defense is
the central component of the Second Amendment right”).
Following Heller (but before Bruen), the Fifth Circuit and others “adopted a
two-step inquiry for analyzing laws that might impact the Second Amendment.”
Hollis v. Lynch, 827 F.3d 436, 446 (5th Cir. 2016). First, courts asked “whether the
challenged law impinge[d] upon a right protected by the Second Amendment—that
is, whether the law regulate[d] conduct that falls within the scope of the Second
Amendment’s guarantee.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco,
Firearms & Explosives [NRA], 700 F.3d 185, 194 (5th Cir. 2012); see also United
States v. McGinnis, 956 F.3d 747, 754 (5th Cir. 2020). To make that determination,
courts “look[ed] to whether the law harmonize[d] with the historical traditions
associated with the Second Amendment guarantee.” NRA, 700 F.3d at 194. If the
9
regulated conduct was deemed to fall outside the scope of the Second Amendment’s
protection under that framework, then the law was deemed constitutional without
further analysis. McGinnis, 956 F.3d at 754.
However, if the regulated conduct fell within the protective scope of the Second
Amendment, courts proceeded to step two: determining and applying “the
appropriate level of means-ends scrutiny—either strict or intermediate.” Id. (internal
quotation marks and citation omitted). “[T]he appropriate level of scrutiny
‘depend[ed] on the nature of the conduct being regulated and the degree to which the
challenged law burden[ed] the right.” NRA, 700 F.3d at 195 (quoting United States
v. Chester, 628 F.3d 673, 682 (5th Cir. 2010)). Under that framework, “a ‘regulation
that threaten[ed] a right at the core of the Second Amendment’—i.e., the right to
possess a firearm for self-defense in the home—‘trigger[ed] strict scrutiny,’ while ‘a
regulation that does not encroach on the core of the Second Amendment’ [was]
evaluated under intermediate scrutiny.” McGinnis, 956 F.3d at 754 (quoting NRA,
700 F.3d at 194).
In Bruen, this Court expressly abrogated the two-step inquiry adopted by the
Fifth Circuit and others and announced a new framework for analyzing Second
Amendment claims. The Court reasoned that “[s]tep one of the predominant
framework is broadly consistent with Heller, which demands a test rooted in the
Second Amendment’s text, as informed by history.” Bruen, 597 U.S. at 19. However,
Bruen rejected the practice of applying “means-end scrutiny” to conduct deemed
protected (i.e., step two of the old framework), explaining that “Heller and McDonald
10
do not support applying means-end scrutiny in the Second Amendment context.” Id.
Under Bruen’s newly announced framework, “when the Second Amendment’s plain
text covers an individual’s conduct, the Constitution presumptively protects that
conduct.” Id. at 17. And, upon such a finding, “[t]he government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition
of firearm regulation.” Id. at 24. Only upon the government making such a showing
may a court “conclude that the individual’s conduct falls outside the Second
Amendment’s ‘unqualified command.’” Id. (citation omitted). In other words, for a
firearm regulation to pass constitutional muster, “the government must affirmatively
prove that its firearms regulation is part of the historical tradition that delimits the
outer bounds of the right to keep and bear arms.” Id. at 19.
B.
Under the new framework, Section 922(g)(1) violates the Second
Amendment because firearm possession is protected by the
Amendment’s plain text, and the government cannot show a historical
tradition of categorically disarming felons
Straightforward application of Bruen’s test makes clear that Section 922(g)(1)
cannot survive constitutional scrutiny, and the Fifth Circuit was wrong to hold
otherwise.
1.
The text of the Second Amendment covers Garner’s conduct, and
he is among “the people” the Amendment protects
The plain text of the Second Amendment protects the right to possess and carry
weapons for self-defense. See Heller, 554 U.S. at 583-92. And Bruen clarified that this
right extends outside of the home. 597 U.S. at 8. Section 922(g)(1) is a permanent and
complete ban on any firearm possession by felons in any context. Thus, the statute
11
regulates (and in fact fully prohibits) conduct that is presumptively protected under
the plain text of the Second Amendment. As a result, the statute is presumptively
unconstitutional under Bruen. Id. at 24.
