Petition for Writ of Certiorari — Merwin Smith, Petitioner v. United States

No. ______________

IN THE

Supreme Court of the United States

MERWIN SMITH,

PETITIONER,

V.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Melissa K. Goymerac

Assistant Federal Public Defender

1010 Market, Suite 200

St. Louis, MO. 63101

(314) 241-1255

Melissa_Goymerac@fd.org

Attorney for Petitioner

QUESTION PRESENTED

Whether 18 U.S.C. § 922(g)(1), which prohibits anyone with a felony conviction from

possessing a firearm, is constitutional as applied to every defendant, irrespective of the casespecific circumstances and despite the Second Amendment’s command that, “the right of the

people to keep and bear Arms, shall not be infringed.”

i

PARTIES TO THE PROCEEDINGS

Petitioner (appellant below) is Merwin Smith.

Respondent (appellee below) is the United States of America.

RELATED PROCEEDINGS

United States v. Smith, No. 24-2445 (8th Cir. Jan. 23, 2026)

United States v. Smith, No. 4:22-cr-00167-SEP (E.D. Mo. July 2, 2024)

ii

TABLE OF CONTENTS

Page:

Question Presented............................................................................................................ i

Parties to the Proceedings ................................................................................................. ii

Related Proceedings ......................................................................................................... ii

Table of Contents ............................................................................................................ iii

Table Of Authorities ........................................................................................................ iv

Petition for Writ of Certiorari ........................................................................................... 1

Opinion Below ................................................................................................................. 1

Jurisdiction ...................................................................................................................... 1

Relevant Provisions .......................................................................................................... 1

Introduction ..................................................................................................................... 2

Statement of the Case ....................................................................................................... 3

I. Legal Background ................................................................................................... 3

II. Factual and Procedural History ............................................................................6

Reasons for Granting the Writ .......................................................................................... 8

I. The courts of appeal are divided over the constitutionality of 18 U.S.C.

§ 922(g)(1)……………………………………………………………...…………………8

A. Six circuits hold that § 922(g)(1) is constitutional every case............................... 8

B. Following Rahimi, four circuits have allowed as-applied challenges to

§ 922(g)(1). ..................................................................................................... 10

C. There is significant methodological division among the circuits that allow

as-applied challenges. ..................................................................................... 12

D. Without intervention, division will only continue to grow. .............................. 12

iii

II. The decision below was wrong...........................................................................13

III. This case is a good vehicle to address an issue which impacts millions of

Americans...........................................................................................................15

Conclusion ..................................................................................................................... 15

Appendix A, Opinion of the United States Court of Appeals for the Eighth Circuit,

United States v. Smith, No. 24-2445 (8th Cir. Jan. 23, 2026)…………………………………...1a

Appendix B, Judgment of the United States District Court for the Eastern District of Missouri,

United States v. Smith, No. 4:22-cr-00167-SEP (E.D. Mo. July 2, 2024).................................3a

iv

TABLE OF AUTHORITIES

Page:

Cases

Barrett v. United States, 423 U.S. 212 (1976)..................................................................... 4

District of Columbia v. Heller, 554 U.S. 570 (2008) ............................................3, 4, 5, 9, 13

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

Lewis v. United States, 445 U.S. 55 (1980) ........................................................................ 4

New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) .........................2, 5

Pitsilides v. Barr, 128 F.4th 203 (3d Cir. 2025) .......................................................... 11, 12

Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024)............................................. 10, 11

Rehaif v. United States, 588 U.S. 225 (2019) ................................................................... 15

United States v. Cockerham, 162 F.4th 500 (5th Cir. 2025) .......................................... 11, 12

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) ........................................................ 10

United States v. Duarte, 137 F.4th 743 (9th Cir. 2025) ....................................................8, 9

United States v. Dubois, 139 F.4th 887 (11th Cir. 2025) ..................................................8, 9

United States v. Hernandez, 159 F.4th 425 (5th Cir. 2025) ............................................... 12

United States v. Hunt, 123 F.4th 697 (4th Cir. 2024) ......................................................8, 9

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024) ............................ 6, 8, 9, 10, 13, 14

