Petition for Writ of Certiorari — Michael Thomas McCowan, Petitioner v. United States
Supreme Court briefFeb 3, 2026
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No.
——————
MICHAEL THOMAS MCCOWAN, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.
——————
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
——————
PETITION FOR A WRIT OF CERTIORARI
——————
SHANNON W. LOCKE
The Locke Law Group
15600 San Pedro Avenue
Suite 105
San Antonio, Texas 78232
210.229.8300 (Tel)
214.229.8301 (Fax)
Texas State Bar No. 24048623
Counsel for Petitioner
i
QUESTION PRESENTED
Whether 18 U.S.C. § 922(g)(1), the federal statute that prohibits
anyone who has been convicted of “a crime punishable by imprisonment
for a term exceeding one year” from possessing a firearm, violates the
Second Amendment either facially or as applied to individuals with prior
convictions for offenses that did not result in disarmament in the
Founding era.
ii
RELATED PROCEEDINGS
United States District Court for the Western District of Texas:
United States v. Michael Thomas McCowan, No. 7:23-cr-00174-DC-1
(June 13, 2024)
United States Court of Appeals for the Fifth Circuit:
United States v. Michael Thomas McCowan, No. 24-50202 (October
6, 2025)
iii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................................................ i
RELATED PROCEEDINGS ..................................................................... ii
INTRODUCTION ..................................................................................... 1
OPINION BELOW .................................................................................... 5
JURISDICTION ........................................................................................ 5
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .. 5
STATEMENT ............................................................................................ 6
A. Legal Background. ........................................................................ 6
B. Proceedings Below. ..................................................................... 10
REASONS FOR GRANTING THE PETITION ..................................... 15
I. The courts of appeals are deeply divided over the scope of a
fundamental constitutional right. .................................................... 15
II.
The decision below is wrong and conflicts with this Court’s
precedent. ........................................................................................... 25
A. Section 922(g)(1) is facially unconstitutional because it imposes
an unprecedented lifetime ban on firearm possession. ................... 26
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................................................ 32
III.
This is a critically important and recurring question. .......... 37
IV.
This case is an ideal vehicle for addressing this question. ... 39
CONCLUSION ........................................................................................ 39
iv
APPENDIX
Court of appeals opinion (October 6, 2025) ........................................... 1a
v
TABLE OF AUTHORITIES
Cases
Binderup v. Attorney General,
836 F.3d 336 (3d Cir. 2016) (en banc) ................................................ 9
District of Columbia v. Heller,
554 U.S. 570 (2008) .........................1, 4, 7, 8, 9, 15, 22, 23, 24, 26, 27
Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019) ............................................... 6, 8, 31, 33
Lewis v. United States,
445 U.S. 55 (1980) ......................................................................... 7, 26
McDonald v. City of Chi.,
561 U.S. 742, (2010) .......................................................................... 16
NYSRPA v. Bruen,
597 U.S. 1 (2022) ..1, 2, 4, 9, 10, 12, 15, 16, 20, 21, 22, 23, 24, 26, 27,
30, 31, 33, 36
Range v. Attorney General,
124 F.4th 218 (3d Cir. 2024) (en banc)............................................. 17
Rehaif v. United States,
588 U.S. 225 (2019) ........................................................................... 37
TikTok v. Garland,
145 S. Ct. 57 (2025) ........................................................................... 34
United States v. Bullock,
123 F.4th 183 (5th Cir. 2024) ..................................................... 25, 27
United States v. Contreras,
No. 24-50370, 2025 U.S. App. LEXIS 17752 (5th Cir. 2025) (per
curiam) (unpublished)........................................................................ 4
vi
United States v. Contreras,
No. 25-5909, 2026 U.S. LEXIS 481 (2026) ........................................ 5
United States v. Contreras,
125 F.4th 725 (5th Cir. 2025) ........................................................... 25
United States v. Diaz,
116 F.4th 458 (5th Cir. 2024) 3, 12, 13, 14, 23, 24, 25, 27, 28, 29, 30,
31, 32, 36
United States v. Dubois,
139 F.4th 887 (11th Cir. 2025) ......................................................... 23
United States v. Duarte,
101 F.4th 657 (9th Cir. 2024),
reh’g en banc granted, opinion vacated,
