Petition for Writ of Certiorari — Kennan Alexis, Petitioner v. United States

No. ___________

IN THE

Supreme Court of the United States

KENNAN ALEXIS,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CLAUDE J. KELLY

FEDERAL PUBLIC DEFENDER

EASTERN DISTRICT OF LOUISIANA

SAMANTHA J. KUHN

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel of Record

STEVEN E. SPIRES

RESEARCH AND WRITING ATTORNEY

500 POYDRAS STREET, SUITE 318

HALE BOGGS FEDERAL BUILDING

NEW ORLEANS, LOUISIANA 70130

(504) 589-7930

SAMANTHA_KUHN@FD.ORG

COUNSEL FOR PETITIONER

QUESTION PRESENTED

Whether 18 U.S.C. § 922(g)(1) violates the Second Amendment either facially or as

applied to individuals who, like Petitioner, only have felony convictions for non-violent

drug offenses.

ii

RELATED PROCEEDINGS

The following proceedings are directly related to this case:

•

United States v. Alexis, No. 2:23-cr-223, U.S. District Court for the

Eastern District of Louisiana. Judgment entered August 20, 2024.

•

United States v. Alexis, No. 24-30811, U.S. Court of Appeals for the Fifth

Circuit. Judgment entered November 7, 2025.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................ ii

RELATED PROCEEDINGS......................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 7

JUDGMENT AT ISSUE ................................................................................................ 7

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

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED .......................... 8

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

A. Legal background. .................................................................................... 9

B. Proceedings below. ................................................................................. 14

REASONS FOR GRANTING THE PETITION .......................................................... 17

I.

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

constitutional right. .......................................................................................... 17

II. Fifth Circuit caselaw on this question is wrong and conflicts with this

Court’s precedent. ............................................................................................. 20

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

unprecedented lifetime ban on firearm possession. ................................... 21

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

of non-violent offenses. ................................................................................ 25

III. This is a critically important and recurring question. .................................... 29

CONCLUSION............................................................................................................. 31

APPENDIX

iv

TABLE OF AUTHORITIES

Cases

Barrett v. United States, 423 U.S. 212 (1976)....................................... 9, 11, 24, 26, 28

Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016)......................................... 13

Cases v. United States, 131 F.2d 916 (1st Cir. 1942).................................................. 10

Cody v. United States, 460 F.2d 34 (8th Cir. 1972) .................................................... 12

District of Columbia v. Heller, 554 U.S. 570 (2008) ......................... 9, 12, 13, 17, 20, 21

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) ............................................... 9, 13, 24, 26

Lewis v. United States, 445 U.S. 55, 61 (1980) ..................................................... 11, 21

Logan v. United States, 552 U.S. 23 (2007) ................................................................ 25

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) ... 13, 14, 15, 16,

17, 19, 20, 21, 22, 24, 28

Pitsilides v. Barr, 128 F.4th 203 (3d Cir. 2025) .......................................................... 20

Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024) .......................... 18, 19, 28, 29

Scarborough v. United States, 431 U.S. 563 (1977) ................................................... 11

Stevens v. United States, 440 F.2d 144 (6th Cir. 1971) .............................................. 12

United States v. Bullock, 123 F.4th 183 (5th Cir. 2024) .............................................. 26

United States v. Connelly, 117 F.4th 269 (5th Cir. 2024) ............................................ 27

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) ...................... 19, 21, 22, 23, 24

United States v. Duarte, 137 F.4th 743 (9th Cir. 2024) ............................................... 18

United States v. Dubois, 139 F.4th 887 (11th Cir. 2025) ............................................. 17

United States v. Focia, 869 F.3d 1269 (11th Cir. 2017) ............................................... 13

United States v. Hembree, _ F.4th _, 2026 WL 217125 (5th Cir. Jan. 27, 2026) ....... 16

United States v. Hunt, 123 F.4th 697 (4th Cir. 2024) ............................................ 17, 18