United States v. Jackson, 121 F.4th 656 (8th Cir. 2024) ............................................... 13, 14

United States v. Jackson, 69 F.4th 495 (8th Cir 2023)......................................................... 6

United States v. Langston, 110 F.4th 408 (1st Cir. 2024) .................................................... 8

United States v. Mitchell, 160 F.4th 169 (5th Cir. 2025) .............................................. 11, 12

United States v. Rahimi, 602 U.S. 680 (2024)..................................................... 2, 5, 13, 14

United States v. Seiwert, 152 F.4th 854 (7th Cir. 2025) .................................................... 10

iv

United States v. Watson, No. 24-2432, 2026 WL 905433 (7th Cir. Apr. 2, 2026) ......... 10, 12

United States v. Williams, 113 F.4th 637 (6th Cir. 2024).................................. 10, 12, 13, 14

Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025) .........................................................8, 9

Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025)........................................................... 8, 9, 10

Statutes

1 W. & M., ch. 2, § 7..................................................................................................... 3

18 U.S.C. § 922(g)(1)..............................................1, 2, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15

18 U.S.C. § 922(g)(8)..................................................................................................... 5

18 U.S.C. § 925(c) ....................................................................................................... 14

28 U.S.C. § 1254 ........................................................................................................... 1

28 U.S.C. § 1291 ........................................................................................................... 1

Other Authorities

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 (2018) ............................... 15

U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses (May 2025) .......... 15

Rules

Sup. Ct. R. 13 ............................................................................................................... 1

Constitutional Provisions

U.S. Const. amend. II ................................................................................................1, 3

Session Laws

An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757 (1961) 4

Federal Firearms Act, Pub. L. 75-785, 52 Stat. 1250 (1938) .........................................3, 4

Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197. 4

v

Legislative History

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

Delinquency of the Senate Comm. on the Judiciary, 89th Cong. 41 (1965) ..................... 4

v

PETITION FOR WRIT OF CERTIORARI

Merwin Smith respectfully petitions the Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Eighth Circuit.

OPINION BELOW

The panel opinion of the court of appeals was unpublished. It is available on Westlaw

at 2026 WL 183684 and is reprinted in the Appendix to the Petition (“Pet. App.”) at 1a-2a.

JURISDICTION

Petitioner invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1).

The Eighth Circuit had jurisdiction under 28 U.S.C. § 1291. It entered its opinion and

judgment on January 23, 2026, and Petitioner did not seek rehearing or en banc review.

Therefore, this petition is timely under Sup. Ct. R. 13.

RELEVANT PROVISIONS

The Second Amendment states: “A well regulated Militia, being necessary to the

security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

U.S. Const. amend. II.

18 U.S.C. § 922(g)(1) states: “It shall be unlawful for any person— (1) who has been

convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

. . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce,

any firearm or ammunition; or to receive any firearm or ammunition which has been shipped

or transported in interstate or foreign commerce.”

1

INTRODUCTION

This case presents an issue which impacts millions of Americans and has produced

significant disagreement among the courts of appeal: whether the federal government may

permanently bar anyone who has been convicted of a felony from possessing a firearm,

without any consideration for the nature or age of the disqualifying prior offense.

Following New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) and

United States v. Rahimi, 602 U.S. 680 (2024), the Third, Fifth, Sixth, and Seventh Circuits have

re-evaluated whether 18 U.S.C. § 922(g)(1), the federal felon-in-possession law, can be

constitutionally applied to every individual who has been convicted of an offense “punishable

by imprisonment for a term exceeding one year.” Those four circuits have concluded that the

law is subject to as-applied challenges, while the Second, Fourth, Eighth, Ninth, Tenth, and

Eleventh Circuits have held that § 922(g)(1) is constitutional in all of its applications.

This Court should grant the petition to resolve the disagreement between the circuits,

provide certainty for criminal defendants, and prevent the years of litigation which will result

if this disagreement is allowed to persist.

This Court should also grant the petition to correct the decision below. Lower courts

that have rejected as-applied challenges—including the Eighth Circuit, where Petitioner’s

conviction was affirmed—have misapplied Bruen and Rahimi in this context. Those

precedents demonstrate that the government should not have been able to disarm or prosecute

Petitioner without first proving his dangerousness or establishing that, based on his particular

prior convictions, there was an analogous tradition of disarmament at the time of the

Founding.

