Petition for Writ of Certiorari — Dijuan Taylor, Petitioner v. United States
Supreme Court briefApr 7, 2026
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No. _____
IN THE SUPREME COURT OF THE UNITED STATES
__________________________________________________________________
DIJUAN TAYLOR,
PETITIONER
v.
UNITED STATES OF AMERICA,
RESPONDENT
__________________________________________________________________
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Third Circuit
__________________________________________________________________
PETITION FOR WRIT OF CERTIORARI
__________________________________________________________________
ELISA A. LONG
Federal Public Defender
RENEE DOMENIQUE PIETROPAOLO
Counsel of Record
STACIE M. FAHSEL
JAKE D. MORRISON
Assistant Federal Public Defenders
FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
(412) 644-6565
renee_pietropaolo@fd.org
QUESTION PRESENTED
Whether courts should analyze as-applied Second Amendment challenges to
18 U.S.C. § 922(g)(1) by examining whether historical tradition supports banning
firearm possession by someone who has been convicted of the predicate disqualifying
offenses that are the basis of the individual’s disarmament under § 922(g)(1).
i
PARTIES TO THE PROCEEDINGS
Pursuant to this Court’s Rule 14.1(b)(i), petitioner submits that there are no
parties to the proceeding other than those named in the caption of the case. Petitioner
Dijuan Taylor was the defendant in the district court and appellant below.
Respondent United States of America was the plaintiff in the district court and
appellee below.
ii
STATEMENT OF RELATED PROCEEDINGS
This case arises from and is directly related to the following proceedings in
the U.S. District Court for the Western District of Pennsylvania and the U.S. Court
of Appeals for the Third Circuit:
United States v. Dijuan Taylor, No. 23-cr-91 (W.D. Pa.) (December 12, 2023);
United States v. Dijuan Taylor, No. 24-1993 (3d Cir.) (January 7, 2026).
iii
TABLE OF CONTENTS
Question Presented......................................................................................................... i
Parties to the Proceedings ............................................................................................. ii
Statement of Related Proceedings ............................................................................... iii
Table of Authorities ....................................................................................................... v
Opinions Below .............................................................................................................. 1
Jurisdiction .................................................................................................................... 1
Constitutional and Statutory Provisions Involved ....................................................... 1
Statement ....................................................................................................................... 2
Reasons for Granting the Petition ................................................................................ 8
I.
The Decision Below Defies This Court’s Precedents and Exacerbates
The Disarray In The Courts of Appeals ................................................ 10
A. The Decision Below Is Egregiously Wrong ...................................... 10
B. The Courts of Appeals Have Hopelessly Fractured Over How to
Address As-Applied Challenges to 18 U.S.C. § 922(g)(1) ............... 16
II.
The Question Presented Is Exceptionally Important, And This Case
Is An Effective Vehicle For This Court To Address It. ......................... 23
Conclusion .................................................................................................................... 26
Appendix A
Opinion, United States Court of Appeals for the Third Circuit, United
States v. Taylor, No. 24-1993 (January 7, 2026) ......................................App. 1a
Appendix B
Memorandum Opinion, United States District Court for the
Western District of Pennsylvania, United States v. Taylor,
No. 23-cr-91 (December 12, 2023) ...........................................................App. 3a
iv
TABLE OF AUTHORITIES
CASES:
City of Los Angeles v. Patel, 576 U.S. 409 (2015) ....................................................... 10
District of Columbia v. Heller, 554 U.S. 570 (2008) ........................................... 5, 8, 22
McDonald v. City of Chicago, 561 U.S. 742 (2010) ..................................................... 12
N.Y. State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022) ......................................................... 2, 3, 5-8, 10, 12, 14-16, 21-23
People v. Burns, 79 N.E.3d 159 (Ill. 2015) .................................................................. 11
Pitsilides v. Barr, 128 F.4th 203 (3d Cir. 2025) .......................................................... 16
TikTok v. Garland, 604 U.S. 56 (2025) ....................................................................... 13
United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) ................................................. 19
United States v. Duarte, 137 F.4th 743 (9th Cir. 2025) ............................................. 22
United States v. Dubois, 139 F.4th 887 (11th Cir. 2025) ........................................... 22
United States v. Eichman, 496 U.S. 310 (1990).......................................................... 11
United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025) ............................................. 20
United States v. Goins, 118 F.4th 794 (6th Cir. 2024) ............................................... 18
United States v. Grace, 461 U.S. 171 (1983) ............................................................... 11
United States v. Hostettler, No. 24-3403,
2026 WL 787913 (6th Cir. Mar. 20, 2026)........................................................ 18
United States v. Hunt, 123 F.4th 697 (4th Cir. 2024) ................................................ 21
United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024).................................... 21, 23
United States v. Jackson, 121 F.4th 656 (8th Cir. 2024)...................................... 22, 24
United States v. Moore, 111 F.4th 266 (3d Cir. 2024) .............................................. 7, 8
United States v. Morton, 123 F.4th 492 (6th Cir. 2024) ................................... 4, 23, 24
v
United States v. Price, 111 F.4th 392 (4th Cir. 2024)................................................. 12
United States v. Quailes,126 F.4th 215 (3d Cir. 2025) ............................................. 7, 8
United States v. Rahimi, 602 U.S. 680 (2024) ...................6, 8, 9, 10, 12, 13, 15, 21, 22
United States v. Raines, 362 U.S. 17 (1960) ............................................................... 12
United States v. Reese, 92 U.S. 214 (1875) ................................................................. 14
United States v. Williams, 113 F.4th 637 (6th Cir. 2024) .......................................... 19
Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025) ..................................................... 22
Williams v. Illinois, 399 U.S. 235 (1970) .................................................................... 11
Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025) ............................................................. 20
CONSTITUTION AND STATUTES:
U.S. Const. Amend. I ............................................................................................. 11, 13
U.S. Const. Amend. II ............................................................................ 1, 2, 4-19, 23-26
U.S. Const. Amend. IV................................................................................................. 10
18 U.S.C. § 922(g)(1) ................................................................................. 2-4, 6-9, 14-25
18 U.S.C. § 922(g)(3) .................................................................................................... 25
18 U.S.C. § 922(g)(8) .................................................................................................... 13
18 U.S.C. § 922(g)(8)(C)(i).............................................................................................. 6
18 U.S.C. § 922(k) ........................................................................................................ 12
18 U.S.C. § 3231 ............................................................................................................. 1
18 U.S.C. § 3742(a)(1) .................................................................................................... 1
28 U.S.C. § 1254(1) ........................................................................................................ 1
vi
28 U.S.C. § 1291 ............................................................................................................. 1
MISCELLANEOUS:
Sarah K.S. Shannon et al., The Growth, Scope, and Spatial Distribution of
People with Felony Records in the United States, 1948–2010,
54 Demography 1795, 1806 (2018), perma.cc/6TNR-NEFU ...................... 23-24
U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. §922(g) Firearms Offenses
(May 2025), perma.cc/2GZH-ADYB.................................................................. 23
vii
PETITION FOR WRIT OF CERTIORARI
Dijuan Taylor respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Third Circuit in this case.