08 F.4th 786 (9th Cir. 2024) ............................................................ 21
United States v. Duarte,
137 F.4th 743 (9th Cir. 2025) (en banc) ..................................... 21, 22
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) ............................................................. 20
United States v. Giglio,
126 F.4th 1039 (5th Cir. 2025) ......................................... 3, 13, 14, 25
United States v. Goins,
118 F.4th 794 (6th Cir. 2024) ........................................................... 19
United States v. Grace,
461 U.S. 171 (1983) ........................................................................... 35
vii
United States v. Hunt,
123 F.4th 697 (4th Cir. 2024) ..................................................... 18, 19
United States v. Jackson,
110 F.4th 1120 (8th Cir. 2024) ................................................... 20, 21
United States v. Miller,
307 U.S. 174 (1939) ............................................................................. 7
United States v. Moore,
111 F.4th 266 (3d Cir. 2024) ............................................ 9, 13, 18, 19
United States v. Rahimi,
602 U.S. 680 (2024) 3, 9, 10, 12, 13, 14, 21, 24, 26, 28, 29, 30, 31, 33,
34
United States v. Salerno,
481 U.S. 739 (1987) ........................................................................... 32
United States v. Williams,
113 F.4th 637 (6th Cir. 2024) ............................................... 19, 30, 31
Vincent v. Bondi,
127 F.4th 1263 (10th Cir. 2025) ....................................................... 22
Williams v. Illinois,
399 U.S. 235 (1970) ........................................................................... 34
Zherka v. Bondi,
140 F.4th 68 (2d Cir. 2025) ............................................................... 16
Constitutional Provisions
Second Amendment,
U.S. Const. amend. II ................... i, 1, 4, 5, 6, 7, 8, 22, 23, 24, 26, 38
Statutes
18 U.S.C. § 922(g)(1) .... i, 2, 3, 4, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20,
21, 22, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 37, 38, 39
viii
18 U.S.C. § 922(g)(8) ..................................................................... 3, 30, 34
28 U.S.C. § 1254 ........................................................................................ 5
Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65 ............................ 28
Federal Firearms Act, ch. 850, § 2(f), 52 Stat. 1250, 1251 (1938) .......... 6
Other Authorities
Dep’t of Justice, Bureau of Justice Statistics,
Mark A. Motivans,
Federal Justice Statistics, 2022 (Jan. 2024) .................................. 38
Dep’t of Justice, Bureau of Justice Statistics,
Sean Rosenmerkel et al.,
Felony Sentences in State Courts,
2006—Statistical Tables (rev. Nov. 2010)........................................ 38
Federal Firearms Act: Hearings Before the Subcomm. To Investigate
Juvenile Delinq. of the Sen. Comm. on the Judiciary,
89th Cong. 41 (1965) ........................................................................... 6
Preyer, Kathryn,
Crime and Reform in Post-Revolutionary Virginia,
1 LAW & HIST. REV. 53, 73 (1983) ...................................................... 28
Stevenson, Dru,
In Defense of Felon-in-Possession Laws,
43 CARDOZO L. REV. 1573 (2022) ...................................................... 38
U.S. Sent’g Comm’n,
Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses (June 2024) .... 38
Winkler, Adam,
Heller’s Catch-22,
56 UCLA L. REV. 1551 (2009) .............................................................. 6
——————
MICHAEL THOMAS MCCOWAN, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.
——————
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
——————
PETITION FOR A WRIT OF CERTIORARI
——————
Petitioner Michael Thomas McCowan 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 landmark decisions in District of Columbia v. Heller and
New York State Rifle & Pistol Association, Inc. v. Bruen represented a
break from past in Second Amendment jurisprudence—establishing an
1
individual’s right to bear arms and requiring that contemporary gunregulations be evaluated against historical analogues in assessing their
constitutionality.
In this post-Bruen world, the modern gun regulation 18 U.S.C.
§ 922(g)(1)—a lifelong firearm ban administered against all convicted
felons—has faced consistent scrutiny in lower courts, but without a
consensus as to how to treat prosecutions under the law among the
circuits. This circuit-split is intractable and requires this Court’s
intervention to resolve.
A summary of lower courts’ perspectives on § 922(g)(1) reveals the
extent of the disagreement. The Third Circuit, en banc, held that
§ 922(g)(1) was unconstitutional as applied to an individual with a
nonviolent predicate conviction. A Ninth Circuit panel 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 depending on the case. 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 of the law was required.