2

STATEMENT OF THE CASE

I.

Legal Background 1

The Second Amendment protects a pre-existing right to keep and bear arms. District of

Columbia v. Heller, 554 U.S. 570, 592 (2008). In fact, a direct predecessor to the Second

Amendment can be found in the English Declaration of Rights—which secured, for certain

members of the English population, an individual right to “have Arms for their Defence[.]”

Id. at 593 (quoting 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441). Following the Glorious

Revolution, the right to keep and bear arms became “fundamental” for all English subjects;

so, by the 1760s and 1770s, the Crown’s attempt to disarm inhabitants of the most rebellious

colonies provoked “polemical reactions by Americans[.]” Id. at 593-94.

After the Revolution, Americans sought more enduring protections for their rights; to

that end, the federal Constitution was amended in 1791 to provide that “the right of the people

to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

With the Second Amendment in place, Founding-era legislatures avoided broad, classbased disarmament provisions which targeted felons: indeed, “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).

However, Congress abruptly switched course during the New Deal era. In 1938, our

legislature criminalized the receipt of firearms by individuals with certain criminal

convictions. See Federal Firearms Act, Pub. L. 75-785, ch. 850, § 2(f), 52 Stat. 1250, 1251

(1938). That law—the Federal Firearms Act—was narrower than the modern-day

This legal background—and some of the other content in this petition—was adapted from a prior

petition filed by counsel in United States v. Tracy Jenkins, No. 25-5925, cert denied, 223 L. Ed. 2d 249

(U.S. Nov. 24, 2025).

1

3

disarmament provision in 18 U.S.C. § 922(g)(1); it only applied to those who received a

firearm after having been convicted of a “crime of violence,” including murder, manslaughter,

rape, mayhem, kidnapping, burglary, housebreaking, and certain kinds of aggravated assault.

Id. at § 1(6).

It wasn’t until 1961 that Congress passed a law prohibiting the receipt of firearms by

anyone who had been convicted of a crime “punishable by imprisonment for a term exceeding

one year.” See An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, § 2, 75

Stat. 757, 757 (1961). Lawmakers of that era held the widespread but erroneous view that

“the right to bear arms . . . relates only to the maintenance of the militia.” Federal Firearms

Act: Hearings Before the Subcomm. to Investigate Juvenile Delinquency of the Senate

Comm. on the Judiciary, 89th Cong. 41 (1965) (statement of Attorney General Katzenbach).

As a result, Congress took an “expansive legislative approach” in order to keep arms from

“potentially irresponsible persons, including convicted felons.” Lewis v. United States, 445 U.S.

55, 61 (1980); Barrett v. United States, 423 U.S. 212, 220 (1976). By 1968, our legislature had

expanded the Federal Firearms Act to criminalize the possession—as opposed to the receipt—

of firearms and ammunition 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.

District of Columbia v. Heller debunked the myth that the Second Amendment only

guarantees a collective, militia-based right to bear arms. See 554 U.S. at 595. However, the

Heller Court also emphasized, in dicta, that, “nothing in our opinion should be taken to cast

doubt on longstanding prohibitions on the possession of firearms by felons and the mentally

ill[.]” Id. at 626. Calling these prohibitions “presumptively lawful,” id. at n.26, Heller assured

4

readers that “there will be time enough to expound upon the historical justifications for the

exceptions we have mentioned if and when those exceptions come before us.” Id. at 635.

Fourteen years later, New York State Rifle & Pistol Association, Inc. v. Bruen adopted a

two-step test to identify laws which unconstitutionally restrict the Second Amendment right

to bear arms. 597 U.S. 1, 17 (2022). Under step one, courts consider whether the text of the

Second Amendment encompasses conduct that the challenged law proscribes; for “when the

Second Amendment’s plain text covers an individual’s conduct, the Constitution

presumptively protects that conduct.” Id. And, if a law restricts protected conduct, the

government “must demonstrate that the regulation is consistent with this Nation’s historical

tradition of firearm regulation.” Id. If the government cannot establish “relevantly similar”

historical analogue, the challenged law is unconstitutional. Id. at 29.

