Petition for Writ of Certiorari — Ricky Parras Yanez, Petitioner v. United States
Supreme Court briefApr 20, 2026
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No. ___________________
RICKY PARRAS YANEZ, 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 WRIT OF CERTIORARI
MAUREEN SCOTT FRANCO
Federal Public Defender
KRISTIN L. DAVIDSON
Assistant Federal Public Defender
Counsel of Record
OFFICE OF THE FEDERAL
PUBLIC DEFENDER
WESTERN DISTRICT OF TEXAS
300 Convent Street, Suite 2300
San Antonio, Texas 78205
Kristin_Davidson@fd.org
(210) 472-6700
Counsel for Petitioner
iv
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.
v
Parties to the Proceedings
Pursuant to Sup. Ct. R. 14.1(b)(i), the parties to the proceedings in the court whose judgment is sought to be reviewed are:
Petitioner Ricky Parras Yanez, the defendant in the district
court and appellant below.
Respondent United States of America, the plaintiff in the district court and appellee below.
Related Proceedings
United States District Court for the Western District of Texas:
United States v. Yanez, No. 7:24-cr-00218-2-DC (May 7,
2025) (criminal judgment)
United States Court of Appeals for the Fifth Circuit:
United States v. Yanez, No. 25-50389 (Jan. 19, 2026) (per
curiam) (unpublished)
vi
Table of Contents
Question Presented ......................................................................... iv
Parties to the Proceedings ................................................................v
Related Proceedings ..........................................................................v
Table of Contents ............................................................................ vi
Table of Authorities....................................................................... viii
Introduction.......................................................................................1
Opinion Below ...................................................................................5
Jurisdiction........................................................................................5
Constitutional and Statutory Provisions Involved .........................5
Statement ..........................................................................................6
A. Legal background. .........................................................6
B. Proceedings below. ..................................................... 12
Reasons for Granting the Petition ................................................ 17
I.
The courts of appeals are deeply divided over the scope of
a fundamental constitutional right. ................................. 17
II. The decision below is wrong and conflicts with this Court’s
precedent. ........................................................................... 27
A. Section 922(g)(1) is facially unconstitutional because it
imposes an unprecedented lifetime ban on firearm
possession. .................................................................. 28
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. ............................................................. 34
vii
III. This is a critically important and recurring question. .... 38
IV. This case is an ideal vehicle for addressing this question.
............................................................................................ 39
Conclusion ...................................................................................... 40
Appendix
United States v. Yanez,
No. 25-50389 (5th Cir. Jan. 19, 2026) ..................................... 1a–2a
viii
Table of Authorities
Cases
Barrett v. United States,
423 U.S. 212 (1976) ...................................................................... 8
Binderup v. Attorney General,
836 F.3d 336 (3d Cir. 2016) (en banc) ........................................ 10
District of Columbia v. Heller,
554 U.S. 570 (2008) ............................................................ 8–9, 27
Kanter v. Barr, 919 F.3d 437
(7th Cir. 2019)............................................................ 6, 10, 33, 35
Lewis v. United States,
445 U.S. 55 (1980) .................................................................. 8, 29
NYSRPA v. Bruen,
597 U.S. 1 (2022) ................ 1, 3, 10–11, 13, 22, 28–30, 32–33, 35
Range v. Attorney General,
124 F.4th 218 (3d Cir. 2024) (en banc) ................................ 19–20
Rehaif v. United States,
588 U.S. 225 (2019) .................................................................... 38
Scarborough v. United States,
431 U.S. 563 (1977) ...................................................................... 8
TikTok v. Garland,
604 U.S. 56 (2025) ...................................................................... 36
Tot v. United States,
319 U.S. 463 (1943) ...................................................................... 6
United States v. Bullock,
123 F.4th 183 (5th Cir. 2024) ............................................... 27, 29
United States v. Contreras,
125 F.4th 725 (5th Cir. 2025) ..................................................... 27
ix
United States v. Diaz,
116 F.4th 458 (5th Cir. 2024) ................. 14–15, 17, 25–27, 29–34
United States v. Duarte,
101 F.4th 657 (9th Cir. 2024),
reh’g en banc granted, opinion vacated,
108 F.4th 786 (9th Cir. 2024) ..................................................... 23
United States v. Duarte,
137 F.4th 743 (9th Cir. 2025) (en banc) ............................... 23–24
United States v. Dubois,
139 F.4th 887 (11th Cir. 2025) ................................................... 25
United States v. Eichman,
496 U.S. 310 (1990) .................................................................... 37
United States v. Focia,
869 F.3d 1269 (11th Cir. 2017)................................................... 10
United States v. Gay,
98 F.4th 843 (7th Cir. 2024) ....................................................... 22
United States v. Giglio,
126 F.4th 1039 (5th Cir. 2025) ................................. 14–15, 17, 27
United States v. Goins,
118 F.4th 794 (6th Cir. 2024) ..................................................... 22
United States v. Grace,
461 U.S. 171 (1983) .................................................................... 37
United States v. Hunt,
123 F.4th 697 (4th Cir. 2024) ............................................... 20–21
United States v. Jackson,
110 F.4th 1120 (8th Cir. 2024) ............................................. 22–23
United States v. Kimble,