United States v. Isaac, 2024 WL 4835243 (5th Cir. Nov. 20, 2024)............................. 26

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024) ........................................... 18

United States v. Johnson, 497 F.2d 548 (4th Cir. 1974)............................................. 12

United States v. Kimble, 142 F.4th 308 (5th Cir. 2025) .. 15, 16, 19, 20, 22, 24, 26, 27,

28

United States v. Miller, 307 U.S. 174 (1939) .................................................... 9, 10, 12

United States v. Moore, 666 F.3d 313 (4th Cir. 2012) .................................................. 13

United States v. Rahimi, 602 U.S. 680 (2024) ...... 14, 16, 20, 22, 23, 25, 26, 27, 28, 29

United States v. Salerno, 481 U.S. 739 (1987) ............................................................ 25

United States v. Schnur, 132 F.4th 863 (5th Cir. 2025) .............................................. 26

United States v. Tot, 131 F.2d 261 (3d Cir. 1942) ...................................................... 10

United States v. Williams, 113 F.4th 637 (6th Cir. 2024) .......................... 18, 20, 24, 25

Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025) ...................................................... 17

Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025) .............................................................. 17

Statutes

18 U.S.C. 922(g)(1) .ii, iv, 8, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 27, 29, 30, 31

28 U.S.C. § 1254 ............................................................................................................. 7

v

An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757

(1961)........................................................................................................................ 11

Federal Firearms Act, ch. 850, § 2(f), 52 Stat. 1250 (1938) ........................................... 9

Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat.

197 ............................................................................................................................ 11

Other Authorities

Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551 (2009) ................................. 9

Dep’t of Justice, Bureau of Justice Statistics, Mark A. Motivans, Federal Justice

Statistics, 2022 (Jan. 2024) ..................................................................................... 30

Dep’t of Justice, Bureau of Justice Statistics, Sean Rosenmerkel et al., Felony

Sentences in State Courts, 2006—Statistical Tables (rev. Nov. 2010)................... 30

Dru Stevenson,

In Defense of Felon-in-Possession Laws, 43 CARDOZO L. REV. 1573 (2022) ........... 29

Federal Firearms Act: Hearings Before the Subcomm. to Investigate Juvenile Delinq.

of the Sen. Comm. on the Judiciary, 89th Cong. 41 (1965)...................................... 10

S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2169 .................... 11

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

.................................................................................................................................. 29

Withdrawing the Attorney General’s Delegation of Authority, 90 Fed. Reg. 13,080

(Mar. 20, 2025) ......................................................................................................... 25

vi

IN THE

Supreme Court of the United States

KENNAN ALEXIS,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

JUDGMENT AT ISSUE

On November 7, 2025, a panel of the U.S. Court of Appeals for the Fifth Circuit

affirmed Petitioner’s judgment. The unpublished opinion is available on Westlaw at

2025 WL 3124475, and a copy is attached as part of the Appendix. App. 1a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1). The Fifth Circuit

entered its decision on November 7, 2025. App. 1a. This petition for a writ of certiorari

is timely filed pursuant to Supreme Court Rule 13(3) because it is being filed within

90 days of the Fifth Circuit’s entry of judgment.

7

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED

The Second Amendment to the U.S. Constitution 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.

8

STATEMENT OF THE CASE

A.

Legal background.

“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). Rather, “[b]ans on ex-felons 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 receipt 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).

Soon after Congress passed the Federal Firearms Act, this Court decided a

Second Amendment challenge to another federal firearm law. In United States v.

Miller, two defendants challenged their indictment for transporting an unregistered

short-barreled shotgun in interstate commerce. 307 U.S. 174, 175 (1939). This Court

held that the Second Amendment did not protect the right to possess a short-barreled

shotgun because such a weapon had no “reasonable relationship to the preservation

or efficiency of a well regulated militia.” Id. at 178. The Court explained that the

Second Amendment was adopted “[w]ith obvious purpose to assure the continuation

9

and render possible the effectiveness of [militia] forces” and “must be interpreted and

applied with that end in view.” Id.