2
This Court’s decision in Rahimi—which addressed § 922(g)(8), a
firearm restriction concerning individuals subject to domestic-violence
restraining
orders—did
not
help
lower
courts
resolve
their
disagreements on felon-in-possession laws. Since Rahimi, the Third,
Fifth, and Sixth Circuits maintain that § 922(g)(1) is vulnerable to asapplied challenges. The Eighth Circuit, however, has reaffirmed its
conclusion that history supports applying § 922(g)(1) across the board,
with no need for felony-by-felony analysis. The Tenth and Eleventh
Circuits continue to uphold the statute in all applications based on dicta
from this Court. 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 Ninth Circuit (en
banc), as well as the Second Circuit, has held that there is a history of
disarming certain classes of individuals that supports applying
§ 922(g)(1) to all felons.
The Fifth Circuit’s decision below—affirming McCowan’s conviction
based on circuit precedent in United States v. Diaz, 116 F.4th 458 (5th
Cir. 2024) and United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025)—
continues to deepen the conflict among the various circuit courts of
appeal. It is also wrong on multiple levels. § 922(g)(1)—codified in a pre3
Bruen, pre-Heller legal landscape (before an individual’s right to bear
arms had been evaluated in caselaw)—represents a lifetime prohibition
on bearing arms for all felons. There is no historical precedent in our
tradition for permanent disarmament, or against such a broad and
variegated group of individuals. At most, our historical tradition
imagines regulations of disarming violent individuals who threaten
armed insurrections or pose a present physical threat to others. So, at
the very least, § 922(g)(1) is unconstitutional as applied to individuals
like McCowan who were previously convicted of not-recent crimes and/or
crimes that do not establish a present threat of violence. Furthermore,
the Fifth Circuit’s decision below flouts the plain text of § 922(g)(1),
which disarms individuals based on a prior conviction, not based on their
status as a probationer.
This Court’s intervention is urgently needed to decide the scope of a
fundamental right, and this case is an ideal vehicle to resolve it. The
Court should grant certiorari.1
1 The fact pattern in this case resembles that of United States v. Contreras,
No. 24-50370, 2025 U.S. App. LEXIS 17752 (5th Cir. 2025) (per curiam)
(unpublished), cert. denied, No. 25-5909, 2026 U.S. LEXIS 481 (2026), and
therefore many of the arguments presented in that petition for certiorari are
4
OPINION BELOW
A copy of the unpublished opinion of the court of appeals, United
States v. Michael Thomas McCowan, No. 24-50202 (October 6, 2025), is
reproduced at App. 1a–2a.
JURISDICTION
The opinion and judgment of the United States Court of Appeals for
the Fifth Circuit were entered on October 6, 2025. On December 23,
2025, Justice Samuel Alito extended the time to petition for a writ of
certiorari to February 3, 2026. 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
used here as well. See Contreras v. United States, No. 25-5909, 2026 U.S.
LEXIS 481 (2026).
5
of, a crime punishable by imprisonment for a term exceeding one year
… to … possess in or affecting commerce, any firearm or ammunition.”
STATEMENT
A. Legal Background.
1.
“Founding-era legislatures did not strip felons of the right to
bear arms simply because of their status as felons.” Kanter v. Barr, 919
F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting). Indeed, “[b]ans on
ex-felons possessing firearms were first adopted in the 1920s and 1930s,
almost a century and a half after the Founding.” Adam Winkler, Heller’s
Catch-22, 56 UCLA L. REV. 1551, 1563 (2009), see Federal Firearms Act,
ch. 850, § 2(f), 52 Stat. 1250, 1251 (1938).
2.
In the 1960s (when Congress passed the current version of the
felon-in-possession statute), legislators 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
6
Subcomm. to Investigate Juvenile Delinq. of the Sen. Comm. on the
Judiciary, 89th Cong. 41 (1965) (relying on decisions such as 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 employed an
“expansive legislative approach” to pass a “sweeping prophylaxis …
against misuse of firearms.” Lewis v. United States, 445 U.S. 55, 61, 63
(1980).
3.
In its seminal decision in District of Columbia v. Heller,
however, 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.
4.
Still,
relying
on
the
historical
understanding
of
the
Amendment, the Court recognized that “the right secured by the Second
Amendment is not unlimited.” Id. at 626. The Court identified several
7
“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.
5.
Following Heller, the courts of appeals coalesced around a
twostep framework for analyzing Second Amendment challenges that
focused on the historical scope of the Second Amendment at step one and
applied means-ends scrutiny at step two. See, e.g., Kanter, 919 F.3d at
441–42; United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017).