OPINIONS BELOW
The opinion of the Court of Appeals for the Third Circuit is unreported but
available at United States v. Taylor, 2026 WL 49565 (3d Cir. 2026), and is reproduced
at App. 1a-2a. The judgment of the Court of Appeals was entered on January 7, 2026.
The district court’s opinion denying Mr. Taylor’s motion to dismiss the indictment is
reproduced at App. 3a-6a.
JURISDICTION
The district court had jurisdiction over this federal criminal case pursuant to
18 U.S.C. § 3231. The court of appeals had jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a)(1). The Third Circuit issued its opinion on January 7, 2026.
App. 1a. This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Second Amendment to the United States 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 of Title 18 of the United States Code provides:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
***
1
to ship or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
STATEMENT
It is a fundamental tenet of our judicial system that the government may not
obtain a conviction under an unconstitutional law. When an individual contends that
the statute under which he is charged is unconstitutional—whether on its face or as
applied—the government must show that the charged statute comports with the
Constitution.
That principle applies with full force in the Second Amendment
context. As this Court has explained at length, when the government regulates armsbearing conduct, it bears the burden of proving that its regulation is “consistent with
this Nation’s historical tradition of firearm regulation.” N.Y. State Rifle & Pistol
Ass’n v. Bruen, 597 U.S. 1, 17 (2022). Accordingly, when an individual argues that a
charged law violates the Second Amendment, a court must determine whether that
law (or the application of it at hand) is consistent with historical tradition.
The court of appeals’ approach flouts that bedrock principle. Dijuan Taylor
was convicted under 18 U.S.C. § 922(g)(1) of possessing a firearm after having two
state convictions for carrying a firearm without a license. Mr. Taylor challenged his
§ 922(g)(1) conviction under the Second Amendment, arguing that the government
cannot identify any historical tradition that supports permanently disarming
individuals based on prior convictions for carrying a firearm without a license. Yet
rather than resolve that question, the court of appeals relied on precedent that
2
addressed a different question entirely: whether the government may disarm
individuals while they are serving probation.
That methodology would make eminent sense if Mr. Taylor had challenged a
law barring possession of a firearm while on probation. But Mr. Taylor challenged
his conviction (and accompanying 36-month prison sentence) under § 922(g)(1) for
possessing a firearm after having been convicted of a felony.
Whether the
government may deprive people of firearms while they are on probation is entirely
beside the point.
Under a faithful application of Bruen’s methodology, the
government cannot justify the constitutionality of the firearm law it chose to charge
by showing that a hypothetical prosecution under a different (imagined) statute
would not violate the Second Amendment. To the contrary, such sleights of hand
have long been rejected by both this Court and others.
Even without Bruen, it should be obvious that the government cannot defend
an application of a criminal statute by arguing that it would have been constitutional
to deprive someone of their constitutional rights for a reason unrelated to the statute.
Section 922(g)(1) prohibited Mr. Taylor from possessing a firearm because he had
prior felony convictions. The government must show why that criminal prohibition—
not some other hypothetical criminal provision—is constitutional.
The court of
appeals’ decision affirming Mr. Taylor’s § 922(g)(1) conviction and sentence without
resolving the relevant question is gravely erroneous.
Unfortunately, the court of appeals’ approach is emblematic of the profound
confusion and division among the lower courts about how to analyze as-applied
3
challenges to § 922(g)(1). The court of appeals is not alone in holding that § 922(g)(1)
may constitutionally be applied to individuals who are on probation, parole, or
supervised release—even though that fact played no role in their § 922(g)(1) charge.
The Fifth and Sixth Circuits have embraced that approach too. Indeed, the Fifth
Circuit has done so even as it has (correctly) concluded in other contexts that
§ 922(g)(1) challenges must be resolved by examining whether historical tradition
supports disarming someone for the predicate offense(s) underlying the § 922(g)(1)
charge. Still other circuits have rejected as-applied challenges to § 922(g)(1) entirely,
on the theory that having been convicted of a felony is itself sufficient justification to
permanently deprive someone of Second Amendment rights, no matter what the prior
felony was.
The disarray in the courts of appeals necessitates this Court’s intervention.
Indeed, lower courts have recognized that “there is significant disagreement about”
how to analyze § 922(g)(1) challenges “that the Supreme Court should resolve.”