Following Miller, the courts of appeals applied similar militia-focused

reasoning and rejected constitutional challenges to the Federal Firearm Act’s

provision prohibiting individuals convicted of violent crimes from receiving firearms.

For example, the First Circuit held that the Second Amendment did not protect

someone who was not “a member of any military organization” and who used a

firearm “without any thought or intention of contributing to the efficiency of the well

regulated militia.” Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942). And the

Third Circuit concluded that the Second Amendment “was not adopted with

individual rights in mind,” so it did not protect possession of a gun without “some

reasonable relationship to the preservation or efficiency of a well regulated militia.”

United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942).

It was not until the 1960s that the federal felon-in-possession statute took on its

modern form. At that time, Congress shared the militia-based understanding of the

Second Amendment outlined in Miller. 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). Congress dismissed constitutional

10

concerns about federal firearm regulations, explaining that the Second Amendment

posed “no obstacle” because federal regulations did not “hamper the present-day

militia.” S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2169.

Congress relied on court decisions—including Miller—which held that the Second

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

Thus, without concern for 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). Congress was particularly 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). Therefore, it

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). A few years later, Congress

went further and criminalized mere 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.

Courts upheld the new, sweeping felon-in-possession prohibition—again,

based on an incorrect understanding of the Second Amendment. For example, the

Sixth Circuit held that the Second Amendment did not limit Congress’s “power to

11

prohibit the possession of a firearm by a convicted felon.” Stevens v. United States,

440 F.2d 144, 149 (6th Cir. 1971). “Since the Second Amendment right ‘to keep and

bear Arms’ applies only to the right of the State to maintain a militia and not to the

individual’s right to bear arms, there can be no serious claim to any express

constitutional right of an individual to possess a firearm.” Id. (citing Miller, 307 U.S.

at 178). Other courts of appeals—relying on Miller—also rejected Second Amendment

challenges to the statute. See, e.g., United States v. Johnson, 497 F.2d 548, 550 (4th

Cir. 1974); Cody v. United States, 460 F.2d 34, 36–37 (8th Cir. 1972).

Decades later, 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

12

upon the historical justifications for the[se] exceptions … if and when those exceptions

come before us.” Id. at 635.

Following Heller, the courts of appeals coalesced around a two-step framework

for analyzing Second Amendment challenges, which focused on the historical scope of

the Second Amendment at step one, and applied means-ends scrutiny at step two. See,

e.g., Kanter, 919 F.3d at 441–42; United States v. Focia, 869 F.3d 1269, 1285 (11th Cir.

2017). And this Court’s recognition that the Second Amendment protects an individual

right brought renewed constitutional challenges to § 922(g)(1). But the courts of

appeals almost uniformly rejected Second Amendment challenges to the statute, either

applying means-ends scrutiny or relying on Heller’s “presumptively lawful” language.

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

but see Binderup v. Attorney General, 836 F.3d 336, 351–57 (3d Cir. 2016) (en banc)

(holding that § 922(g)(1) was unconstitutional as applied to two individuals with

underlying convictions that “were not serious enough to strip them of their Second

Amendment rights.”).

Then, in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, this Court held that

the prevailing two-step framework was “one step too many.” 597 U.S. 1, 19 (2022).

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.

13

“Only then may a court conclude that the individual’s conduct falls outside the Second

Amendment’s unqualified command.” Id. (cleaned up).

Bruen—and this Court’s later decision in United States v. Rahimi, 602 U.S.

680 (2024)—explained 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. More specifically, these

two 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.

On April 30, 2024, Petitioner pleaded guilty to two counts of possessing a

firearm after being convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1).

In support of his guilty plea, Petitioner admitted that he had previously been

convicted of drug-related offenses punishable by terms of imprisonment exceeding

14

one year. Specifically, Petitioner had prior felony convictions for possessing and

distributing marijuana, possessing heroin, and possessing with intent to distribute

cocaine—offenses he committed between 1999 and 2013.