This Court used the Bruen test to evaluate the constitutionality of a federal criminal

statute in United States v. Rahimi, 602 U.S. 680 (2024). That case addressed the

constitutionality of 18 U.S.C. § 922(g)(8), which disarms individuals who are subject to a

restraining order containing a finding that they present a “credible threat” to the physical

safety of another. 18 U.S.C. § 922(g)(8). Ultimately, the Rahimi Court found that § 922(g)(8)

was facially constitutional, noting that two historical analogues (surety laws and “going

armed” laws) could be read together to establish a tradition confirming that “[w]hen an

individual poses a clear threat of physical violence to another, the threatening individual may

be disarmed.” 602 U.S. 680 at 698.

Rahimi referenced Heller’s dicta on presumptive lawfulness. Id. at 699. However, it did

not address the propriety of status-based disarmament provisions other than 18 U.S.C.

§ 922(g)(8). See id. at 702 (“In Heller, McDonald, and Bruen, this Court did not undertake an

5

exhaustive historical analysis . . . of the full scope of the Second Amendment. Nor do we do

so today.” (internal quotations and citation omitted)).

The Eighth Circuit, which includes the District where Petitioner committed his

offense, applied Bruen to 18 U.S.C. § 922(g)(1) in United States v. Jackson, 69 F.4th 495 (8th Cir

2023), vacated by 2024 WL 3768055 (8th Cir. Aug. 8, 2024) (“Jackson I”). Jackson I found that

§ 922(g)(1) was constitutional in all of its applications; however, that opinion was vacated and

remanded for further consideration in light of Rahimi. See Jackson v. United States, No. 23-6170,

144 S. Ct. 2710 (U.S. July 2, 2024).

Three days after resubmission, the Eighth Circuit issued an opinion which held, again,

that § 922(g)(1) was constitutional. United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024), rh’g

pet. denied, 121 F.4th 656 (8th Cir. 2024), pet. for cert. denied, 145 S. Ct. 2708 (U.S. May 19,

2025) (“Jackson II”). Like Jackson I, Jackson II held that “there is no need for felony-by-felony

litigation regarding the constitutionality of § 922(g)(1).” Id. at 1125. The opinion relied heavily

on Heller’s dicta about the presumptive lawfulness of felon-in-possession laws. See id. at 1125,

1128-29. And it reasoned that because legislatures “traditionally employed status-based

restrictions to disqualify categories of persons from possessing firearms . . . . Congress acted

within the historical tradition when it enacted § 922(g)(1)[.]” Id. at 1129.

However, four other Circuits read the Heller—and historical record—very differently.

As discussed below, those circuits refused to shut the door on all Second Amendment

challenges to § 922(g)(1): they allow as-applied challenges in cases like Petitioner’s.

II.

Factual and Procedural History

Petitioner Merwin Smith was charged with a violation of 18 U.S.C. § 922(g)(1) after

police officers found a pistol strapped between his shoulder blades. Pet. App. 1a. Prior to trial,

6

he filed an objection asserting that his prosecution “violate[d] the Second Amendment.” Dist.

Ct. Dkt. 93 at 1.2 He argued that his conduct—carrying a 9mm Smith & Wesson—was

protected under Second Amendment despite the fact that his criminal history included three

felony convictions for possession of a controlled substance, two felony convictions for

tampering with a motor vehicle, two felony convictions for possessing a firearm as a felon,

and one felony conviction for resisting arrest. Id. at 1-3; see also Dist. Ct. Dkt. 125 at 6-20

(Presentence Investigation Report).

Petitioner acknowledged, in his initial objection, that his challenge was foreclosed by

the Eighth Circuit’s decision in Jackson I. Dist. Ct. Dkt. 93 at 1. The District Court agreed; it

overruled the objection and the case proceeded to trial. Dist. Ct. Dkt. 142 at 74. Following

Petitioner’s conviction, the District Court imposed a sentence of 120 months in custody,

followed by a 2-year term of supervised release. Pet. App. at 4a-5a.