United States v. Morton, 123 F.4th 492, 498 n.2 (6th Cir. 2024). The Court should
grant certiorari and hold that, when addressing as-applied challenges to § 922(g)(1),
courts must ask whether historical tradition supports disarming people based on the
felony offense(s) underlying the § 922(g)(1) charge. At the very least, the Court
should grant, vacate, and remand with instructions for the court of appeals to decide
whether Mr. Taylor can constitutionally be convicted of the crime with which he was
actually charged.
4
A.
Legal Background
In its seminal decision in District of Columbia v. Heller, this Court held that
there is “no doubt … that the Second Amendment confer[s] an individual right to keep
and bear arms.” 554 U.S. 570, 595 (2008). While the Court acknowledged that the
right is not “unlimited,” it looked to historical restrictions on firearm possession to
inform its analysis of the constitutionality of the law at issue. Id. at 626-27, 631-34.
The Court left a full-throated exposition of that historical analysis for another day.
Over the next decade, lower courts “coalesced around a ‘two-step’ framework
for analyzing Second Amendment challenges that combines history with means-end
scrutiny.” Bruen, 597 U.S. at 17. But this Court ultimately rejected that approach
in Bruen, explaining that a “judge-empowering ‘interest-balancing inquiry’” would
not sufficiently safeguard individuals’ constitutional rights. Id. at 22. After all, as
Heller made clear, “[a] constitutional guarantee subject to future judges’ assessments
of its usefulness is no constitutional guarantee at all.” Id. at 23 (quoting Heller, 554
U.S. at 634). So the Court laid out a more robust constitutional framework steeped
in “the Nation’s historical tradition of firearm regulation.” Id. at 24. Under that
approach, if the regulated conduct is covered by the text of the Second Amendment,
then it is presumptively protected, and the burden shifts to the government to justify
its regulation.
Id.
To do so, the government must identify historical firearm
restrictions that are analogous to the modern challenged regulation in their “how and
why”—i.e., the “modern and historical regulations” must “impose a comparable
burden on the right of armed self-defense” that “is comparably justified.” Id. at 29.
5
In United States v. Rahimi, 602 U.S. 680 (2024), this Court provided additional
guidance on how to implement Bruen’s methodology. Rahimi reiterated that “the
appropriate analysis involves considering whether the challenged regulation is
consistent with the principles that underpin our regulatory tradition” as evidenced
by the government’s proffered historical analogues. Id. at 692. This Court clarified
that those analogues “need not be a ‘dead ringer’ or a ‘historical twin’” for the
challenged regulation. Id. But it reiterated that “[w]hy and how the [challenged]
regulation burdens the right are central” to the Second Amendment inquiry. Id. In
other words, the focus remains on whether the challenged regulation “impos[es]
similar restrictions for similar reasons.” Id. Applying that framework, this Court
held that § 922(g)(8)(C)(i) is constitutionally sound, as it is grounded in a historical
tradition of temporarily disarming individuals who have been found to pose “a
credible threat to the physical safety of another.” Id. at 702.
In short, as exemplified in Rahimi, Bruen tasks courts with conducting a
categorical comparison of the mechanics of the challenged provision and the
government’s historical analogues to assess whether the challenged law passes
constitutional muster.
B.
Factual Background
1.
On May 10, 2023, Dijuan Taylor was charged by indictment with one
count of possessing a firearm and ammunition after being convicted of a crime
punishable by more than one year of imprisonment, in violation of 18 U.S.C.
§ 922(g)(1). C.A. App. 21-22. The indictment identified two prior Pennsylvania
6
convictions as disqualifying Mr. Taylor from possessing a firearm under § 922(g)(1):
convictions in September 2020 and June 2022 for carrying a firearm without a license,
see 18 Pa. Cons. Stat. § 6106. C.A. App. 21.
2.
Mr. Taylor moved to dismiss the indictment. Relying on Bruen, Mr.
Taylor argued that 18 U.S.C. § 922(g)(1) violates the Second Amendment facially and
as applied to him. C.A. App. 23-40. In response, the government argued (among
other things) that Mr. Taylor’s Second Amendment challenge failed because, at the
time of the charged firearm possession, Mr. Taylor was serving state probation. C.A.
App. 45-51; see C.A. App. 144-46. After multiple rounds of briefing, the district court
denied Mr. Taylor’s motion to dismiss the indictment. App. 3a-6a. Mr. Taylor entered
a guilty plea, C.A. App. 141-42, and the district court sentenced him to 36 months of
imprisonment followed by three years of supervised release, C.A. App. 3-4.
3.
On appeal, Mr. Taylor raised as-applied and facial Second Amendment
challenges to § 922(g)(1). Because Mr. Taylor was on state probation at the time of
his firearm possession, Mr. Taylor acknowledged that his Second Amendment
challenges were foreclosed by the court of appeals’ precedent holding that § 922(g)(1)
is constitutional as applied to an individual serving a term of probation, parole, or
supervised release. See United States v. Quailes, 126 F.4th 215 (3d Cir. 2025), cert.
denied, 146 S. Ct. 127 (2025); United States v. Moore, 111 F.4th 266 (3d Cir. 2024),
cert. denied, 145 S. Ct. 2849 (2025). For preservation purposes, Mr. Taylor argued
that Quailes and Moore were wrongly decided. In addition, Mr. Taylor maintained
that § 922(g)(1) violates the Second Amendment as applied to him because the
7
government cannot show a historical tradition that supports banning firearm
possession by an individual who was previously convicted of possessing a firearm
without a license in violation of state law. C.A. Br. 6-11.
4.