At sentencing, Petitioner’s Sentencing Guidelines range was 70 to 87 months.

That range was calculated under U.S.S.G. § 2K2.1, which is the Guideline applicable

to firearm offenses. The district court determined that a within-Guidelines sentence

was appropriate and sentenced Petitioner to 78 months.

Petitioner appealed his § 922(g)(1) convictions. On appeal, he argued that the

statute is plainly unconstitutional under the framework established by this Court in

Bruen, either facially or as applied to individuals like him, whose only prior felony

convictions are for non-violent drug offenses.

While Petitioner’s appeal was pending, the Fifth Circuit decided United States

v. Kimble, 142 F.4th 308 (5th Cir. 2025). In Kimble, the court held that § 922(g)(1) “is

constitutional as applied to defendants with predicate felonies for drug-trafficking

offenses because of the intrinsic violence of the drug trade.” Id. at 312. After

explaining that “felons are unequivocally among ‘the people’ protected by the Second

Amendment,” id. at 311 (cleaned up), the court addressed the government’s two

theories in support of applying § 922(g)(1) to Mr. Kimble, who, like Petitioner, had

only non-violent drug-related prior felonies.

First, the court rejected the government’s argument that drug-trafficking is

analogous to founding-era felonies punishable by death or estate forfeiture such as

knowing receipt of a stolen horse or forgery of public securities. Id. at 312-14. The

15

court held that the government’s reliance on these earlier crimes “stretches the

analogical reasoning prescribed by Bruen and Rahimi too far.” Id. at 314.

Second, the court agreed with the government’s argument that drugtrafficking convictions show that a person “is the sort of dangerous individual that

legislatures have long disarmed.” Id. The court held that the “Second Amendment

allows Congress to disarm classes of people it reasonably deems dangerous” and that

this tradition “accords with (g)(1)’s rationale for disarming” individuals like

Mr. Kimble. Id. at 314-17. Deviating from Bruen’s historical focus, the court also

emphasized that “the Legislative, Executive, and Judicial Branches agree that drug

trafficking is an inherently dangerous activity.” Id. at 317. Thus, the court held that

§ 922(g)(1) is constitutional as applied to defendants like Mr. Kimble because his

“convictions for drug trafficking convey that he belongs to a class of dangerous felons

that our regulatory tradition permits legislatures to disarm.” Id. at 318.

Applying Kimble in Petitioner’s case, Fifth Circuit affirmed his conviction

because “[h]is challenge fails under controlling Fifth Circuit precedent. See United

States v. Kimble, 142 F.4th 308, 318 (5th Cir. 2025).” App. 1a. Notably, the Fifth

Circuit later held that § 922(g)(1) is unconstitutional as applied to individuals with

prior felony convictions for drug possession. See United States v. Hembree, _ F.4th _,

2026 WL 217125 (5th Cir. Jan. 27, 2026). Thus, under Fifth Circuit precedent,

Petitioner’s prior drug trafficking offenses—which he committed more than 20 years

before possessing the firearms in this case—permanently barred him from possessing

a firearm, while his prior drug possession convictions did not.

16

REASONS FOR GRANTING THE PETITION

I.

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

fundamental constitutional right.

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

Amendment challenges to § 922(g)(1). Some circuits see no need to conduct the textand-history analysis required by Bruen, relying instead on this Court’s dicta that felonin-possession prohibitions are presumptively lawful. Others apply Bruen’s text-andhistory framework but reach dramatically different results, disagreeing about which

historical traditions justify § 922(g)(1), whether the statute is vulnerable to as-applied

challenges, and (if so) how to analyze those challenges.