In an attempt to sidestep this straightforward conclusion, the government has
adopted a novel argument that a person’s status as a “felon” excludes that person
from the Second Amendment’s protections. But the plain text of the Second
Amendment and this Court’s precedent hold otherwise. In Heller, this Court rejected
the theory that “the people” protected by the Second Amendment was limited to a
specific subset—i.e., those in a militia. 554 U.S. at 579-81, 592-600. The Court
explained that when the Constitution refers to “‘the people,’ the term unambiguously
refers to all members of the political community, not an unspecified subset,” and there
is thus a “strong presumption that the Second Amendment right is exercised
individually and belongs to all Americans.” Id. at 580-81 (emphasis added).
Comparison to other constitutional amendments confirms this view. As Heller
explained, “the people” is a “term of art employed in select parts of the Constitution,”
including “the Fourth Amendment, . . . the First and Second Amendments, and . . .
the Ninth and Tenth Amendments.” Id. (quoting United States v. Verdugo-Urquidez,
494 U.S. 259, 265 (1990)). It is beyond challenge that felons are among “the people”
whose “persons, houses, papers, and effects” enjoy Fourth Amendment protection.
U.S. Const. Amend. IV; see United States v. Lara, 815 F.3d 605 (9th Cir. 2016). And
felons likewise enjoy “the right of the people” to “petition the government for a redress
of grievances.” U.S. Const. Amend. I; see Entler v. Gregoire, 872 F.3d 1031, 1039 (9th
12
Cir. 2017). If a person with a felony conviction is one of “the people” protected by the
First and Fourth Amendments, Heller teaches that he is one of “the people” protected
by the Second Amendment, too.
This view was confirmed when this Court addressed a challenge to a different
subsection of § 922(g) last term in United States v. Rahimi, 602 U.S. 680 (2024). The
Court analyzed historical laws dealing with dangerous persons to find that § 922(g)(8)
was consistent with historical tradition and therefore constitutional. Id. at 693-96.
But the Court never suggested for a moment that Mr. Rahimi was not one of “the
people” protected by the Second Amendment. Accordingly, Garner is among “the
people” to whom the Second Amendment applies.
2.
There is no relevantly similar historical regulation that bans
firearm possession for life
Bruen provided guidance on conducting historical analysis in the hunt for
relevantly similar regulations. The Court can consider “whether ‘historical precedent’
from before, during, and even after the founding evinces a comparable tradition of
regulation.” Bruen, 597 U.S. at 27. But Bruen reminded that “not all history is
created equal.” Id. at 34. That is because “[c]onstitutional rights are enshrined with
the scope they were understood to have when the people adopted them.” Id.
(quotations omitted). Because the Second Amendment was adopted in 1791, earlier
historical evidence “may not illuminate the scope of the right if linguistic or legal
conventions changed in the intervening years.” Id. Similarly, post-ratification laws
that “are inconsistent with the original meaning of the constitutional text obviously
cannot overcome or alter that text.” Id. at 36 (quotations and emphasis omitted).
13
Bruen—and, later, Rahimi—also offered analytical guidance for evaluating
historical clues. As this Court explained in Rahimi: “A court must ascertain whether
the new law is ‘relevantly similar’ to laws that our tradition is understood to permit,
‘apply[ing] faithfully the balance struck by the founding generation to modern
circumstances.’” Rahimi, 602 U.S. at 681 (quoting Bruen, 597 U.S. at 29). In doing so,
“[w]hy and how the regulation burdens the right are central to this inquiry.”
Id. Thus, “if laws at the founding regulated firearm use to address particular
problems, that will be a strong indicator that contemporary laws imposing similar
restrictions for similar reasons fall within a permissible category of regulations.” Id.
Importantly, though, “[e]ven when a law regulates arms-bearing for a permissible
reason, . . . it may not be compatible with the right if it does so to an extent beyond
what was done at the founding.” Id. And this Court made clear that the burden falls
squarely on the government to “affirmatively prove that its firearms regulation is
part of the historical tradition that delimits the outer bounds of the right to keep and
bear arms.” Bruen, 597 U.S. at 19. If the government cannot do so, the infringement
on the right cannot survive.