The court of appeals affirmed. Relying on Quailes and Moore, supra, the
court held that § 922(g)(1) is constitutional as applied to Mr. Taylor because he was
serving state probation at the time of his firearm possession. App. 2a. In Moore and
Quailes, the court of appeals had held that § 922(g)(1) is consistent with the Second
Amendment as applied to individuals serving terms of supervised release, probation,
or parole. In so holding, the court of appeals relied on founding-era laws providing
for forfeiture of a person’s entire estate upon conviction of a felony and a historical
tradition of disarming “convicts” serving custodial sentences. Quailes, 126 F.4th at
221 & n.7; Moore, 111 F.4th at 269-71.
5.
This timely petition follows.
REASONS FOR GRANTING THE PETITION
The decision below is patently wrong.
Dijuan Taylor was convicted and
punished under § 922(g)(1) because he possessed a firearm after having two state
convictions for carrying a firearm without a license. Yet his § 922(g)(1) conviction
was affirmed because he was serving probation at the time of his firearm possession.
There is no other context in which the government may defend a conviction under a
law that criminalizes constitutionally protected behavior by arguing that it could
validly deprive the defendant of his constitutional rights for some other reason
entirely. And certainly nothing in Heller, Bruen, or Rahimi suggests that, when a
8
defendant argues that his conviction violates the Second Amendment, the inquiry
turns on whether there is any reason the individual could be punished for possessing
a firearm consistent with historical tradition. To the contrary, this Court’s cases and
bedrock principles make plain that the government must defend the challenged law
itself. The court of appeals failed to hold the government to that burden here.
The court of appeals is not alone in its approach. Multiple courts of appeals
have made the category mistake of letting the government avoid defending § 922(g)(1)
charges on their own terms by pointing to the fact that the individual was serving
probation, parole, or supervised release at the time of his firearm possession. Indeed,
even one circuit that typically does require the government to justify a § 922(g)(1)
conviction by focusing on the predicate convictions has inexplicably abandoned that
approach when it comes to individuals who were on supervised release when they
possessed a firearm. Other circuits have rejected as-applied challenges to § 922(g)(1)
altogether, on the theory that historical tradition supports disarming individuals who
have shown a disregard for the law, no matter what law they violated.
In short, although most circuits have squarely addressed as-applied challenges
to § 922(g)(1), they have hopelessly splintered on the basic question of how to analyze
them. That disarray readily warrants this Court’s attention. Indeed, lower courts
have implored this Court for further guidance even after Rahimi. And this is a
particularly good vehicle to answer the methodological question, as the Court would
have the option of answering only that question here should it prefer to do so. The
Court could simply resolve the analytical dispute over how to evaluate as applied
9
Second Amendment challenges that has fractured the lower courts and then remand
for the court of appeals to consider Mr. Taylor’s appeal under the proper framework.
But in all events, whether through plenary review or summary reversal, the Court
should not let the decision below stand, as Mr. Taylor is, at the very least, entitled to
a resolution of the constitutional question he actually raised—namely, whether the
government can send him to prison for 36 months because he possessed a firearm
after having two prior state convictions for carrying a firearm without a license.
I.
The Decision Below Defies This Court’s Precedents And
Exacerbates The Disarray In The Courts Of Appeals.
A.
The Decision Below Is Egregiously Wrong.
1.
There is no basis in law or logic to permit the government to defend the
constitutionality of a conviction by speculating that it could have reached the same
result via an entirely different statute (real or imagined). Indeed, that much should
have been clear even without Bruen or Rahimi. In the context of a facial challenge,
when assessing whether a statute is constitutional in any application, the Supreme
Court “has considered only applications of the [challenged] statute in which it
actually authorizes or prohibits conduct,” not circumstances that are “irrelevant” to
the challenged statute. Los Angeles v. Patel, 576 U.S. 409, 418 (2015). In Patel, the
City sought to defend the facial constitutionality of a statute authorizing certain
warrantless searches by arguing that the law comports with the Fourth Amendment
at least when applied to some searches, such as those resulting from exigencies or
consent. Id. at 417. The Supreme Court squarely rejected that argument, explaining
that the City’s asserted “constitutional ‘applications’” were “irrelevant” to the Court’s
10
analysis because “they do not involve actual applications of the statute.” Id. at 41719; see also Williams v. Illinois, 399 U.S. 235, 241-42 (1970) (granting relief to the
defendant after finding that the law the state enacted violated his equal protection
rights—even though the state could “have appropriately fixed the penalty, in the first
instance,” and incarcerated the defendant for greater than one year for the same
conduct).
Accordingly, a court cannot reject a Second Amendment challenge by
determining that a defendant’s conduct or circumstances make it possible to imagine
a law that could constitutionally disarm him.
As one court aptly put it, “[a]n
unconstitutional statute does not ‘become constitutional’ simply because it is applied
to a particular category of persons who could have been regulated, had the legislature
seen fit to do so.” People v. Burns, 79 N.E.3d 159, 165-66 (Ill. 2015). That is why this
Court invalidated a law categorically banning the display of signs outside its building
under the First Amendment in United States v. Grace, 461 U.S. 171 (1983), even
though the same behavior may have been regulated through “reasonable time, place
and manner restrictions.” Id. at 183-84. It also explains why this Court concluded
in United States v. Eichman, 496 U.S. 310 (1990), that the government could not
criminally punish a defendant for burning a Post Office flag under a law specifically
outlawing flag burning, even though he could still be subject to prosecution for the
destruction of federal property for the exact same conduct. Id. at 313 n.1, 316 n.5.