142 F.4th 308 (5th Cir. 2025) ..................................................... 27
x
United States v. Miller,
307 U.S. 174 (1939) ...................................................................... 7
United States v. Moore,
111 F.4th 266 (3d Cir. 2024) ................................................. 15, 22
United States v. Moore,
111 F.4th 266 (3d Cir. 2024),
cert. denied, 145 S. Ct. 2849 (2025) ........................................... 20
United States v. Moore,
666 F.3d 313 (4th Cir. 2012) ...................................................... 10
United States v. Rahimi,
602 U.S. 680 (2024) ...................... 2, 11–12, 15, 28, 30–32, 34, 36
United States v. Salerno,
481 U.S. 739 (1987) .................................................................... 34
United States v. Williams,
113 F.4th 637 (6th Cir. 2024) ............................................... 21, 33
Vincent v. Bondi,
127 F.4th 1263 (10th Cir. 2025) ................................................. 24
Williams v. Illinois,
399 U.S. 235 (1970) .................................................................... 36
Zherka v. Bondi,
140 F.4th 68 (2d Cir. 2025) .................................................. 18–19
Constitutional Provisions
Commerce Clause,
U.S. Const. Art. I, § 8, cl.3 ......................................................... 13
Second Amendment,
U.S. Const. amend. II..................................................... 5, 7–8, 34
xi
Statutes
18 U.S.C. § 922(g)(1)
............................ iv, 1–5, 10, 13–15, 17–29, 31–32, 34–35, 37–39
18 U.S.C. § 922(g)(3) ................................................................... 4, 40
18 U.S.C. § 922(g)(8) ...................................................................... 32
28 U.S.C. § 1254(1) .......................................................................... 5
Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65 ................... 30
An Act to Strengthen the Federal Firearms Act,
Pub. L. No. 87-342, 75 Stat. 757 (1961) ...................................... 8
Crimes Act,
1 Cong. Ch. 9, 1 Stat. 112 (1790) ............................................... 16
Federal Firearms Act,
52 Stat. 1250 (1938) ..................................................................... 6
Omnibus Crime Control and Safe Streets Act of 1968,
Pub. L. No. 90-351, 82 Stat. 197.................................................. 8
Other Authorities
Dep’t of Justice, Bureau of Justice Statistics,
Mark A. Motivans,
Federal Justice Statistics, 2022 (Jan. 2024) ............................. 39
Dep’t of Justice, Bureau of Justice Statistics,
Sean Rosenmerkel et al.,
Felony Sentences in State Courts,
2006—Statistical Tables (rev. Nov. 2010) ................................. 39
Federal Firearms Act: Hearings Before the Subcomm. to
Investigate Juvenile Delinq. of the Sen. Comm. on the
Judiciary, 89th Cong. 41 (1965) .................................................. 7
xii
Hartung, Frank E.,
Trends in the Use of Capital Punishment,
284 Annals of Am. Academy of Pol. & Soc. Sci. 8 (1952) .......... 16
Mackey, Phillip English,
Voices Against Death: American Opposition to Capital
Punishment 1787–1975 (Burt Franklin & Co., Inc., 1976) ...... 16
Preyer, Kathryn,
Crime and Reform in Post-Revolutionary Virginia,
1 LAW & HIST. REV. 53, 73 (1983) ............................................... 30
Randa, Laura E.,
Society’s Final Solution: A History and Discussion
of the Death Penalty (Univ. Press Am. Inc., 1997) .................... 16
S. Rep. No. 90-1097 (1968),
reprinted in 1968 U.S.C.C.A.N. 2112, 2169 ................................ 7
Stevenson, Dru,
In Defense of Felon-in-Possession Laws,
43 CARDOZO L. REV. 1573 (2022) ............................................... 39
U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms
Offenses (May 2025) ................................................................... 38
United States v. Hemani, No. 24-1234 (U.S.)............................ 4, 40
Winkler, Adam,
Heller’s Catch-22,
56 UCLA L. REV. 1551 (2009) ...................................................... 6
1
RICKY PARRAS YANEZ, 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 WRIT OF CERTIORARI
Petitioner Ricky Parras Yanez, respectfully petitions for a writ
of certiorari to review the judgment of the United States Court of
Appeals for the Fifth Circuit.
Introduction
This Court’s decision in NYSRPA v. Bruen, 597 U.S. 1 (2022),
brought about a sea change in Second Amendment jurisprudence.
In Bruen’s wake, the courts of appeals considered renewed constitutional challenges to the federal felon-in-possession statute, 18
U.S.C. § 922(g)(1). They reached dramatically divergent results. A
panel of the Third Circuit at first held that felons were excluded
from “the people” protected by the Second Amendment, but the en
2
banc court applied Bruen’s text-and-history analysis and held that
§ 922(g)(1) was unconstitutional as applied to an individual with a
nonviolent predicate conviction. A panel of the Ninth Circuit similarly held that the statute violated the Second Amendment as applied to someone with nonviolent priors before vacating that decision en banc. The Fourth and Seventh Circuits assumed that asapplied challenges to § 922(g)(1) were available in at least some circumstances. By contrast, the Eighth, Tenth, and Eleventh Circuits
all upheld § 922(g)(1) with no need for felony-by-felony determinations, although those courts disagreed about whether a historical
analysis was required.
The Court’s decision in United States v. Rahimi, 602 U.S. 680
(2024), did little to quell the confusion. The courts of appeals continue to be deeply divided after Rahimi. The Third, Fifth, and
Sixth Circuits each acknowledge that § 922(g)(1) is vulnerable to
as-applied challenges. The Eighth Circuit, however, has reaffirmed
its conclusion that history supports applying § 922(g)(1) across the
board with no need for felony-by-felony analysis. The Tenth and
Eleventh Circuits continue to uphold the statute in all applications
based on dicta from this Court instead of the historical analysis
that Bruen demands. The Fourth Circuit refuses to consider asapplied challenges on several grounds, including that felons are
3
not among “the people” protected by the Second Amendment. And
the en banc Ninth Circuit, as well as the Second Circuit, recently
held that there is a history of disarming certain classes of individuals that supports applying § 922(g)(1) to all felons.