On appeal, Petitioner argued that 18 U.S.C. § 922(g)(1) was “facially unconstitutional

and unconstitutional as applied.” Pet. C.A. Br. at 31 (8th Cir. Nov. 22, 2024). He again

acknowledged that his claims were foreclosed, this time by Jackson II. See id. at 31. However,

Petitioner emphasized that the Eighth Circuit’s case law was out-of-step with the law from

other circuits, argued that only dangerous felons could be constitutionally disarmed, and

emphasized that, in his case, the government had not made any showing of dangerousness.

Id. at 33, 41.

The Eighth Circuit’s response was brief: it concluded, in a single sentence, that it was

required to reject Petitioner’s claims under Jackson II. Pet. App. at 2a. Thus, the judgment of

the District Court was affirmed. Id.

2

“Dist. Ct. Dkt.” refers to the docket in United States v. Smith, No. 4:22-cr-00167-SEP (E.D. Mo.).

7

REASONS FOR GRANTING THE WRIT

I.

The courts of appeal are divided over the constitutionality of 18 U.S.C. § 922(g)(1).

Even after Rahimi, the circuit courts of appeal are openly split over the constitutionality

of 18 U.S.C. § 922(g)(1). There is significant disagreement about whether the statute is

susceptible to as-applied challenges and, if so, how lower courts should evaluate those

challenges. Unless this Court intervenes, it will be impossible to reach a consensus; each side

has marshalled this Court’s case law in support of its position and each side claims that its

approach is supported by historical tradition.

A.

Six circuits hold that § 922(g)(1) is constitutional every case.

The Second, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits have held that

§ 922(g)(1) is constitutional in every application. All of those courts relied on the dicta in Heller

to support their holdings. See Zherka v. Bondi, 140 F.4th 68, 73, 93-94 (2d Cir. 2025), cert.

denied, No. 25-269, 2026 WL 135708 (U.S. Jan. 20, 2026); United States v. Hunt, 123 F.4th

697, 703-05 (4th Cir. 2024), cert. denied, No. 24-6818, 145 S. Ct. 2756 (U.S. June 2, 2025);

Jackson, 110 F.4th at 1125; United States v. Duarte, 137 F.4th 743, 750-52 (9th Cir. 2025) (en

banc), cert. denied, No. 25-425, 2026 WL 135692 (U.S. Jan. 20, 2026); Vincent v. Bondi, 127

F.4th 1263, 1265 (10th Cir. 2025), cert. denied, No. 24-1155, 2026 WL 568283 (U.S. Mar. 2,

2026); United States v. Dubois, 139 F.4th 887, 890-94 (11th Cir. 2025), cert. denied, No. 25-6281,

2026 WL 135685 (U.S. Jan. 20, 2026). 3 Thus, the dicta in Heller has taken on a talismanic

quality, short-circuiting the Bruen analysis and bolstering the claim that that felon-in-

The First Circuit has also relied upon Heller’s dicta to deny a Second Amendment challenge

to § 922(g)(1), although that case was decided under a plain error standard. See United States

v. Langston, 110 F.4th 408, 419-20 (1st Cir. 2024), cert. denied, No. 24-5795, 145 S. Ct. 581

(U.S. Nov. 18, 2024).

3

8

possession laws are universally constitutional, even though Heller acknowledged that this

Court had not conducted the historical vetting required to decide the issue. 554 U.S. at 635.

The Tenth Circuit’s decision in Vincent v. Bondi is a good example of this trend. Vincent

reasoned that pre-Bruen case law “relied on Heller’s instruction that felon dispossession laws

are presumptively valid,” concluded that Rahimi “reaffirmed” this “instruction” and, for that

reason, found that prior precedent upholding § 922(g)(1) had not been abrogated. 127 F.4th

at 1265. Without license to re-examine its prior case law, the Tenth Circuit found itself bound

to uphold § 922(g)(1) against an as-applied challenge—and, indeed, against all as-applied

challenges. Id. at 1266.