Several circuits have found § 922(g)(1) constitutional with no need for felony-byfelony litigation, but for drastically different reasons. The Fourth, Tenth, and Eleventh

Circuits have upheld § 922(g)(1) in all of its applications without conducting Bruen’s

text-and-history test. These courts have all concluded that they remained bound by

their pre-Bruen precedent which, in turn, foreclosed as-applied challenges to

§ 922(g)(1) based on Heller’s statement that prohibitions on the possession of firearms

by felons are “presumptively lawful.” See United States v. Hunt, 123 F.4th 697, 702–04

(4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025); Vincent v. Bondi, 127 F.4th 1263,

1265 (10th Cir. 2025), pet. for cert. pending, No. 24-1155 (U.S.); United States v. Dubois,

139 F.4th 887, 893 (11th Cir. 2025).

The Second, Eighth, and Ninth Circuits—as well as the Fourth Circuit as an

alternative rationale—have upheld § 922(g)(1) across the board based on a historical

analysis. See Zherka v. Bondi, 140 F.4th 68, 78–79 (2d Cir. 2025), cert. denied, No. 25-

17

269 (U.S. Jan. 20, 2026); United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024),

cert. denied, 145 S. Ct. 2708 (2025); United States v. Duarte, 137 F.4th 743, 761–62 (9th

Cir. 2024) (en banc); see also Hunt, 123 F.4th at 705–08. These courts relied on

historical laws categorically disarming groups who were “not law-abiding” or

“presented an unacceptable risk of danger if armed” to justify § 922(g)(1) in all of its

applications. See, e.g., Jackson, 110 F.4th at 1126–28.

By contrast, the Third, Fifth, and Sixth Circuits have each conducted a historical

analysis and concluded that § 922(g)(1) is vulnerable to as-applied challenges. 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). In doing so, the court rejected

the government’s reliance on status-based restrictions, emphasizing that founding-era

laws disarmed distrusted groups—like loyalists, Native Americans, religious

minorities, and Black Americans—based on fear of rebellion. Id. at 229–30. The court

also rejected the government’s reliance on capital punishment and estate 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.

The Sixth Circuit allows as-applied challenges to § 922(g)(1) by individuals who

show that they are “not dangerous.” United States v. Williams, 113 F.4th 637, 657, 663

(6th Cir. 2024). Although the court found historical support for disarming

18

“presumptively dangerous” groups who posed a threat to public order—like religious

minorities, Native Americans, loyalists, and freedmen—it explained that these laws

also allowed individuals to show that they posed no danger. Id. at 657. Therefore, 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 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 Fifth Circuit’s decision in Kimble—which foreclosed Petitioner’s challenge—

underscores the deep divisions between the courts of appeals. Unlike the Fourth,

Tenth, and Eleventh Circuits—which have held that they remain bound by their

pre-Bruen precedent—the Fifth Circuit agrees that Bruen rendered prior

precedent obsolete and therefore allows as-applied challenges. United States v.

Diaz, 116 F.4th 458, 466 (5th Cir. 2024). The Fifth Circuit’s as-applied analysis,

however, conflicts with how the Third and Sixth Circuits evaluate as-applied

challenges in at least two ways.

First, the Fifth Circuit reasons that individuals can be disarmed if their

predicates “were subject to the death penalty” at the founding. Id. at 311. This

conflicts with the Third Circuit’s rejection of capital punishment as an analogue for

the felon-in-possession statute. Range, 124 F.4th at 230–31. Second, the Fifth Circuit

holds that “those who have been convicted of violent offenses” can be disarmed under

§ 922(g)(1), but its analysis differs from the Third and Sixth Circuits’ analysis.

19

Kimble, 142 F.4th at 312. Those courts require an individualized assessment of

dangerousness that considers a defendant’s entire criminal record, not just the

underlying felony. Williams, 113 F.4th at 663; Pitsilides v. Barr, 128 F.4th 203, 211

(3d Cir. 2025). The Fifth Circuit, however, has concluded that it is limited to

categorically analyzing only the defendant’s prior felony convictions, i.e., those

convictions that triggered § 922(g)(1). Kimble, 142 F.4th at 312.

*

*

*

In sum, 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.

Fifth Circuit caselaw on this question is wrong and conflicts with

this Court’s precedent.