In short, the Fifth Circuit’s decision below continues to deepen
an intractable conflict in the courts of appeals over the scope of a
fundamental right. And the Fifth Circuit’s decision is wrong. Section 922(g)(1) is a mid-20th century innovation drafted when Congress believed—incorrectly—that the Second Amendment does not
protect an individual right to bear arms. So Congress made no effort to pass a law that was “consistent with the Nation’s historical
tradition of firearm regulation.” See Bruen, 597 U.S. at 24. Rather,
it passed a sweeping ban that is irreconcilable with our history and
tradition. Section 922(g)(1) is facially unconstitutional because its
lifetime prohibition on gun possession imposes a historically unprecedented burden on the right to bear arms. No historical firearm law imposed permanent disarmament. And the justification
behind § 922(g)(1)—disarming a broad group of potentially irresponsible individuals—also fails historical scrutiny. At most, our
history shows a tradition of disarming violent individuals who
threaten armed insurrection or pose a present physical threat to
4
others. So, at the very least, § 922(g)(1) is unconstitutional as applied to individuals like Yanez who were previously convicted of
crimes that do not establish a present threat of violence. And the
Fifth Circuit’s decision that Yanez could be disarmed because he
was on supervised release when he possessed a gun flouts the plain
text of § 922(g)(1), which disarms individuals based on a prior conviction, not based on their status as a supervised releasee.
This question is critically important. Section 922(g)(1) is one of
the most commonly charged federal offenses. Uncertainty about
whether the statute is constitutional affects thousands of criminal
cases each year. Even more concerning, § 922(g)(1) categorically
and permanently prohibits millions of Americans—the vast majority of whom have nonviolent convictions—from exercising their
right to keep and bear arms.
This Court’s intervention is urgently needed to resolve the
scope of a fundamental constitutional right. After Rahimi, the confusion among the courts of appeals has only deepened. This question will not go away, and this is an ideal vehicle to resolve it. The
Court should grant certiorari. At minimum, the Court should hold
this petition pending the outcome of United States v. Hemani, No.
24-1234 (U.S.), which involves a Second Amendment challenge to
18 U.S.C. § 922(g)(3) and could shed light on the required analysis.
5
Opinion Below
A copy of the unpublished opinion of the court of appeals,
United States v. Yanez, No. 25-50389 (5th Cir. Jan. 19, 2026) (per
curiam), is reproduced at Pet. App. 1a–2a.
Jurisdiction
The opinion and judgment of the United States Court of Appeals for the Fifth Circuit were entered on January 19, 2026. This
petition is filed within 90 days after the judgment’s entry. See Sup.
Ct. R. 13.1. The Court has jurisdiction to grant certiorari under 28
U.S.C. § 1254(1).
Constitutional and Statutory Provisions Involved
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people
to keep and bear Arms, shall not be infringed.”
Section 922(g)(1) of Title 18 of the United States Code provides:
“It shall be unlawful for any person … who has been convicted in
any court of, a crime punishable by imprisonment for a term exceeding one year … to … possess in or affecting commerce, any
firearm or ammunition.”
6
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). In 1938, Congress criminalized firearm possession by individuals convicted of certain crimes for the first time.
See Federal Firearms Act, ch. 850, § 2(f), 52 Stat. 1250, 1251
(1938). But that statute was much narrower than the modern version. The Federal Firearms Act only applied to someone “convicted
of a crime of violence,” id., which included “murder, manslaughter,
rape, mayhem, kidnaping, burglary, housebreaking,” and certain
kinds of aggravated assault, id. § 1(6). The Act prohibited an individual with such a conviction from “receiv[ing]” a firearm, and it
considered possession to be “presumptive evidence” of receipt. 1 Id.
§ 2(f).
This possession-based presumption was short-lived. A few
years later, this Court invalidated the presumption on due process
grounds. Tot v. United States, 319 U.S. 463, 467 (1943).
1
7
2. It was not until the 1960s that the federal felon-in-possession statute took on its modern form. At the time, Congress shared
a widely held—but incorrect—understanding of the Second
Amendment. In committee testimony, the Attorney General assured Congress that “[w]ith respect to the second amendment, the
Supreme Court of the United States long ago made it clear that
the amendment did not guarantee to any individuals the right to
bear arms” and opined that “the right to bear arms protected by
the second amendment relates only to the maintenance of the militia.” Federal Firearms Act: Hearings Before the Subcomm. to Investigate Juvenile Delinq. of the Sen. Comm. on the Judiciary, 89th
Cong. 41 (1965). And Congress dismissed constitutional concerns
about federal firearm regulations, explaining that the Second
Amendment posed “no obstacle” because federal regulations did
not “hamper the present-day militia.” S. Rep. No. 90-1097 (1968),
reprinted in 1968 U.S.C.C.A.N. 2112, 2169. Congress relied on
court decisions—including United States v. Miller, 307 U.S. 174
(1939)—which held that the Second Amendment “was not adopted
with the individual rights in mind.” Id.
Unconstrained by the Second Amendment, “Congress sought to
rule broadly,” employing an “expansive legislative approach” to
8
pass a “sweeping prophylaxis … against misuse of firearms.” Scarborough v. United States, 431 U.S. 563, 572 (1977) (first quote);
Lewis v. United States, 445 U.S. 55, 61, 63 (1980) (second and third
quotes). In particular, Congress was concerned with keeping firearms out of the hands of broad categories of “potentially irresponsible persons, including convicted felons.” Barrett v. United States,
423 U.S. 212, 220 (1976). So it enacted two significant changes that
brought about the modern felon-in-possession ban. First, Congress
expanded the Federal Firearms Act to prohibit individuals convicted of any crime “punishable by imprisonment for a term exceeding one year”—not just violent crimes—from receiving a firearm. See An Act to Strengthen the Federal Firearms Act, Pub. L.