The Tenth Circuit was not alone in concluding that Bruen and Rahimi did not abrogate

prior case law upholding 18 U.S.C. § 922(g)(1); the Fourth and Eleventh Circuits reached the

same conclusion. See Hunt, 123 F.4th at 704 (“Bruen and Rahimi . . . provide no basis for a

panel to depart from this Court's previous rejection of the need for any case-by-case inquiry

about whether a felon may be barred from possessing firearms”); Dubois, 139 F.4th at 894

(“We require clearer instruction from the Supreme Court before we may reconsider the

constitutionality of section 922(g)(1).”).

The Fourth Circuit did not rely solely on its prior precedent; like the Second, Eighth,

and Ninth Circuits, it attempted to apply the two-step Bruen test. See Hunt, 123 F.4th at 70508; Zherka, 140 F.4th at 75-91; Jackson, 110 F.4th at 1126-29; Duarte, 137 F.4th at 752-61. At

step two, all four of these courts supported their holdings by citing to pre- and postRevolutionary laws which disarmed groups seen as dangerous or non-law-abiding. Hunt, 123

F.4th at 705-08; Zherka, 140 F.4th at 84-91; Jackson, 110 F.4th at 1126-28; Duarte, 137 F.4th

at 759-61. As the Second Circuit explained in Zherka,

9

English, American colonial, and early American histories abound with

examples of laws demonstrating that legislatures had broad authority to

regulate firearms, including by disarming large classes of people based on their

status alone. Religious minorities, political dissenters, Native Americans, and

persons of color were among the disfavored groups that historical legislatures

disarmed based on a perception that persons in those categories were inherently

dangerous or non-law-abiding.

140 F.4th at 85. The Eighth Circuit—the first court to address this issue after Rahimi—did not

think it made any difference whether those actions were characterized as “restrictions on

persons who deviated from legal norms” or restrictions on “persons who presented an

unacceptable risk of dangerousness”; whatever the case may have been, said the Eighth

Circuit, those laws were analogous enough to conclude that “Congress acted within the

historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms

by felons.” Jackson, 110 F.4th at 1129.

B.

Following Rahimi, four circuits have allowed as-applied challenges to

§ 922(g)(1).

In contrast, Third, Fifth, and Sixth, and Seventh Circuits have refused to foreclose asapplied challenges to 18 U.S.C. § 922(g)(1). See Range v. Attorney General, 124 F.4th 218, 232

(3d Cir. 2024) (en banc); United States v. Diaz, 116 F.4th 458, n.4 (5th Cir. 2024), cert. denied,

No. 24-6625, 145 S. Ct. 2822 (U.S. June 23, 2025); United States v. Williams, 113 F.4th 637,

663 (6th Cir. 2024); United States v. Watson, No. 24-2432, 2026 WL 905433, at *1 (7th Cir.

Apr. 2, 2026). Two of these courts have found § 922(g)(1) unconstitutional as applied and two

have not; however, all agree that Bruen and Rahimi require a “fresh look” at § 922(g)(1).

Watson, 2026 WL 905433, at *4 (quoting United States v. Seiwert, 152 F.4th 854, 861 (7th Cir.

2025)); see also Range, 124 F.4th at 225 (holding that Bruen abrogated prior case law addressing

the constitutionality of 18 U.S.C. § 922(2)(1)); Diaz, 116 F.4th at 465 (same); Williams, 113

F.4th at 647-48 (same).

10

The Third Circuit was the first to find 18 U.S.C. § 922(g)(1) unconstitutional as

applied. Sitting en banc, it enjoined the enforcement of § 922(g)(1) against Bryan Range, who

wanted to purchase a gun despite his conviction for making a false statement to obtain food

stamps. Range, 124 F.4th at 222-23, 232. At step one of the Bruen analysis, the court found

that Range and his proposed conduct were “protected by the Second Amendment.” Id. at 228.

At step two, the court acknowledged a “tradition of disarming people who pose a clear threat

of physical violence[.]” Id. at 230 (cleaned up). However, it found that Range’s disarmament

was not part of this tradition because there was “no evidence that he poses a physical danger

to others or that food-stamp fraud is closely associated with physical danger.” Id. 4

The Fifth Circuit found § 922(g)(1) unconstitutional as applied in two cases: United

States v. Cockerham, 162 F.4th 500 (5th Cir. 2025) and United States v. Mitchell, 160 F.4th 169

(5th Cir. 2025). Cockerham had a prior conviction for failure to pay child support; a

conviction which, the Fifth Circuit reasoned, was part of a historical tradition which allowed

for the incarceration (and concomitant disarmament) of debtors but allowed for release (and

rearmament) once their debts were paid. 162 F.4th at 504. Given that Cockerham “was no

longer delinquent and had fully paid the child support debt for which he was convicted at the

time he was found in possession of a firearm,” the Fifth Circuit found “no historical

justification to disarm him[.]” Id. at 504, 506.