This understanding of as-applied challenges follows from bedrock principles of
constitutional law. Any other approach would render the “as-applied challenge” label
11
a misnomer. As this Court has long observed, a court is “never to anticipate a
question of constitutional law in advance of the necessity of deciding it.” United
States v. Raines, 362 U.S. 17, 21 (1960). If courts were instead authorized to sustain
statutory enactments on the grounds that the government might have chosen another
valid means to achieve the same result, they would stray from the case presented and
answer constitutional questions that are not implicated. Id. Courts thus routinely
reject government efforts to employ such sleights of hand. See, e.g., United States v.
Price, 111 F.4th 392, 402 n.4 (4th Cir. 2024) (en banc) (rejecting an attempt to invoke
defendant’s felon status to defeat his constitutional challenge to § 922(k)’s ban on
possessing firearms with obliterated serial numbers because regulating felon firearm
possession was “not the law Congress enacted via § 922(k)”).
That principle does not change when a court is tasked with addressing a
Second Amendment challenge under Bruen and Rahimi. Both decisions made clear
that the focus of the analysis turns on the mechanics and contours of the challenged
regulation itself. See Rahimi, 602 U.S. at 692 (“Why and how the [challenged]
regulation burdens the right are central to this inquiry.”); Bruen, 597 U.S. at 29
(requiring courts to evaluate “how and why the [challenged] regulations burden” the
Second Amendment right). Neither decision announced any rule giving judges or the
government a roving license to investigate whether there is any conceivable reason
that the party asserting his Second Amendment rights could be disarmed. It is little
wonder why not: Such a rule not only would treat the Second Amendment “as a
second-class right,” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality),
12
but would run afoul of the constitutional principles requiring strict adherence to
examining the application of the challenged law to the facts at hand, see Patel, 576
U.S. at 418.
Take Rahimi. This Court focused exclusively on whether historical goingarmed and surety laws were comparable to § 922(g)(8), even though the defendant
there had not only threatened his domestic partner (prompting the domestic
restraining order) but also threatened a woman with a firearm (prompting an
aggravated assault charge) and was connected to five other shootings. See 602 U.S.
at 687. Because the government charged Rahimi only with violating § 922(g)(8), the
Court asked only whether § 922(g)(8) could pass constitutional muster, not whether
the government could have constitutionally disarmed him on another basis. See id.
at 690, 700-02; 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[.]”). Just as with other constitutional questions, then, whether
there may be other reasons the government could disarm someone is not a valid
consideration in the proper constitutional analysis. Cf. TikTok v. Garland, 604 U.S.
56, 71-72 (2025) (“[W]e look [only] to the provisions of the Act that give rise to the
effective TikTok ban that petitioners argue burdens their First Amendment rights”
to address their as-applied challenge.).
2.
Rather than follow these settled principles, the court of appeals
answered a question not properly presented for its review—effectively affirming a
13
double deprivation of liberty (sending a man to prison and allowing him to be stripped
of his right to keep and bear arms) without ever deciding whether the actual statute
of conviction could constitutionally be applied to Mr. Taylor.
Mr. Taylor appealed the conviction and sentence he received for violating
§ 922(g)(1). C.A. Br. 6-11. The government was therefore obligated to defend the
appealed conviction by demonstrating that applying § 922(g)(1) to someone based on
state convictions for carrying a firearm without a license is consistent with our
Nation’s historical tradition. See Bruen, 597 U.S. at 29. Nothing about that inquiry
turns on an independent assessment of whether there are other reasons why Mr.
Taylor could constitutionally be disarmed.
Whether § 922(g)(1)’s prohibition on
firearm possession imposes a burden on the Second Amendment right consonant with
our Nation’s tradition requires the court to review how the law actually regulates
that behavior. Yet that is not what the court of appeals deemed constitutionally
relevant. According to the court of appeals, all that mattered was that Mr. Taylor
was on state probation at the time he possessed the firearm. App. 2a.
That reasoning is deeply flawed. The existence of § 922(g)(1) does not permit
the court to probe all aspects of an individual’s life for potential ways that the
government might lawfully dispossess him of his Second Amendment (or any other
fundamental) rights. That would entail standing in the stead of a legislature “to
make a new law, not to enforce an old one.” United States v. Reese, 92 U.S. 214, 221
(1875). Asking whether the government can constitutionally deprive someone who is
serving a term of state probation of his Second Amendment rights would make sense
14
in the context of a challenge to a law that disarms someone who is on probation. But
Mr. Taylor was not convicted and punished under any such (hypothetical) law. Mr.
Taylor appealed his § 922(g)(1) conviction and accompanying 36-month prison
sentence. Allowing the purported validity of a hypothetical uncharged law to justify
Mr. Taylor’s conviction and punishment under § 922(g)(1) turns the Second
Amendment into a uniquely second-class right.
What is more, the Third Circuit’s confusion about Second Amendment
challenges led it to ignore its basic obligation to address Mr. Taylor’s actual challenge
that his conviction could not stand under § 922(g)(1)—a statute that dispossessed him
of his Second Amendment rights solely because he had previously been convicted of
state laws prohibiting firearm possessing without a license. Mr. Taylor’s probation
status is not constitutionally relevant to “why” and “how” § 922(g)(1) impinges on his
Second Amendment rights.
The court of appeals’ approach also runs headlong into the exact problem
Bruen sought to solve—avoiding an “interest-balancing inquiry” that asks on a “caseby-case basis whether the right is really worth insisting upon.” 597 U.S. at 22-23.
Bruen adopted its historical-tradition approach to prevent judges from engaging in a
subjective assessment of a defendant’s worthiness of Second Amendment rights—“a
value-laden and political task that is usually reserved for the political branches.”