No. 87-342, § 2, 75 Stat. 757, 757 (1961). Second, a few years later,
Congress criminalized possession of a firearm—not just receipt—
by anyone with a felony conviction. See Omnibus Crime Control
and Safe Streets Act of 1968, Pub. L. No. 90-351, § 1202(a)(1), 82
Stat. 197, 236.
3. In its seminal decision in District of Columbia v. Heller, this
Court held for the first time that the Second Amendment codifies
an individual right to keep and bear arms—a right that is not limited to militia service. 554 U.S. 570, 579–600 (2008). In reaching
9
this conclusion, the Court conducted a “textual analysis” of the Second Amendment’s language and surveyed the Amendment’s “historical background.” Id. at 578, 592. The Court had “no doubt, on
the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Id. at 595. Relying on the historical understanding of the Amendment, however,
the Court recognized that “the right secured by the Second Amendment is not unlimited.” Id. at 626. The Court identified several
“longstanding” and “presumptively lawful” firearm regulations,
such as prohibitions on felons possessing firearms. Id. at 626–27
& n.27. But the Court cautioned that it was not “undertak[ing] an
exhaustive historical analysis … of the full scope of the Second
Amendment.” Id. at 626. And it did not cite any historical examples
of these “longstanding” laws, explaining that there would be “time
enough to expound upon the historical justifications for the[se] exceptions … if and when those exceptions come before us.” Id. at
635. The Court then turned to the District of Columbia handgun
ban at issue, finding that it was historically unprecedented and
thus violated the Second Amendment. Id. at 629, 631–35.
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
10
one and applied means-ends scrutiny at step two. See, e.g., Kanter,
919 F.3d at 441–42; United States v. Focia, 869 F.3d 1269, 1285
(11th Cir. 2017). And this Court’s recognition that the Second
Amendment protects an individual right to bear arms brought renewed constitutional challenges to § 922(g)(1). But the courts of
appeals almost uniformly rejected Second Amendment challenges
to the statute, either applying means-ends scrutiny or relying on
Heller’s “presumptively lawful” language. See, e.g., United States
v. Moore, 666 F.3d 313, 316–17 (4th Cir. 2012) (collecting cases).
The lone exception was the Third Circuit, which held that
§ 922(g)(1) was unconstitutional as applied to two individuals with
underlying convictions—one for corrupting a minor and the other
for carrying a handgun without a license—that “were not serious
enough to strip them of their Second Amendment rights.”
Binderup v. Attorney General, 836 F.3d 336, 351–57 (3d Cir. 2016)
(en banc).
4. Then came Bruen. In Bruen, this Court held that the 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
11
protects that conduct.” Id. at 17. “The government must then justify its regulation by demonstrating that it is consistent with the
Nation’s historical tradition of firearm regulation.” Id. at 24. “Only
then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” Id. (cleaned
up).
Bruen—and the Court’s later decision in Rahimi—explain that
“the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin
our regulatory tradition.” Rahimi, 602 U.S. at 692. “A court must
ascertain whether the new law is ‘relevantly similar’ to laws that
our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’”
Id. (quoting Bruen, 597 U.S. at 29). The law need not be a “historical twin,” but analogical reasoning is also not a “regulatory blank
check.” Bruen, 597 U.S. at 30. “How” and “why” the regulations
burden the right to bear arms are central to this inquiry. Bruen,
597 U.S. at 29; Rahimi, 602 U.S. at 692. These considerations ask
whether the modern and historical regulations impose a “comparable burden” (the how) and “whether that burden is comparably
justified” (the why). Bruen, 597 U.S. at 29. “Even when a law reg-
12
ulates 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. Yanez is a convicted felon. In 2010, he was convicted of
Texas delivery of a controlled substance and sentenced to two
years’ imprisonment. In 2013, he was convicted of being a felon in
possession of a firearm and sentenced to 10 years’ imprisonment,
followed by three years’ supervised release. In 2021, Yanez was
convicted of escape from custody and sentenced to 10 months’ imprisonment, followed by three years’ supervised release. Yanez began his terms of supervised release in July 2023.
In this case, officials with Child Protective Services conducted
a welfare check on an infant suspected of being exposed to methamphetamine at Yanez’s trailer home. At the time, both Yanez and
the child’s mother, Ashley Moore, were serving terms of federal supervised release. After officers entered the trailer, they noticed a
pistol magazine and bullet in plain view. Pursuant to a search warrant for the trailer, officers found a Smith and Wesson semi-automatic handgun that had been manufactured in Tennessee. Yanez
admitted ownership of the firearm.
13
Yanez was charged in a one-count indictment with “possess[ing] a firearm, to wit: a Smith & Wesson 9mm SD9 2.0, said
firearm having been shipped and transported in interstate and foreign commerce,” “knowing that he had been convicted of a crime
punishable by imprisonment for a term exceeding one year,” in violation of 18 U.S.C. § 922(g)(1).
2. Yanez moved to dismiss the indictment on two grounds.
First, he argued that § 922(g)(1) is unconstitutional under the Second Amendment, both facially and as applied to those with criminal histories like his, under the Court’s decision in Bruen. Second,
he argued that the statute exceeds Congress’s power under the
Commerce Clause. The district court denied Yanez’s motion.