Mitchell had a prior conviction for felony possession of a firearm by an unlawful user

of a controlled substance. Mitchell, 160 F.4th at 174. At the time of that conviction, evidence

showed that Mitchell was a habitual marijuana user; however, there was no evidence that he

The Third Circuit has since clarified that, in its view, “disarmament is justified as long as a felon

continues to present a special danger of misusing firearms.” Pitsilides v. Barr, 128 F.4th 203, 210 (3d

Cir. 2025) (cleaned up).

4

11

was ever actively intoxicated while in possession of a firearm. Id. at 193-94. Those facts

mattered because the Fifth Circuit identified “intoxication laws” as the historical tradition

which came closest to supporting Mitchell’s disarmament. Id. at 192. Intoxication laws

banned individuals under the influence from carrying firearms; however, those laws involved

temporary rather than permanent disarmament and, as a result, were not sufficiently

analogous to § 922(g)(1) as it applied in this context. Id. at 193. Mitchell’s conviction was

unconstitutional. Id. at 195.

C.

There is significant methodological division among the circuits that allow

as-applied challenges.

The Fifth Circuit has been clear about its approach to evaluating as-applied challenges:

it focuses on the “nature of the predicate offense rather than on the defendant’s broader

criminal history or individual characteristics.” Cockerham, 162 F.4th at 507 (quoting United

States v. Hernandez, 159 F.4th 425, 428 (5th Cir. 2025)). The Seventh Circuit also appears to

have adopted this approach. See Watson, 2026 WL 905433, at *10-11 (focusing on the

defendant-appellant’s predicate convictions in order to resolve the appeal). In contrast,

however, the Third and Sixth Circuits have held that courts must examine “‘each individual’s

specific characteristics,’ which ‘necessarily requires considering the individual’s entire

criminal record—not just the predicate offense for purposes of § 922(g)(1).’” Pitsilides, 128

F.4th at 211 (quoting Williams, 113 F.4th at 657-58). There is, therefore, a “split-within-asplit”: a methodological dispute which can also be resolved if the Court grants certiorari.

D.

Without intervention, division will only continue to grow.

To recap, six circuits have rendered § 922(g)(1) immune to Second Amendment

challenges, and have relied on this Court’s dicta in order to do so. Four circuits have refused

to defer blindly to § 922(g)(1): two permit as-applied challenges, although they have not yet

12

encountered a meritorious one, and two have found § 922(g)(1) unconstitutional as applied.

This state of affairs shows that the circuits are a long way from finding consensus: without

this Court’s intervention, these conflicts will only become more deeply entrenched.

II.

The decision below was wrong.

The Eighth Circuit decided Petitioner’s appeal based on Jackson II, an opinion that

overreads Heller and misapplies the Bruen test.

Heller never purported to immunize § 922(g)(1) from review, yet Jackson II intimated

otherwise. See 110 F.4th at 1125 (“The Supreme Court has said that nothing in District of

Columbia v. Heller . . . should be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons . . . . Given these assurances by the Supreme Court, and the

history that supports them, we conclude that there is no need for felony-by-felony litigation

regarding the constitutionality of § 922(g)(1).”). That was wrong: “Making the leap from

presumptively constitutional to always constitutional, like Jackson II does, is too much for that

overused line to bear, no matter how you read it.” United States v. Jackson, 121 F.4th 656, 658

(8th Cir. 2024) (Stras, J., dissenting from the denial of rehearing en banc). After all, “a

measure can be presumptively constitutional and still have constitutionally problematic

applications.” Id. And “applying Heller’s dicta uncritically would be at odds with Heller itself,

which stated courts would need to ‘expound upon the historical justifications’ for firearmpossession restrictions when the need arose.” Williams, 113 F.4th at 648 (quoting Heller, 554

U.S. at 635).