In Heller, this Court confirmed an individual’s right to keep and bear arms but
cautioned that this right is “not unlimited.” 554 U.S. at 626. As an example, the Court
provided, in dicta, a non-exhaustive list of “presumptively lawful regulatory
measures”—i.e., ones that had not yet undergone a full historical analysis. Id. at 627
n.26 (emphasis added). This list included laws restricting possession by felons and
the mentally ill and the carrying of firearms in “sensitive places.” Id. at 626. Heller
14
emphasized that “we do not undertake an exhaustive historical analysis today of the
full scope of the Second Amendment.” Id. And since this was the Court’s “first indepth examination of the Second Amendment,” Heller explained that it could not
“clarify the entire field.” Id. at 635. But Heller promised that there would be “time
enough to expound upon the historical justifications for the exceptions we have
mentioned if and when those exceptions come before us.” Id. That time is now. The
government cannot meet its burden to establish the requisite “relevantly similar”
historical tradition. Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29).
The government cannot meet its burden to establish Section 922(g)(1)’s
historical pedigree for a simple reason: neither the federal government nor a single
state barred all people convicted of felonies until the 20th century. See, e.g., Adam
Winkler, Heller’s Catch-22, 56 U.C.L.A. L. REV. 1551, 1563 (2009). The modern
version of Section 922(g)(1) was adopted 177 years after the Second Amendment.
Bruen, 597 U.S. at 66 n.28 (“[L]ate-19th-century evidence” and any “20th-century
evidence . . . does not provide insight into the meaning of the Second Amendment
when it contradicts earlier evidence.”).
Section 922(g)(1) very much contradicts earlier evidence from the relevant
historical periods: “(1) . . . early modern England; (2) the American Colonies and the
early Republic; (3) antebellum America; [and] (4) Reconstruction.” Bruen, 597 U.S. at
34. Those periods lack evidence of any analogue to Section 922(g)(1).
The government may argue that, historically, some jurisdictions sometimes
regulated firearm use by those considered presently violent. But not all people with
15
a felony conviction are presently violent. Moreover, the historical regulations
required an individualized assessment of a person’s threat to society. And finally, the
historical regulations almost always allowed people deemed violent to still possess
weapons for self-defense. Thus, even those convicted of serious crimes—including
rebellion—remained entitled to protect themselves in a dangerous world, with
firearms if necessary. Those laws’ targeted nature makes them a far cry from
declaring that any person, convicted of any felony, can never possess “the most
popular weapon chosen by Americans for self-defense in the home.” Heller, 554 U.S.
at 629.
England, before the founding, did not ban felons from ever again possessing a
firearm. See Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting);
C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 HARV. J.L. & PUB.
POLICY 695, 717 (2009); Joseph G.S. Greenlee, The Historical Justification for
Prohibiting Dangerous Persons from Possessing Arms, 20 WYO. L. REV. 249, 260
(2020). To the extent that England sought to disarm individuals, those regulations
usually required a more culpable mental state and made exceptions for self-defense,
both features absent from Section 922(g)(1). Rahimi discusses at length the surety
laws and laws against affray or going armed against the king’s subjects. 602 U.S. at
693-99.
To the extent that England tried to disarm whole classes of subjects, it did so
on discriminatory grounds that would be unconstitutional today—and yet still
permitted those targeted to keep arms for self-defense. For example, in the age of
16
William and Mary (both Protestants), Catholics were presumed loyal to James II (a
Catholic trying to retake the throne) and treasonous. Thus, Catholics could keep
“Arms, Weapons, Gunpowder, [and] Ammunition,” only if they declared allegiance to
the crown and renounced key parts of their faith. See Bruen, 597 U.S. at 45 n.12
(quoting 1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688)). In short, the
English never tried to disarm all felons. Rather, they tried to limit the use of firearms
by those individuals found to be violent and rebellious. And even those individuals
could keep arms for self-defense. A “relevantly similar” historical regulation that is
not. Bruen, 597 U.S. at 29.