Kimble correctly noted that, under the plain text of the Second Amendment,

“convicted felons are unequivocally among ‘the people’ protected by the Second

Amendment.” Kimble, 142 F.4th at 311 (cleaned up). 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 otherwise 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

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facially, and why it burdens the right to bear arms dooms the statute as applied to

non-violent offenders like Petitioner.

A.

Section 922(g)(1) is facially unconstitutional because it imposes

an unprecedented lifetime ban on firearm possession.

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 never cited

a single historical gun law that imposed a permanent prohibition on the right to keep

and bear arms—even for self-defense. In other words, no historical regulation

“impose[s] a comparable burden on the right of armed self-defense.” See Bruen, 597

U.S. at 29.

That is hardly surprising. When Congress passed the modern felon-inpossession statute—four decades before Heller and more than a half-century before

Bruen—it did not believe that the Second Amendment protected an individual right to

keep and bear arms. Therefore, Congress did not try to pass a law that aligned with

the “Nation’s historical tradition of firearm regulation”—it didn’t think it had too. See

Bruen, 597 U.S. Instead, Congress 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.

In at least some cases, the Fifth Circuit has recognized that § 922(g)(1)’s

permanent disarmament requires a historical analogue that also had a permanent

effect. For example, in Diaz, the court recognizes that § 922(g)(1) imposes “permanent

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disarmament” and reasoned that capital punishment was a proper analogue because

it is “obviously permanent.” 116 F.4th at 469. In Kimble, by contrast, the court never

cited any historical firearm regulation—or any historical law for that matter—that

justified permanent disarmament of individuals convicted of what the court deemed

“an inherently dangerous activity.” Kimble, 142 F.4th at 316. Under either the Diaz

or Kimble standard, there is no tradition of permanent disarmament justifying

§ 922(g)(1).

Starting with the Diaz standard, the Fifth Circuit’s acceptance of capital

punishment as a historical analogue justifying permanent disarmament conflicts

with this Court’s precedent in two ways.

First, this Court requires the government to show that a modern gun law aligns

with our “historical tradition of firearm regulation.” Bruen, 597 U.S. at 24 (emphasis

added); Rahimi, 602 U.S. at 691 (same). In other words, the government’s historical

analogues must regulate firearms. In Rahimi, this Court relied only on historical laws

that “specifically addressed firearms violence.” 602 U.S. at 694–95. So too in Bruen.

597 U.S. at 38–66. Capital punishment, however, is not a firearm regulation, and

therefore cannot justify § 922(g)(1). The Fifth Circuit has reached a contrary

conclusion by misreading Rahimi.

The Fifth Circuit asserted that Rahimi “consider[ed] several historical laws

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

otherwise. In Rahimi, this Court relied on two historical legal regimes—surety laws

and going armed laws—that both “specifically addressed firearms violence.” 602 U.S.

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at 694–95. To be sure, surety laws were not “passed solely for the purpose of

regulating firearm possession or use.” Diaz, 116 F.4th at 468. But this Court

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

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

laws that did not target the misuse of firearms—like capital punishment and estate

forfeiture—are not proper analogues.

The Fifth Circuit also noted in Diaz 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 did not

target gun violence.

Second, this Court has also emphasized that the right to bear arms “is not a

second-class right, subject to an entirely different body of rules than the other Bill of

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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.

Turning to the Kimble standard, the Fifth Circuit has not articulated any

tradition of permanently disarming individuals “whose past criminal conduct evinces

a special danger of misusing firearms.” Kimble, 142 F.4th at 314. Indeed, the court’s

analysis in Kimble never cites a single permanent or lifetime ban on firearm use. The

court noted that “[g]overnments in England and colonial America long disarmed

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groups they deemed to be dangerous.” Id. at 315 (quoting Williams, 113 F.4th at 657).