Of course, Jackson II did not only rely on the dicta in Heller; it purported to apply the

Bruen test. However, its analysis was incomplete: Bruen instructed courts to ask “how” and

“why” a challenged regulation burdens the Second Amendment right to bear arms. Rahimi,

13

602 U.S. at 692. Jackson II did not account for how severely § 922(g)(1) burdens that right.

Indeed, the Eighth Circuit failed to reckon with the law’s defining feature: a lifetime ban on

possessing any firearm, without exception. 5 See Jackson, 121 F.4th at 660 (Stras, J., dissenting).

Such an extreme burden has no parallel in our tradition: as Rahimi noted, comparable

disarmament laws were “of limited duration” and were not permanent. 602 U.S. at 699.

Jackson II also watered down the second part of the Bruen analysis, which looks at the

“why” behind firearm restrictions. After examining historical analogues which targeted

disfavored groups, Jackson II concluded that “legislatures traditionally employed status-based

restrictions to disqualify categories of persons from possessing firearms.” 110 F.4th at 1129.

But, by operating at such a high level of generality, Jackson II gave “deference to Congress’s

blanket determination that a group numbering in the tens of millions and ranging from

murderers to ketchup-bottle tamperers categorically presents an unacceptable risk of danger

if armed.’” Jackson, 121 F.4th at 660 (Stras, J., dissenting) (cleaned up). Such deference is a

threat to our liberty, which each member of this Court acknowledged in Rahimi. See 602 U.S.

at 772-73 (Thomas, J., dissenting).

So, by failing to pay sufficient attention to “how” or “why,” Jackson II played fast and

loose with our fundamental rights. The opinion below, which affirmed Petitioner’s

conviction, added nothing to Jackson II and did not shore up any of its faults. This Court

should grant certiorari to correct these errors and provide the guidance that lower courts

clearly need.

There is a statutory provision, 18 U.S.C. § 925(c), which allows “[a] person who is prohibited from

possessing, shipping, transporting, or receiving firearms or ammunition [to] make application to

the Attorney General for relief from the disabilities imposed by Federal laws[.]” However, “Congress

hasn’t funded the program in decades.” Williams, 113 F.4th at 661. And even if there were a robust

§ 925(c) program, a law preventing individuals from exercising their core constitutional rights does

not become permissible simply because the government has the discretion to allow exceptions.

5

14

III.

This case is a good vehicle to address an issue which impacts millions of Americans.

Confusion over § 922(g) is no minor thing, because that law is “no minor provision.”

Rehaif v. United States, 588 U.S. 225, 239 (2019) (Alito, J., dissenting). Millions of Americans

have felony convictions. See 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,

1808 (2018). They are all disqualified from possessing firearms on pain of imprisonment.

In fact, the government prosecuted nearly 7,500 cases under § 922(g) in fiscal year

2024, and over 90% of those prosecutions were brought “because of a prior felony

conviction.” U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses, 1 (May

2025). Without any certainty over the status of § 922(g)(1), many of those prosecuted under

§ 922(g)(1) will seek review of their convictions. And, though most lower courts have

addressed the law’s constitutionality, there is no indication that they will be able to resolve

their disagreements without intervention; as a result, litigation will continue until this Court

speaks definitively.

This case is the right vehicle to address whether 18 U.S.C § 922(g)(1) is susceptible to

as-applied challenges. Petitioner raised a Second Amendment claim at each stage of his case,

so there are no standard-of-review or preservation issues. In addition, Petitioner did not object

to the description of his criminal history in the Presentence Investigation Report, so there is a

clear record of his individualized circumstances and criminal history. This Court can—and

should—correct the injustice wrought in this case.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

15

Respectfully submitted this 21st day of April, 2026,

_____________________________

Melissa K. Goymerac

Assistant Federal Public Defender

1010 Market Street, Suite 200

St. Louis, Missouri 63101

Telephone: (314) 241-1255

Fax: (314) 421-3177

E-mail: Melissa_Goymerac@fd.org

Attorney For Petitioner

16