Rahimi, 602 U.S. at 732-33 (Kavanaugh, J., concurring). Yet the court of appeals’
approach encourages consideration of extra-offense characteristics unmoored from
the statute that Congress enacted. See Pitsilides v. Barr, 128 F.4th 203, 210-13 (3d
15
Cir. 2025); U.S. v. Bost, No. 24-1719, Doc. No. 50 (en banc) (Oct. 31, 2025) (ordering
briefs addressing what evidence courts may consider when evaluating Second
Amendment as-applied challenges to § 922(g)(1)). Once a court steps away from the
firearm regulation at hand and abandons the value-neutral analysis of how its
particular features measure up against the features of historical regulations, it is left
with only “value-laden” questions about who is deserving enough to exercise Second
Amendment rights. That does not comport with what this Court has instructed
courts to do when adjudicating Second Amendment challenges—namely, “apply
faithfully the balance struck by the founding generation to modern circumstances.”
Bruen, 597 U.S. at 29 n.7.
In short, the government obtained a conviction because Mr. Taylor possessed
a firearm after having been convicted in state court of carrying a firearm without a
license—not because of any other action he took or any other detail about his
background. After all, § 922(g)(1) regulates possession of a firearm by an individual
who has been convicted of a felony, not possession of a firearm by an individual on
probation.
It is that decision to attach liberty-restricting consequences to an
individual’s firearm possession that ought to have been analyzed on appeal. The
court of appeals grievously erred in choosing to analyze an entirely different question.
B.
The Courts of Appeals Have Hopelessly Fractured Over
How to Address As-Applied Challenges to § 922(g)(1).
The court of appeals’ marked departure from the proper course warrants this
Court’s intervention. At the very least, the Court should vacate and remand with
instructions for the court to address the challenge Mr. Taylor actually pressed:
16
whether § 922(g)(1) is constitutional, either on its face or as applied to him. The court
of appeals held that Mr. Taylor may be disarmed and sent to prison without ever
deciding that the statute the government charged him with violating could
constitutionally be applied to him. That result, which turns the whole notion of an
“as-applied challenge” upside-down, cannot stand, and justifies the strong medicine
of summary reversal.
That said, the lower courts would be better served by plenary review, as the
court of appeals’ approach is emblematic of the profound confusion that pervades
when it comes to § 922(g)(1) challenges. The Sixth Circuit has embraced an approach
similar to that of the court of appeals, sanctioning a free-floating inquiry into whether
there is any reason an individual could be disarmed consistent with the Second
Amendment, rather than focusing on the predicate convictions the government
invoked. The Fifth Circuit has taken the opposite (correct) approach as a general
matter, focusing on the actual felonies underlying the § 922(g)(1) charge. But even
that court has lost the plot vis-à-vis defendants on supervised release, probation, or
parole:
The Fifth Circuit joined the court of appeals in rejecting an as-applied
challenge to § 922(g)(1) because the defendant was on supervised release, even
though that status played no role in securing the § 922(g)(1) conviction. And other
circuits have held that § 922(g)(1) is not susceptible to as-applied challenges at all.
In short, the case law in the lower courts is a mess, and this Court’s guidance is
desperately needed.
17
1.
The approach of the court of appeals is no anomaly. Other circuits
likewise have indicated that § 922(g)(1) is constitutional as applied to individuals who
were on probation, parole, or supervised release when they possessed a firearm, even
though that had nothing to do with the government’s § 922(g)(1) charge. In United
States v. Goins, the Sixth Circuit considered an as-applied Second Amendment
challenge to § 922(g)(1). See 118 F.4th 794, 797 (6th Cir. 2024). Instead of addressing
the felonies underlying the defendant’s § 922(g)(1) conviction, the court relied on
three “aspects” of the defendant’s case to hold that Congress could disarm him. Id.
Specifically, (1) the defendant possessed a firearm in violation of a condition of his
state probation, (2) he was serving probation “for a dangerous crime,” and (3) “his
repeated actions demonstrated a likelihood of future dangerous conduct.” Id. In the
court’s view, the fact that the defendant was on probation at the time of his firearm
possession was the “most important[]” factor supporting the court’s conclusion that
§ 922(g)(1) could be constitutionally applied to the defendant. Id. at 804-05; see also
id. at 801-02 (“[O]ur nation’s historical tradition of forfeiture laws, which temporarily
disarmed convicts while they completed their sentences, also supports disarming
those on parole, probation, or supervised release.”); but see United States v. Hostettler,
No. 24-3403, 2026 WL 787913, at *4 (6th Cir. Mar. 20, 2026) (distinguishing Goins
and rejecting the government’s argument that the defendant’s “status on supervised
release is dispositive of the constitutional inquiry”).
Even outside the probation, parole, or supervised release context, the Sixth
Circuit does not analyze § 922(g)(1) challenges by focusing on whether the
18
government has proven that historical tradition supports depriving an individual of
his Second Amendment rights based on the predicate offenses underlying the
individual’s conviction. The court has instead concluded that, because some historical
regulations allowed “individuals [to] demonstrate that their particular possession of
a weapon posed no danger to peace,” a defendant challenging § 922(g)(1) as applied
must make an individualized showing “that he is not dangerous.” United States v.
Williams, 113 F.4th 637, 657 (6th Cir. 2024). According to the court, because “officials
of old” made individualized assessments of dangerousness, courts today must “focus
on each individual’s specific characteristics.” Id. at 657.
That includes the
individual’s “entire criminal record”—“not just the predicate offense for purposes of
§ 922(g)(1)”—and potentially even “information beyond criminal convictions” as well.
Id. at 657-58, 658 n.12.
The Fifth Circuit, for its part, has sometimes gotten the inquiry right. In
United States v. Diaz, for example, the court confronted an as-applied challenge
raised by a criminal defendant who had previously been convicted of car theft,
evading arrest, and possessing a firearm as a felon. 116 F.4th 458, 467 (5th Cir.