Even assuming this “dangerousness” theory could justify § 922(g)(1), the court in

Kimble never grappled with the fact that these historical categorical deprivations

were not permanent. Rather, they gave individuals “a reasonable opportunity to prove

that they don’t fit the class-wide generalization.” Williams, 113 F.4th at 661. Section

922(g)(1), by contrast, imposes a categorical restriction with no opportunity to regain

the right to keep and bear arms. 1

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

convicted of non-violent offenses.

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

Amendment as applied to individuals, like Petitioner, with non-violent felony

1 The government has recently reestablished an administrative process for restoring

firearm rights authorized in 18 U.S.C. § 925(c). See Withdrawing the Attorney General’s

Delegation of Authority, 90 Fed. Reg. 13,080 (Mar. 20, 2025) (explaining that the Department

of Justice “anticipates future actions, including rulemaking consistent with applicable law,

to give full effect to 18 U.S.C. 925(c)”). But § 925(c) is irrelevant here for a simple reason: it

was unavailable to Petitioner. Beginning in 1992 and continuing until after his convictions

in this case, § 925(c) was “inoperative” because Congress prohibited using appropriated funds

to investigate or act on relief applications. Logan v. United States, 552 U.S. 23, 28 n.1 (2007).

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convictions. The government has not cited a tradition of disarming such individuals.

The government’s historical evidence shows—at most—a tradition of disarming

violent individuals who threaten armed insurrection or threaten the physical safety

of others. See Kanter, 919 F.3d at 454 (Barrett, J., dissenting) (explaining that

historical evidence shows “that the legislature may disarm those who have

demonstrated a proclivity for violence or whose possession of guns would otherwise

threaten the public safety”). Thus, the statute is unconstitutional as applied to

persons like Petitioner, who were convicted of non-violent felony drug offenses.

Again, Congress was not concerned with the Second Amendment—much less

the country’s history of firearm regulation—when it expanded federal law to prohibit

all non-violent felons from possessing firearms in the 1960s. Instead, Congress was

concerned with “keeping firearms out of the hands of categories of potentially

irresponsible persons, including convicted felons.” Barrett, 423 U.S. at 220. Of course,

this Court recently rejected—unanimously and resoundingly—the government’s

argument that someone “may be disarmed simply because he is not ‘responsible.’”

Rahimi, 602 U.S. at 701.

Before Kimble, the Fifth Circuit held that history supported disarming

individuals convicted of “violent crimes.” See, e.g., United States v. Schnur, 132 F.4th

863, 867–70 (5th Cir. 2025) (aggravated battery causing great bodily injury); United

States v. Bullock, 123 F.4th 183, 185 (5th Cir. 2024) (manslaughter and aggravated

assault); United States v. Isaac, 2024 WL 4835243, at *1 (5th Cir. Nov. 20, 2024)

(aggravated assault with a deadly weapon). At least as to the “why,” disarming

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individuals convicted of violent conduct is justified by the going-armed laws discussed

at length in Rahimi, which “mitigate[d] demonstrated threats of physical violence.”

Schnur, 132 F.4th at 870 (quoting Rahimi, 602 U.S. at 697). The Fifth Circuit has also

considered whether there was a historical tradition of disarming “dangerous”

individuals. It found that there was such a tradition but that it was limited to

disarming “political traitors” and “potential insurrectionists.” United States v.

Connelly, 117 F.4th 269, 278 (5th Cir. 2024).

In Kimble, however, the Fifth Circuit broadly held that § 922(g)(1) was

constitutional as applied to people like Mr. Kimble (and, by extension, Petitioner)

even though there is no evidence that they pose a demonstrated threat of physical

violence, were convicted of an offense that involved violence, or are political traitors

or potential insurrectionists. Rather, the court held that Mr. Kimble (and, by

extension, Petitioner) could be disarmed because “Congress today regards felon drug

traffickers as too dangerous to trust with weapons” and drug trafficking is “an

inherently dangerous activity.” Kimble, 142 F.4th at 316. But this Court has already

rejected this sweeping “dangerousness” theory.