“[T]here is little evidence of an early American practice of,” forever barring all
people convicted of a felony from ever again possessing a firearm. Bruen, 597 U.S. 1
at 46. The early United States accepted that those who committed crimes—even
serious ones—retained a right to defend themselves. That can be seen in the colonies’
and states’ statutes, early American practice, and rejected proposals from state
constitutional conventions. See Kanter, 919 F.3d at 454 (Barrett, J., dissenting);
Folajtar v. Att'y Gen. of the United States, 980 F.3d 897, 915 (3d Cir. 2020) (Bibas,
J., dissenting); Chester, 628 F.3d at 679; Binderup v. Att’y Gen. of the U.S., 836 F.3d
336, 368 (3d Cir. 2016) (en banc) (Hardiman, J., concurring).
To the extent that the new nation sought to disarm people, the regulatory
approach was much more limited than Section 922(g)(1). For example, the Virginia
colony disarmed Catholics, still viewed as traitors to the crown. Robert H. Churchill,
Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The
17
Legal Context of the Second Amendment, 25 LAW & HIST. REV. 139, 157 (2007)
(citation omitted). But there was an exception for weapons allowed by a justice of the
peace “for the defense of his house and person.” Id. And following the Declaration of
Independence, Pennsylvania ordered that those who did not pledge allegiance to the
Commonwealth and renounce British authority be disarmed. Id. at 159. Thus, to the
extent that either regulation would comply with the Second Amendment, as
understood today, they required a specific finding that a specific person posed a risk
of violence to the state.
Colonial and Founding-era practice also suggests that committing a serious
crime did not result in a permanent disarmament. For example, leaders of the
seminal Massachusetts Bay colony once disarmed supporters of a banished
seditionist. Greenlee, supra, at 263 (citations omitted). Nevertheless, “[s]ome
supporters who confessed their sins were welcomed back into the community and able
to retain their arms.” Id. And in 1787, after the participants in Shay’s Rebellion
attacked courthouses, a federal arsenal, and the Massachusetts militia, they were
barred from bearing arms, for three years, not life. Id. at 268-67. In fact,
Massachusetts law required the Commonwealth to hold and then return the rebels’
arms after that period. Sec’y of the Commonwealth, Acts and Resolves of
Massachusetts 1786–87, at 178 (1893).
American practice and laws during the Nineteenth Century—before and after
the Civil War—also confirm that Section 922(g)(1) does not comport with the
“Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 34. The
18
United States continued to regulate—but not ban—firearm possession by those
feared to be violent. See id. at 55 (holding that 19th century surety laws allowed
people likely to breach the peace to still keep guns for self-defense or if they posted a
bond). But, as discussed above, that is not similar to Section 922(g)(1). There is no
evidence of a precursor to Section 922(g)(1)’s broad, categorical ban. In fact, there are
at least two documented instances where attempts to disarm a class of offenders was
rejected as inconsistent with the right to bear arms.
First, as with Shay’s Rebellion, Congress declined to disarm southerners who
fought against the Union in the Civil War. Steven G. Bradbury, et al., Whether the
Second Amendment Secures an Individual Right, 28 OP. O.L.C. 126, 226 (2004). The
reason: some northern and Republican senators feared that doing so “would violate
the Second Amendment.” Id. Second, when a Texas law ordered that people convicted
of unlawfully using a pistol be disarmed, it was struck down as unconstitutional
under the Texas constitution. Jennings v. State, 5 Tex. Ct. App. 298, 298 (1878).
In sum, the 19th century history provides clear evidence that mass
disarmament for people convicted of an offense is unconstitutional. Not only was
there a consistent practice of allowing people who broke the law to keep weapons for
self-defense—at least one state appellate court and Congress agreed that disarming
lawbreakers was unconstitutional. As Bruen teaches: “[I]f some jurisdictions actually
attempted to enact analogous regulations during this timeframe, but those proposals
were rejected on constitutional grounds, that rejection surely would provide some
probative evidence of unconstitutionality.” 597 U.S. at 27.