And this Court’s recognition that the Second Amendment protects an
individual right 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 means8
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).
6.
Then came Bruen. In Bruen, this Court held that the twostep
framework adopted by the courts of appeals was “one step too many.”
597 U.S. at 19. Instead, the Court explained that Heller demanded a test
“centered on constitutional text and history.” Id. at 22. Under this test,
“when the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct.” Id. at
17. “The government must then justify its regulation by demonstrating
that it is consistent with the Nation’s historical tradition of firearm
regulation.” Id. at 24. “Only then may a court conclude that the
individual’s conduct falls outside the Second Amendment’s unqualified
command.” Id. (cleaned up). Bruen—and the Court’s later decision in
Rahimi—explain that “the appropriate analysis involves considering
9
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.
On September 26, 2023, a U.S. probation officer (accompanied
by a Midland, Texas police officer) conducted a house visit of his
supervisee McCowan. The probation officer observed a firearm in plain
view in McCowan’s residence, and the officer knew McCowan to be a
10
convicted felon and thus prohibited from lawfully possessing firearms.
The probation officer and accompanying officers also believed McCowan
to be under the influence “of a substance,” and reported that the house
smelled “like marijuana.”
2.
A subsequent search warrant for the residence led to the
seizure of 23.64 grams of M30 pills (Fentanyl), 37.29 grams of suspected
fake Xanax pills (Fentanyl), 5.92 grams of marijuana, 0.68 grams of
suspected methamphetamine, and a bottle of Promethazine, as well as
the pistol that had been observed in plain view.
3.
A criminal complaint was filed in this case, charging McCowan
with a violation of § 922(g)(1), stating that McCowan was in possession
of a firearm and had previously been convicted on a separate felon-inpossession charge on November 17, 2017. An indictment followed.
4.
McCowan moved to dismiss the indictment arguing that
§ 922(g)(1) was unconstitutional both facially and as applied to
defendants with criminal histories like McCowan’s. The Government’s
response to the motion to dismiss argued that felons fell outside of the
“people” covered by the Second Amendment; that there was a history of
firearm regulations akin to § 922(g)(1); and that McCowan’s full
criminal history—which included prior felonies of burglary, theft of
11
property, tampering with a witness in a felony prosecution, and
unlawful possession of firearm—justified his disarmament.
5.
The district court denied McCowan’s motion to dismiss, citing
its orders in other cases upholding the constitutionality of § 922(g)(1).
6.
McCowan pleaded guilty to the indictment. On the prior
conviction element, the factual basis for his guilty plea said that
McCowan had been previously convicted of the felony offense of “felon in
possession of firearm” in 2017. The pre-sentence report detailed
McCowan’s other previous felony convictions: burglary and theft
convictions that occurred in 2007 when McCowan was 17 years old; a
tampering with witness conviction from 2012 when McCowan was 21
years old; and unlawful possession of firearm convictions from 2015 and
2017.
The district court ultimately sentenced McCowan to 51 months’
imprisonment, to be followed by 3 years’ supervised release.
7.
McCowan 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
United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied, 145 S.
Ct. 2822 (2025). Diaz, as the seminal Fifth Circuit case applying Bruen
12
and Rahimi’s analyses to § 922(g)(1), 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.
Also relevant to McCowan’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.
13
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.
McCowan acknowledged that, because of the circuit’s published
opinions Diaz and Giglio, his facial and as-applied challenges were both
foreclosed in the Fifth Circuit, but he made arguments in briefing to
preserve the issues for further review. McCowan argued that § 922(g)(1)
was facially unconstitutional because the Government had failed to
point to historically similar firearm regulations from the nation’s
founding tradition. In his as applied-challenge, McCowan argued that
any reliance on his status as a probationer to defend the application of
§ 922(g)(1) was not appropriate because it did not address “how” and
“why” McCowan was disarmed under the law (whose plain text punishes
former criminals purely based on the past convictions that existed on
their criminal records); none of the past convictions in McCowan’s
14
record—neither the prior felon-in-possession conviction contained
within the plea’s factual basis; nor the many-years-old other convictions
proffered within the pre-sentencing report (burglary and theft from
2007; witness tampering from 2012)—could serve has a suitable
predicate for permanent disarmament in a Bruen analysis.