In Rahimi, the government argued that Congress may disarm individuals who

are not “responsible.” Gov’t Br. 27–28, United States v. Rahimi, No. 22-915 (U.S. Aug.

14, 2023). And, according to the government, “a person is not ‘responsible’ if his

possession of a firearm would pose a danger of harm to himself or others.” Id.; see id.

at 29 (“[A] person is not responsible and thus may be disarmed if his possession of a

firearm would endanger himself or others.”). At oral argument, the government

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confirmed that it was using “‘responsible’ as a placeholder for dangerous.” Tr. of Oral

Arg. 10–12, United States v. Rahimi, No. 22-915 (U.S. Nov. 7, 2023).

This Court unanimously rejected that theory. Rahimi, 602 U.S. at 701–02; id. at

772–73 (Thomas, J., dissenting) (“The Government … argues that the Second

Amendment allows Congress to disarm anyone who is not ‘responsible’ …. Not a single

Member of the Court adopts the Government’s theory.”). The Court stated that

“responsible” is a “vague term” and it is “unclear what such a rule would entail.” Id. at

701 (majority opinion). And by deeming the term “responsible” vague, the Court

necessarily rejected the government’s proposed definition: that irresponsible means

dangerous. See, e.g., Tr. of Oral Arg. 10–12, Rahimi, supra (No. 22-915). So Rahimi is

directly at odds with the Fifth Circuit’s determination that Congress can disarm

anyone it deems dangerous.

Indeed, the Fifth Circuit’s standard—whether “Congress today regards [a

group] as too dangerous to trust with weapons,” Kimble, 142 F.4th at 314-15—would

simply be a return to the kind of “judicial deference to legislative interest balancing”

that this Court rejected in Bruen. 597 U.S. at 26. As the Third Circuit has recognized,

a generic “dangerousness” standard is “far too broad” and “operates at such a high level

of generality that it waters down the right.” Range, 124 F.4th at 230 (quoting Bruen,

597 U.S. at 31 (first quote); Rahimi, 602 U.S. at 740 (Barrett, J., concurring) (second

quote)).

In short, “our Nation’s tradition of firearm regulation distinguishes citizens

who have been found to pose a credible threat to the physical safety of others from

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those who have not.” Rahimi, 602 U.S. at 700. Petitioner’s prior convictions for nonviolent drug offenses do not establish that he poses a credible threat to the physical

safety of others. Thus, at the very least, § 922(g)(1) violates the Second Amendment

as applied to non-violent offenders like Petitioner.

III.

This is a critically important and recurring question.

The Court should grant the petition because the question presented 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. 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 Felonin-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 non-violent offenses. Less

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

29

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

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

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

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

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

millions of non-violent Americans it permanently 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

For the foregoing reasons, Petitioner respectfully asks the Court to grant this

petition for a writ of certiorari. In the alternative, if the Court grants certiorari in

another case challenging the constitutionality of 18 U.S.C. § 922(g)(1), this petition

should be held pending resolution of that case.

Alternatively, the Court should hold this petition pending resolution of United

States v. Hemani, No. 24-1234 (set for argument March 2, 2026). The Court granted

certiorari in Hemani and will address the constitutionality of 18 U.S.C. § 922(g)(3),

which prohibits unlawful drug users from possessing firearms. Considering the

similarity of the issues, the Court should hold this petition pending resolution of

Hemani if it does not grant certiorari in this (or another § 922(g)(1)) case.

Respectfully submitted,

CLAUDE J. KELLY

FEDERAL PUBLIC DEFENDER

EASTERN DISTRICT OF LOUISIANA

/s/ Samantha Kuhn

SAMANTHA J. KUHN

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel of Record

STEVEN E. SPIRES

RESEARCH AND WRITING ATTORNEY

500 Poydras Street, Suite 318

Hale Boggs Federal Building

New Orleans, Louisiana 70130

(504) 589-7930

samantha_kuhn@fd.org

FEBRUARY 2026

Counsel for Petitioner

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