3. Yanez pleaded guilty to the indictment. On the prior-conviction element, the factual basis for his guilty plea said that Yanez
had been convicted of the felony offenses of “Manufacture/Delivery
of a Controlled Substance” in 2010, and possession of a firearm by
a felon in 2014. On the interstate-commerce element, the factual
basis said that the firearm Yanez possessed “was manufactured in
Tennessee” and thus had “entered the Western District of Texas
via shipping in interstate and foreign commerce[.]”
The district court sentenced Yanez to 37 months’ imprisonment
and three years’ supervised release.
14
4. Yanez 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 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 Yanez’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
15
are still serving out sentences.” Id. As for the “why,” historical forfeiture laws “burdened the right to bear arms for the same reasons
that we now burden the rights of convicts on supervised release: to
deter criminal conduct, protect the public, and facilitate the convict’s rehabilitation.” Id. (quoting United States v. Moore, 111 F.4th
266, 269–70 (3d Cir. 2024)). As for the “how,” even though historical laws “required forfeiture of all chattels, that practice can nevertheless justify the narrower practice of prohibiting possession of
some (viz., firearms).” Id. (citing the greater-includes-the-lesser
theories of Diaz, 116 F.4th at 469–70, and Rahimi, 602 U.S. at 699).
Finally, “[b]olstering” Giglio’s “conclusion is the unremarkable
proposition that those subject to criminal sentences do not enjoy
the full panoply of rights guaranteed by our Constitution.” Id. at
1045.
Yanez argued that § 922(g)(1) facially violates the Second
Amendment to preserve the issue for further review but acknowledged that the Fifth Circuit’s precedent foreclosed his argument.
As for his as-applied challenge to § 922(g)(1), Yanez argued that,
under the Diaz framework, the Government cannot identify a historical tradition permanently disarming, or severely punishing by
capital punishment or estate forfeiture, someone convicted of delivery of a controlled substance, possessing a firearm as a felon, or
16
escape. Nor, he argued, could the Government show any such tradition has a comparable purpose to § 922(g)(1) or comparably burdens the right to bear arms.
Offenses that were punished by death are not analogous to Yanez’s prior convictions, he argued. Although the penal laws varied
by jurisdiction, 2 colonies and the new states generally punished
“arson, piracy, treason, murder, sodomy, burglary, robbery, rape,
horse-stealing, slave rebellion, and often counterfeiting” by death.
Laura E. Randa, Society’s Final Solution: A History and Discussion
of the Death Penalty 4 (Univ. Press Am. Inc., 1997); see also Phillip
English Mackey, Voices Against Death: American Opposition to
Capital Punishment 1787–1975 xiv (Burt Franklin & Co., Inc.,
1976). The First Congress recognized only a select few felonies as
capital, including treason, murder, certain piracy and maritime offenses, prison break for capital offenders, and counterfeiting U.S.
securities or certificates. See Crimes Act, 1 Cong. Ch. 9, 1 Stat. 112
(1790). None of these offenses, Yanez argued, are sufficiently analogous to delivery of a controlled substance, possessing a firearm as
a felon, or escape.
2 Frank E. Hartung, Trends in the Use of Capital Punishment,
284 Annals of Am. Academy of Pol. & Soc. Sci. 8, 10 (1952) (“The
English colonies in this country had from ten to eighteen capital
offenses.”).
17
As for his being on supervised release at the time of the instant
offense, Yanez acknowledged that, if Giglio is correct that there is
a historical tradition of disarming those who are serving felony
sentences, Giglio, 126 F.4th at 1043–44, and that this tradition
supports disarming those who are on federal supervised release for
a felony conviction, then his as-applied challenge to § 922(g)(1) was
foreclosed by Giglio. Yanez nevertheless argued below, for purposes
of preserving the argument for further review, that Giglio was
wrongly decided.
The Government moved for summary affirmance based on Yanez’s concessions. Yanez took no position on the motion. The court
of appeals granted the Government’s motion, agreeing with the
parties that Yanez’s facial and as-applied challenges were foreclosed by Diaz and Giglio. Pet. App. 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-
18
history framework but reach dramatically different results. Examining the text, the circuits disagree about whether felons are part
of “the people” protected by the Second Amendment. And in analyzing the historical evidence, the circuits are split over which traditions justify § 922(g)(1), whether the statute is vulnerable to asapplied 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), cert. denied,
No. 25-269, 2026 WL 135708 (Jan. 20, 2026). Turning to the asapplied 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
19
particularized finding that the individuals disarmed pose a threat
to society.” Id. at 78–79.
2. The Third Circuit, sitting en banc, struck down § 922(g)(1)
as applied to an individual convicted of food stamp fraud who did
not “pose[ ] a physical danger to others.” Range v. Attorney General, 124 F.4th 218, 232 (3d Cir. 2024). The court held that the
plaintiff was part of “the people” protected by the Second Amendment despite his prior conviction. Id. at 226–28. And the court held
that the government failed to show “a longstanding history and
tradition of depriving people like [the plaintiff] of their firearms.”
Id. at 232. In doing so, the court rejected the government’s reliance
on status-based restrictions, emphasizing that Founding-era laws
disarmed distrusted groups—like loyalists, Native Americans, religious minorities, and Black Americans—based on fear of rebellion. Id. at 229–30. The court also dismissed the government’s
“dangerousness” principle, which would encompass even nonviolent offenders, as “far too broad.” Id. at 230 (cleaned up). Finally,
the court rejected the government’s reliance on capital punishment
and forfeiture, explaining that “the Founding-era practice of punishing some nonviolent crimes with death does not suggest that
the particular (and distinct) punishment at issue here—de facto
20
lifetime disarmament for all felonies and felony-equivalent misdemeanors—is rooted in our Nation’s history and tradition.” Id. at
230–31. However, the court subsequently held that a prosecution
under § 922(g)(1) is justified as applied to “a convict on supervised
release.” United States v. Moore, 111 F.4th 266, 269–73 (3d Cir.