The Government moved for summary affirmance based on
McCowan’s concessions. McCowan took no position on the motion. The
court of appeals granted the Government’s motion, agreeing with the
parties that McCowan’s facial and as-applied challenges were foreclosed
by Diaz and Giglio. App. 1a-2a.
REASONS FOR GRANTING THE PETITION
I.
The courts of appeals are deeply divided over the scope of
a fundamental constitutional right.
The courts of appeals are deeply divided over how to analyze Second
Amendment challenges to § 922(g)(1). Some circuits see no need to
conduct the text-and-history analysis required by Bruen, relying instead
on this Court’s dicta that felon-in-possession prohibitions are
presumptively lawful. Others apply Bruen’s 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
15
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.
16
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
17
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 per-son’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 law-abiding, not by felons.” Id. at 705. At the second step, the
court concluded that legislatures could categorically disarm groups from
18
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 begiven 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
19
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.4th843, 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
20
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 Ҥ 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
21
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.
24-1155 (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. at1264–65. 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.
22
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 preBruen 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 di-
visions between the courts of appeals. The Fifth Circuit splits with other
circuits on two preliminary questions.
a)
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
23
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.
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
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, 116F.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
2 The Fifth Circuit also 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.
24
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; Contreras, 125 F.4th at 732–33.
*
*
*
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.
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. 2a (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
25
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 and why § 922(g)(1) burdens the right to bear arms is fatal to the
statute facially, and as applied to offenders like McCowan. And the Fifth
Circuit’s conclusion that someone on probation can be disarmed under
§ 922(g)(1) is divorced from the plain text of the statute, which has
nothing to do with probation 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 selfdefense. 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
26
felon-in-possession statute—four decades before Heller and more than a
half-century before Bruen—it did not believe that the Second
Amendment protected an individual right to keep and bear arms. 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 forfeiture laws as historical analogues justifying
3 In its line of cases holding that § 922(g)(1) is constitutional as applied 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.
27
§ 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).
28
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
29
§ 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
30
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 34 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 postrevolutionary 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.
31
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
32
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.
McCowan
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 felony identified in McCowan’s
guilty plea—ie. a prior “felon in possession of firearm” charge—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
McCowan could constitutionally be disarmed. See Rahimi, 602 U.S. at
700– 02 (because the government charged Rahimi only with violating
33
§ 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
34
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 McCowan because
he possessed a firearm after having been convicted of a certain felony (or
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
35
§ 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.
4.
A proper Breun analysis of McCowan’s as-applied challenge
would focus on “how” and “why” the text of the statute operated against
McCowan: here, the statute punishes individuals specifically for any
past felony convictions in their criminal record, and strips them of their
right to bear arms indefinitely. The Fifth Circuit significantly erred in
choosing to analyze the constitutionality of § 922(g)(1) as applied to
McCowan based on factors outside the scope of the statute.
5.
If the Fifth Circuit were to review the past felony convictions
that were relied on to prosecute McCowan under § 922(g)(1), as
suggested by the court’s own framework in Diaz, there is reason to
believe that the court would have reversed McCowan’s lower-court
judgment. The only conviction presented within the factual basis for
McCowan’s plea was a prior “felon-in-possession” conviction, and this is
a class of felony that the Fifth Circuit has noted did not exist throughout
our nation’s history: “possessing a firearm as a felon—one of [the
appellant’s] three predicate convictions justifying the application of §
36
922(g)(1)—was not considered a crime until 1938 at the earliest.” Diaz,
116 F.4th at 468.
6.
McCowan’s other alleged convictions (burglary, theft, and
witness tampering), if they are to be considered in his as-applied
challenge (they were not included in the factual basis for his plea), were
more than 10 years old (and not evidencing a current proclivity for
violence). The age of these potential predicate convictions underscores
the unconstitutional permanence of the firearm ban that § 922(g)(1)
embodies.
6.
The Fifth Circuit relied on McCowan’s status as a probationer
to dismiss his as-applied challenge; at a minimum, this Court should
grant, vacate, and remand with instructions for the Fifth Circuit to
consider McCowan’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
37
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
38
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. McCowan 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.
/s/ Shannon Locke
SHANNON LOCKE
State Bar No. 24048623
15600 San Pedro Avenue, Suite 105
San Antonio, Texas 78232
Tel: 210-229-8300
Fax: 210-229-8301
Counsel for Petitioner
February 3, 2026
39
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.