2024), cert. denied, 145 S. Ct. 2822 (2025).
Although the parties’ briefing had
discussed the defendant’s “various drug offenses,” none of which was punishable by
imprisonment for more than one year, the court limited its focus to only his “predicate
offenses under § 922(g)(1).” Id. Indeed, the court expressly declined to address a
contemporaneous drug charge filed in the same indictment because § 922(g)(1)
“rel[ies] on previous history.” Id. As the court explained, the relevant question is
19
whether there is “a longstanding tradition of disarming someone with a [felony]
history analogous to [the defendant’s].” Id.; see Pet. for Cert. 4, United States v.
Cockerham, No. 25-1029 (Feb. 27, 2026) (“the Fifth Circuit generally asks how
conduct analogous to the predicate crime underlying the Section 922(g)(1) charge
would have been treated at the founding”).
Yet the Fifth Circuit has inexplicably departed from that approach when it
comes to defendants who were on supervised release, probation, or parole when they
possessed a firearm in violation of § 922(g)(1). See United States v. Giglio, 126 F.4th
1039 (5th Cir. 2025). In Giglio, following the court of appeals’ lead, the Fifth Circuit
affirmed a § 922(g)(1) conviction based solely on the fact that the defendant was on
supervised release when he was charged. In the view of the Giglio court, so long as
“the government may disarm those who continue to serve sentences for felony
convictions,” it does not matter if that is what the charged law actually did. Id. at
1044 (emphasis added); see also id. at 1045-46.
2.
The Second, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits have
taken yet another approach.
In those circuits, courts do not analyze whether
historical tradition supports disarming a defendant for the predicate felony
conviction(s), or ask whether the defendant was on supervised release, parole, or
probation.
Those circuits instead eschew as-applied challenges entirely, having
deemed § 922(g)(1) to be constitutional in all its applications.
The Second Circuit’s decision in Zherka v. Bondi is illustrative. See 140 F.4th
68 (2d Cir. 2025), cert. denied, No. 25-269, 2026 WL 135708 (Jan. 20, 2026). Despite
20
reviewing “the historical tradition of disarmament laws” and finding nothing like
“modern felon-in-possession laws” in “the pre-Founding and Founding periods,” id. at
78-79, the Second Circuit reasoned that historical “[c]lass-wide … legislative
disarmament” laws against Catholics, Native Americans, Blacks, and the homeless
immunize § 922(g)(1) from any constitutional attack, id. at 86-91. The Second Circuit
thus held that the judiciary must defer to a legislature’s views of which groups are
too “dangerous” to keep and bear arms. Id. at 90.
The Fourth Circuit reached the same conclusion in United States v. Hunt, 123
F.4th 697 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025). After reviewing
historical examples of disarmament, the Fourth Circuit purported to derive from
them a tradition of “disarm[ing] categories of people based on a legislative
determination that such people ‘deviated from legal norms.’” Id. at 707. Applying
this guiding principle, the court saw no constitutional problem with any application
of § 922(g)(1), deeming it a permissible exercise of the legislature’s supposedly broad
discretion to disarm categories of persons of its choosing. Id.
The Eighth Circuit likewise adopted a categorical rule barring as-applied
challenges to § 922(g)(1), concluding that “legislatures traditionally possessed
discretion to disqualify categories of people from possessing firearms to address a
danger of misuse by those who deviated from legal norms.” United States v. Jackson,
110 F.4th 1120, 1127 (8th Cir. 2024), cert. denied, 145 S. Ct. 2708 (2025). The Eighth
Circuit did not undertake the type of historical analysis contemplated by Bruen and
Rahimi. Indeed, the court “ma[de] no attempt to explain how the burden imposed by
21
the felon-in-possession statute, which lasts for a lifetime, is comparable to any of the
Founding-era laws it discusses.” United States v. Jackson, 121 F.4th 656, 660 (8th
Cir. 2024) (Stras, J., dissenting from the denial of rehearing en banc).
The Ninth, Tenth, and Eleventh Circuits have similarly foreclosed as-applied
challenges to § 922(g)(1). In United States v. Duarte, the en banc Ninth Circuit
reaffirmed its pre-Bruen precedent that “felons are categorically different from the
individuals who have a fundamental right to bear arms,” and held that “§ 922(g)(1)
constitutionally prohibits the possession of firearms by felons,” even as to non-violent
offenders. 137 F.4th 743, 750 (9th Cir. 2025), cert. denied, No. 25-425, 2026 WL
135692 (Jan. 20, 2026); see also id. at 761 (“historical tradition is sufficient to uphold
the application of § 922(g)(1) to all felons”). In Vincent v. Bondi, the Tenth Circuit
continued to rely on pre-Rahimi precedent that had resolved the matter by invoking
dicta from Heller observing that the prohibition on felon firearm possession is
“presumptively lawful.” 127 F.4th 1263, 1264 (10th Cir. 2025), cert. denied, No. 241155, 2026 WL 568283 (Mar. 2, 2026). The Eleventh Circuit has taken the same tack,
holding that neither Bruen nor Rahimi displaced prior circuit precedent upholding
§ 922(g)(1) based solely on Heller’s “presumptively lawful” dicta. See, e.g., United
States v. Dubois, 139 F.4th 887, 893 (11th Cir. 2025), cert. denied, No. 25-6281, 2026
WL 135685 (Jan. 20, 2026).
***
In sum, not only have multiple courts embraced the flawed logic the court of
appeals employed here, but courts more generally have hopelessly fractured on how
22
to properly apply Bruen’s historical-tradition framework to as-applied Second
Amendment challenges to § 922(g)(1). This clear confusion “about [key aspects] of
the analysis” calls out for this Court to intervene and resolve the recurring
methodological issues that have caused the circuits to splinter. Morton, 123 F.4th at
498 n.2.