2024), cert. denied, 145 S. Ct. 2849 (2025).
3. The Fourth Circuit takes a much different approach, refusing to entertain as-applied challenges and upholding § 922(g)(1)
“without regard to the specific conviction that established [a person’s] inability to lawfully possess firearms.” United States v.
Hunt, 123 F.4th 697, 700 (4th Cir. 2024), cert. denied, 145 S. Ct.
2756 (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. And at the second step,
the court concluded that legislatures could categorically disarm
21
groups from possessing firearms in a historical analysis mirroring
the Eighth Circuit’s discussed below. Id. at 705–08.
4. The
Sixth
Circuit
allows
as-applied
challenges
to
§ 922(g)(1) by individuals who show that they are “not dangerous.”
United States v. Williams, 113 F.4th 637, 657, 663 (6th Cir. 2024).
The court first confirmed that felons are part of “the people” protected by the Second Amendment. Id. at 648–50. Next, the court
found historical support for disarming “presumptively dangerous”
groups who posed a threat to public order—like religious minorities, Native Americans, loyalists, and freedmen—but explained
that these laws all allowed individuals to show that they posed no
danger. Id. at 657. So the court held that an individual must be
given an opportunity to show that he is “not dangerous” and “falls
outside of § 922(g)(1)’s constitutionally permissible scope.” Id. In
conducting this dangerousness inquiry, the court explained that
courts can “consider a defendant’s entire criminal record—not just
the specific felony underlying his § 922(g)(1) conviction.” Id. at
659–60. The Sixth Circuit extended this reasoning to hold that,
like the Third Circuit, the nation’s historical tradition of “disarming the dangerous” and “forfeiture laws” “also supports disarming
those on parole, probation, or supervised release.” United States v.
22
Goins, 118 F.4th 794, 801–02 (6th Cir. 2024) (citing Moore, 111
F.4th at 269–72).
5. The Seventh Circuit has assumed that as-applied challenges to § 922(g)(1) are available. United States v. Gay, 98 F.4th
843, 846 (7th Cir. 2024). But the court concluded that the defendant in Gay—who had convictions for violent felonies and was on
parole when he possessed a gun—was “not a ‘law-abiding, responsible’ person who has a constitutional right to possess firearms.”
Id. at 847 (quoting Bruen, 597 U.S. at 26, 70).
6. The Eighth Circuit has upheld § 922(g)(1) as constitutional
across the board with “no need for felony-by-felony litigation.”
United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024), reh’g
en banc denied, 121 F.4th 656 (8th Cir. 2024), cert. denied, 145 S.
Ct. 2708 (2025). Based on historical laws prohibiting certain
groups of people—religious minorities, Native Americans, and
those who refused to declare an oath of loyalty—from possessing
guns, the court reasoned that legislatures have long exercised authority to disarm broad categories of people who are “not law-abiding” or “presented an unacceptable risk of danger if armed.” Id. at
1126–28. Although the Third and Sixth Circuits surveyed similar
laws and found that they did not support disarming individuals
who pose no risk of danger, the Eighth Circuit disagreed. The court
23
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 aligned itself with the Second,
Fourth, Eighth, Tenth, and Eleventh Circuits and held that
“§ 922(g)(1) is not unconstitutional as applied to nonviolent felons.”
United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025), cert.
denied, No. 25-425, 2026 WL 135692 (Jan. 20, 2026). The court relied on this Court’s repeated assurances that prohibitions on the
possession of a firearm by felons are presumptively lawful and that
Bruen and Rahimi did not disrupt the court’s pre-Bruen precedent
that foreclosed Second Amendment challenges to § 922(g)(1). Id. at
750–52. It then applied Bruen’s test to confirm its reading that no
felony-by-felony evaluation of § 922(g)(1) is required. Id. at 761.
While the court found that the conduct proscribed by § 922(g)(1) is
covered by the plain text of the Second Amendment, id., the court
held that the government met its burden under Bruen’s second
24
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),
cert. denied, No. 24-1155, 2026 WL 568283 (Mar. 2, 2026). But the
court did not engage in Bruen’s text-and-history analysis. Instead,
the court held that it remained bound by pre-Bruen precedent. Id.
at 1264–65. That precedent, in turn, foreclosed as-applied challenges to § 922(g)(1) based on Heller’s statement that prohibitions
on the possession of firearms by felons were “longstanding” and
“presumptively lawful.” Id. at 1265. So the court held that “the
Second Amendment doesn’t prevent application of § 922(g)(1) to
nonviolent offenders.” Id. at 1266.
9. The Eleventh Circuit has also held—without conducting a
historical analysis—that statutes disqualifying felons from possessing a firearm under any and all circumstances do not offend
the Second Amendment. United States v. Dubois, 139 F.4th 887,
25
893 (11th Cir. 2025), cert. denied, No. 25-6281, 2026 WL 135685
(Jan. 20, 2026). Like the Second and Tenth Circuits, the court held
that its pre-Bruen precedent—which relied on Heller—remained
binding. Id. Thus, the court reaffirmed its conclusion that felons
are categorically disqualified from exercising their Second Amendment right under Heller. Id. at 893–94.
10. The Fifth Circuit’s decision below underscores the deep divisions between the courts of appeals.
a. The Fifth Circuit splits with other circuits on two preliminary questions. Unlike the Second, Fourth, Ninth, Tenth, and
Eleventh Circuits—which have held that they remain bound by
their pre-Bruen precedent—the Fifth Circuit agrees with the Third
and Sixth Circuits that Bruen rendered its prior precedent obsolete. Diaz, 116 F.4th at 466. And while the Tenth and Eleventh Circuits have declined to conduct any historical analysis based on Heller’s “presumptively lawful” language, the Fifth Circuit joined the
Third and Sixth Circuits in refusing to treat that language as controlling. 3 Id. Instead, these courts acknowledge that Bruen requires a full text-and-history analysis. Id.