19
Rahimi did not affect this analysis—and, in fact, made all the clearer Section
922(g)(1)’s lack of constitutional backing. The prohibition there passed constitutional
muster because there were historical analogues temporarily disarming those proven
to be presently violent. 602 U.S. at 698-95. The restraining order subsection of
§ 922(g) passed constitutional muster because there is an individualized finding of
dangerousness, after notice and an opportunity to be heard, and the restriction lasts
only as long as the restraining order does. Id. at 686-89.
Again, “[w]hy and how the regulation burdens the right are central to this
inquiry.” Id. at 692. Section 922(g)(1) contains a lifetime prohibition on possession of
firearms by all convicted felons, without an individualized determination of ongoing
dangerousness. It therefore violates the Second Amendment on its face, and Garner’s
conviction under Section 922(g)(1) must be vacated.
II.
The question whether Section 922(g)(1) violates the Second Amendment has
divided the courts of appeals and its resolution is of great importance
Since Bruen, the courts of appeals have reached different opinions about
whether Section 922(g)(1) is constitutional under the Second Amendment. The
Eighth and Ninth Circuits have concluded that the statute does not violate the
Second Amendment and have foreclosed future as-applied challenges. The Fifth
Circuit has also rejected facial Second Amendment challenges but has adopted a case
by case approach to as-applied challenges looking only at the disqualifying felony
conviction. The Sixth Circuit in contrast has adopted a dangerousness test for asapplied challenges. Meanwhile, the Third Circuit has found Section 922(g)(1)
unconstitutional as applied to specific defendants. These differing opinions have
20
generated opposite outcomes, with Second Amendment claims entirely foreclosed in
certain jurisdictions and not in others.
The Sixth Circuit in United States v. Williams, 113 F.4th 637 (6th Cir. 2024)
held that Section 922(g)(1) is constitutional both on its face and as applied to
dangerous individuals. After conducting an extensive historical analysis, the court
concluded that governments have traditionally had authority to disarm groups
deemed dangerous, provided that individuals within those groups have an
opportunity to demonstrate they do not pose a danger. Applying this framework, the
court found that Section 922(g)(1) is constitutional as applied to the defendant
Williams, who had prior convictions for aggravated robbery, attempted murder, and
unlawfully possessing a firearm as a felon. Notably, the court held that when
evaluating as-applied challenges to Section 922(g)(1), courts should consider a
defendant’s entire criminal record, not just the specific predicate felony, and assess
whether their offenses fall into historically recognized categories of dangerous crimes
like violent felonies or offenses that inherently pose a significant threat of danger.
While the court left open whether nonviolent felonies like fraud could justify
disarmament, it concluded that Williams’ violent criminal history clearly
demonstrated he was dangerous and therefore could be constitutionally prohibited
from possessing firearms under Section 922(g)(1). Id. at 645-63.
The Eighth Circuit analyzed the constitutionality of Section 922(g)(1) in
United States v. Jackson, 110 F.4th 1120, 1121 (8th Cir. 2024). There, it held that
Section 922(g)(1) is constitutional as applied to the defendant Jackson, who had prior
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drug trafficking convictions. The court reasoned that historically, legislatures had
broad authority to disqualify categories of persons from possessing firearms, either
because they deviated from legal norms or presented an unacceptable risk of
dangerousness. The court found that Congress acted within this historical tradition
in enacting the felon-in-possession ban, and rejected Jackson’s argument that the law
was unconstitutional as applied to his “nonviolent” felony convictions, concluding that
individual determinations of dangerousness were not historically required to justify
such categorical prohibitions. Id. at 1125-29. Similarly, the en banc Ninth Circuit
recently held that Section 922(g)(1) is constitutional, even as applied to a nonviolent
felons. United States v. Duarte, No. 22-50048, 137 F.4th 743 (9th Cir. May 9, 2025)
(en banc).