II.
The Question Presented Is Exceptionally Important, and This Case Is
An Effective Vehicle For This Court To Address It.
How to resolve § 922(g)(1) challenges is an exceptionally important question
given the frequency with which the federal government seeks to dispossess citizens
of firearms under § 922(g)(1). In fiscal year 2024 alone, over 90% of all § 922(g)
convictions were under § 922(g)(1). U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C.
§922(g) Firearms Offenses (May 2025), perma.cc/2GZH-ADYB. And yet, “only 18.2
percent of felony convictions in state courts and 4.2 percent of federal felony
convictions were for ‘violent offenses.’” Jackson, 110 F.4th at 1125 n.2 (citation
omitted). Adding that data to the increasing volume of constitutional challenges to
those convictions, it is critical that courts have a shared (and correct) understanding
of how to resolve them. Indeed, the government itself has made precisely this point
in seeking review of decisions unfavorable to its maximalist position regarding the
constitutionality of § 922(g)(1). See, e.g., Pet. For Rhg. En Banc 19-20, United States
v. Duarte, No. 22-50048 (9th Cir. May 14, 2024); Pet. for. Cert. 24-25, Garland v.
Range, No. 23-374 (Oct. 5, 2023).
Moreover, there are more than 19 million Americans—a non-trivial proportion
of the citizenry—with felony records. See Sarah K.S. Shannon et al., The Growth,
23
Scope, and Spatial Distribution of People with Felony Records in the United States,
1948–2010, 54 Demography 1795, 1806 (2018), perma.cc/6TNR-NEFU. And many
individuals charged with violating § 922(g)(1) do so while on probation, parole, and
supervised release. Left standing, the decision below effectively strips a sizeable
portion of the adult population of as-applied challenges to § 922(g)(1) based on a
consideration that has nothing to do with what that statute prohibits.
There is no need to await further percolation in the lower courts. Most of the
courts of appeals have already spoken, and there are no signs that they will all be
able to independently reconcile their various disagreements about even the most
fundamental aspects of the Second Amendment analysis.
To the contrary, the
intractable confusion and conflict has already prompted the circuits to implore this
Court for guidance. See, e.g., Morton, 123 F.4th at 498 n.2 (asking “the Supreme
Court [to] resolve” the “significant disagreement” among the circuits on this issue);
Jackson, 121 F.4th at 660 (Stras, J., dissenting from the denial of rehearing en banc)
(underscoring that “[t]he constitutionality of the felon-in-possession statute is as
‘exceptionally important’ as ever”).
This case presents a particularly effective vehicle for providing guidance as to
the proper mode of analysis, as the Court could choose not to delve into the ultimate
question of whether historical tradition supports punishing Mr. Taylor for possessing
a firearm based on his prior carrying-without-a-license convictions that served as the
predicates for his § 922(g)(1) charge. Because the court of appeals chose to sustain
Mr. Taylor’s § 922(g)(1) conviction based on an entirely irrelevant characteristic of
24
his background (his probation status), this Court would have the option of simply
resolving the cross-cutting question of how courts should approach these challenges,
then letting the court of appeals apply the proper framework in the first instance.
The petition should therefore be granted. In the alternative, the Court should
hold the petition for a writ of certiorari pending the resolution of United States v.
Hemani, cert. granted, No. 24-1234 (oral argument held Mar. 2, 2026), which presents
the question whether 18 U.S.C. § 922(g)(3), the federal statute prohibiting unlawful
users of controlled substances from possessing firearms, violates the Second
Amendment. If appropriate, the Court should then grant certiorari in this case,
vacate the court of appeals’ judgment, and remand the case for further consideration
in light of Hemani. See Pet. for Cert. 3-5, United States v. Cockerham, No. 25-1029
(Feb. 27, 2026) (asking this Court to hold petition raising constitutionality of
§ 922(g)(1) under the Second Amendment pending resolution of Hemani).
At a bare minimum, though, this Court should grant, vacate, and remand with
instructions for the court of appeals to consider Mr. Taylor’s challenge to his
§ 922(g)(1) conviction itself, without any free-floating inquiry into whether the
government might have some independent basis for stripping Mr. Taylor of his
Second Amendment rights. Whatever room for debate there may be about whether
§ 922(g)(1) is susceptible to as-applied challenges, there should be no debate that the
government must defend § 922(g)(1) charges by grounding § 922(g)(1) in historical
tradition. By failing to follow that bedrock rule, the court of appeals not only risked
sanctioning a violation of the Second Amendment, but deprived Mr. Taylor of his right
25
to a full and fair adjudication of the Second Amendment challenge he raised. The
Court should not let that egregious mistake stand.
CONCLUSION
The petition for a writ of certiorari should be granted. In the alternative, this
Court should hold the petition for a writ of certiorari pending the resolution of United
States v. Hemani, cert. granted, No. 24-1234 (oral argument held Mar. 2, 2026). If
appropriate, the Court should then grant the petition, vacate the court of appeals’
judgment, and remand the case for further consideration in light of Hemani.
Respectfully submitted,
ELISA A. LONG
FEDERAL PUBLIC DEFENDER
/s/ Renee Domenique Pietropaolo
RENEE DOMENIQUE PIETROPAOLO
Counsel of Record
STACIE M. FAHSEL
JAKE D. MORRISON
Assistant Federal Public Defenders
FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
1001 Liberty Avenue, Suite 1500
Pittsburgh, PA 15222
(412) 644-6565
renee_pietropaolo@fd.org
April 7, 2026
Counsel for Petitioner
26
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.