3 The Fifth Circuit expressly rejected the Eleventh Circuit’s re-
liance “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.
26
b. At Bruen’s first step, the Fifth Circuit adopted the majority
view shared by the Second, Third, and Sixth Circuits—but split
with the Fourth Circuit—by holding that felons are part of “the
people” protected by the Second Amendment. Id. at 466–67.
c. At the second step, the Fifth Circuit’s historical analysis diverges from other circuits in several respects. The Second, Fourth,
Eighth, and Ninth Circuits have held that history supports upholding § 922(g)(1) regardless of a defendant’s underlying conviction. But the Fifth Circuit left the door open for “as-applied challenges by defendants with different predicate convictions.” Diaz,
116 F.4th at 469 & 470 n.4. At first, the Fifth Circuit limited its
analysis to whether the felony predicates that triggered § 922(g)(1)
were relevantly similar to crimes that subjected the convictions to
“serious and permanent punishment” at the Founding. Diaz, 116
F.4th at 470 & n.4. This is different than the line drawn by the
Third Circuit (whether a person poses a physical danger to others)
and the Sixth Circuit (whether a person is dangerous). The Fifth
Circuit has since held that § 922(g)(1) is constitutional as applied
to individuals convicted of “violent crimes,” as well as crimes
deemed to be “inherently dangerous.” United States v. Bullock, 123
F.4th 183, 185 (5th Cir. 2024), cert. denied, 146 S. Ct. 255 (2025)
(first quotation); United States v. Kimble, 142 F.4th 308, 317 (5th
27
Cir. 2025), cert. denied, No. 25-5747, 2026 WL 135675 (U.S. Jan.
20, 2026) (second quotation). And the Fifth Circuit has joined the
Third and Sixth Circuits in holding that defendants who were on
supervised release when they possessed a firearm can be disarmed
under § 922(g)(1). See Giglio, 126 F.4th at 1044; United States v.
Contreras, 125 F.4th 725, 732–33 (5th Cir. 2025).
*
*
*
The courts of appeals are fractured over how to conduct the
Second Amendment analysis, and the splits are entrenched and
deepening. This Court’s intervention is needed to resolve the scope
of the right to keep and bear arms.
II.
The decision below is wrong and conflicts with this
Court’s precedent.
The Fifth Circuit’s decision in Diaz, followed by the panel below, correctly held that, under the plain text of the Second Amendment, felons are part of “the people” protected by the Amendment.
116 F.4th at 467; see Pet. App. 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 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
28
burdens the right to keep and bear arms. See Bruen, 597 U.S. at
29; Rahimi, 602 U.S. at 692. The difference in how § 922(g)(1) burdens the right to bear arms is fatal to the statute facially, and why
it burdens the right to bear arms dooms the statute as applied to
offenders like Yanez. 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 self-defense. The government has not cited a single historical
gun law that imposed a permanent prohibition on the right to keep
and bear arms—even for self-defense. In other words, no historical
regulation “impose[d] a comparable burden on the right of armed
self-defense[.]” See Bruen, 597 U.S. at 29.
That is hardly surprising. When Congress passed the modern
felon-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
29
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”—Congress employed an “expansive legislative approach” to
pass a “sweeping prophylaxis … against misuse of firearms.”
Lewis, 445 U.S. at 61, 63. And that sweeping, permanent prohibition on gun possession imposes a burden far greater 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. 4 Instead, the court re-
4 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.
30
lied on capital punishment and forfeiture laws as historical analogues justifying § 922(g)(1). Id. at 467–68. That reliance conflicts
with this Court’s precedent in three ways. 5
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 pun-
5 The Fifth Circuit’s decision also misstates the historical evi-
dence 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 that individuals convicted of
horse theft “were often subject to the death penalty,” Diaz, 116
F.4th at 468–69, 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).
31
ishment 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.
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
greater-includes-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
32
not follow, as the Fifth Circuit concluded, that “if capital punishment was permissible to respond to theft, then the lesser restriction of permanent disarmament that § 922(g)(1) imposes is
also permissible.” Diaz, 116 F.4th at 469. This Court explained that
the purpose of imprisonment under the going armed laws was “to
respond to the use of guns to threaten the physical safety of others.” Rahimi, 602 U.S. at 699. So both the greater historical punishment (imprisonment under the going armed laws) and the
lesser
modern
restriction
(disarmament
under
18
U.S.C.
§ 922(g)(8)) had the same purpose—curbing gun violence. Not so
here. Again, capital punishment and forfeiture simply did not target gun violence.
b. This Court has also emphasized that the right to bear arms
“is not a second-class right, subject to an entirely different body of
rules than the other Bill of Rights guarantees.” Bruen, 597 U.S. at
70 (cleaned up). But the Fifth Circuit’s reasoning—that because
capital punishment is an “obviously permanent” deprivation of an
individual’s right to bear arms, the lesser restriction of permanent
disarmament is permissible for individuals who are not executed,
Diaz, 116 F.4th at 469—conflicts with how the Constitution treats
other fundamental rights.