The Fifth Circuit has rejected specific as applied challenges to Section 922(g)(1)
but has not foreclosed future such challenges. In United States v. Diaz, 116 F.4th
458, 465 (5th Cir. 2024), the Fifth Circuit parted ways with other Circuits, holding
that that Bruen abrogated its prior decisions upholding Section 922(g)(1) against
Second Amendment challenge. It held that Heller’s reference to “longstanding
prohibitions on the possession of firearms by felons” did not reflect “binding precedent
on the issue now before us,” ultimately concluding that felons were amongst “the
people” protected by the Second Amendment. Id. at 465-66 & n.2. However, it found
that Section 922(g)(1) was constitutional on its face and as applied to that particular
defendant. Id. at 472. It explained that Section 922(g)(1)’s application was consistent
with this Nation’s historical tradition of firearm regulation because “[a]t the time of
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the Second Amendment’s ratification, those—like Diaz—guilty of certain crimes—
like theft—were punished permanently and severely,” that is, by death or estate
forfeiture, and “permanent disarmament was [also] a part of our country’s arsenal of
available punishments at that time.” Id. Nonetheless, the court expressly held that
“[o]ur opinion today does not foreclose future as-applied challenges by defendants
with different predicate convictions.” Id. at 470 n.4.
The en banc Third Circuit, in contrast, applied Bruen’s text-and-history test
and found Section 922(g)(1) unconstitutional as applied to a person whose prior
conviction for making false statements in relation to food stamps had exposed him to
more than a year in prison. Range v. Att'y Gen. United States, 124 F.4th 218 (3d Cir.
2024) (en banc). First, the court rejected the government’s contention that a person’s
past conviction for an offense punishable by over one year operates to remove him
from “the people” to whom the right to keep and bear arms is vested. Id. at 226-28.
Then, upon examination of the relevant historical evidence, the court held that the
government had failed in its attempt to demonstrate a broad tradition of American
laws imposing anything near a permanent ban on firearm possession on account of
past misdeeds. Id. at 228-32.
Thus, the circuit split regarding the constitutionality of Section 922(g)(1)
remains. Resolving the question presented is also important. After all, Ҥ 922(g) is no
minor provision.” Rehaif v. United States, 588 U.S. 225, 239 (2019) (Alito, J.,
dissenting). Out of about 64,000 cases reported to the Sentencing Commission in
Fiscal Year 2023, more than 7,100 involved convictions under § 922(g)(1). See U.S.
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Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses, at 1 (June 2024).
Those convictions accounted for over 10 percent of all federal criminal cases. See id.
The government itself has acknowledged “the special need for certainty about Section
922(g)(1) given the frequency with which the government brings criminal cases under
it.” Gov’t Supp. Br. at 10 n.5, Garland v. Range, No. 23-374 (U.S. June 24, 2024).
Even beyond new prosecutions, § 922(g)(1)’s reach is staggering. The statute
prohibits millions of Americans from exercising their right to keep and bear arms for
the rest of their lives. Recent estimates of the number of individuals with felony
convictions range from 19 million to 24 million. Dru Stevenson, In Defense of Felon-
in-Possession Laws, 43 CARDOZO L. REV. 1573, 1591 (2022) (citations omitted). And §
922(g)(1) is particularly troubling because most of the individuals it prohibits from
possessing firearms are peaceful, with convictions for only nonviolent offenses. Less
than 20% of state felony convictions and less than 5% of federal felony convictions are
for violent offenses. See Dep’t of Justice, Bureau of Justice Statistics, Sean
Rosenmerkel et al., Felony Sentences in State Courts, 2006—Statistical Tables, at 3
(Table 1.1) (rev. Nov. 2010); Dep’t of Justice, Bureau of Justice Statistics, Mark A.
Motivans, Federal Justice Statistics, 2022, at 12 (Table 7) (Jan. 2024).
Given § 922(g)(1)’s widespread impact both on new prosecutions and on the
millions of nonviolent Americans it prohibits from exercising a fundamental
constitutional right, this Court should answer this important and recurring question
as soon as possible.
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CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted this January 27, 2026,
CRISTIE GAUTREAUX GIBBENS
Interim Federal Public Defender
BY:
s/ Dustin C. Talbot
DUSTIN C. TALBOT
Appellate Chief
Federal Public Defender’s Office
Middle and Western Districts of Louisiana
102 Versailles Boulevard, Suite 816
Lafayette, Louisiana 70501
Telephone: (337) 262-6336
Attorney for the Petitioner
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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.