33
“Felons, after all, don’t lose other rights guaranteed in the Bill
of Rights even though an offender who committed the same act in
1790 would have faced capital punishment.” Williams, 113 F.4th at
658. “No one suggests that such an individual has no right to a jury
trial or be free from unreasonable searches and seizures.” Id. And
“we wouldn’t say that the state can deprive felons of the right to
free speech because felons lost that right via execution at the time
of the founding.” Kanter, 919 F.3d at 461–62 (Barrett, J., dissenting). “The obvious point that the dead enjoy no rights does not tell
us what the founding-era generation would have understood about
the rights of felons who lived, discharged their sentences, and returned to society.” Id. at 462. Rather, “history confirms that the
basis for the permanent and pervasive loss of all rights cannot be
tied generally to one’s status as a convicted felon or to the uniform
severity of punishment that befell the class.” Id. at 461.
c. Finally, this Court has expressed “doubt that three colonial
regulations could suffice to show a tradition.” Bruen, 597 U.S. at
46. But the Fifth Circuit relied on only three laws to establish a
tradition of permanently punishing individuals who have been
convicted of theft: a colonial Massachusetts law, a Founding-era
New York law, and a post-revolutionary Virginia law. Diaz, 116
F.4th at 468–69. Putting to one side whether the court’s reading of
34
these laws is correct, this limited historical evidence is too slender
a reed to establish a tradition justifying the deprivation of a fundamental constitutional right.
3. A law is not compatible with the Second Amendment if it
regulates the right to bear arms “to an extent beyond what was
done at the founding.” Rahimi, 602 U.S. at 692. Section 922(g)(1)
does just that. It imposes a lifetime ban on firearm possession that
would have been unimaginable to the Founders. Thus, § 922(g)(1)
facially violates the Second Amendment because there is “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
35
not cited any tradition of disarming nonviolent individuals. The
government’s historical evidence shows—at most—a tradition of
disarming violent individuals who threaten armed insurrection or
presently threaten the physical safety of others. See Kanter, 919
F.3d at 454 (Barrett, J., dissenting) (explaining that historical evidence shows “that the legislature may disarm those who have
demonstrated a proclivity for violence or whose possession of guns
would otherwise threaten the public safety”). And there is no basis
in law that condones the Fifth Circuit’s decision to answer a question not presented for its review without deciding whether the actual statute of conviction could constitutionally be applied to a defendant.
2. Yanez appealed his judgment of conviction under § 922(g)(1)
to challenge the criminal penalties the government sought to impose for violating that statute. The government was thus obligated
to defend the appealed conviction by demonstrating that applying
§ 922(g)(1) to someone based on the felonies identified in Yanez’s
guilty plea—manufacture/delivery of a controlled substance and
possession of a firearm by a felon—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 Yanez
36
could constitutionally be disarmed. See Rahimi, 602 U.S. at 700–
02 (because the government charged Rahimi only with violating
§ 922(g)(8), the Court asked only whether § 922(g)(8) could pass
constitutional muster, not whether the government could 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,
604 U.S. 56, 71–72 (2025) (“we look [only] to the provisions of the
Act that give rise to the effective TikTok ban that petitioners argue
37
burdens their First Amendment rights” to address their as-applied
challenge); United States v. Eichman, 496 U.S. 310, 313 n.1, 316
n.5 (1990) (holding that the government could not criminally punish a defendant for burning a 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 Yanez because
he possessed a firearm after having been convicted of certain felonies—not because he was on supervised release. 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
38
§ 922(g)(1) regulates, is contrary to the historical-tradition approach Bruen adopted and the longstanding principles observed by
the Court when reviewing the constitutionality of a specific statute. The Fifth Circuit significantly erred in choosing to analyze the
constitutionality of § 922(g)(1) as applied to Yanez based on factors
outside the scope of the statute.
At a minimum, this Court should grant, vacate, and remand
with instructions for the Fifth Circuit to consider Yanez’s asapplied 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, Ҥ 922(g) is no minor
provision.” Rehaif v. United States, 588 U.S. 225, 239 (2019) (Alito,
J., dissenting). Out of about 61,000 cases reported to the Sentencing Commission in Fiscal Year 2024, more than 6,700 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 (May 2025). 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
39
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 people it prohibits from possessing firearms are peaceful, with convictions for only nonviolent offenses. Less than 20% of
state felony convictions and less than 5% of federal felony convictions are for violent offenses. See Dep’t of Justice, Bureau of Justice
Statistics, Sean Rosenmerkel et al., Felony Sentences in State
Courts, 2006—Statistical Tables, at 3 (Table 1.1) (rev. Nov. 2010);
Dep’t of Justice, Bureau of Justice Statistics, Mark A. Motivans,
Federal Justice Statistics, 2022, at 12 (Table 7) (Jan. 2024).
Given § 922(g)(1)’s widespread impact both on new prosecutions and on the millions of nonviolent Americans it prohibits from
exercising a fundamental constitutional right, this Court should
answer this important and recurring question as soon as possible.
IV.
This case is an ideal vehicle for addressing this
question.
This case presents an ideal vehicle for addressing whether
§ 922(g)(1) violates the Second Amendment. The case cleanly presents a purely legal issue. There are no jurisdictional problems,
factual disputes, or preservation issues. Yanez thoroughly briefed
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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. At minimum, the
Court should hold Yanez’s petition pending the decision in United
States v. Hemani, No. 24-1234 (U.S.) (argued March 2), which asks
whether 18 U.S.C. § 922(g)(3) is constitutional as applied to an unlawful user of controlled substances.
Conclusion
The petition for a writ of certiorari should be granted.
Respectfully submitted.
April 20, 2026
MAUREEN SCOTT FRANCO
Federal Public Defender
KRISTIN L. DAVIDSON
Assistant Federal Public Defender
Counsel of Record
OFFICE OF THE FEDERAL
PUBLIC DEFENDER
WESTERN DISTRICT OF TEXAS
Counsel for Petitioner
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.