Petition for Writ of Certiorari — United States, Petitioner v. Kevin LaMarcus Mitchell
Supreme Court briefFeb 5, 2026
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No. XX-XX
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
KEVIN LAMARCUS MITCHELL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
D. JOHN SAUER
Solicitor General
Counsel of Record
A. TYSEN DUVA
Assistant Attorney General
SARAH M. HARRIS
Deputy Solicitor General
VIVEK SURI
Assistant to the
Solicitor General
TORY D. ROBERTS
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether 18 U.S.C. 922(g)(1), the federal statute that
prohibits the possession of a firearm by a person who
has been convicted of a crime punishable by imprisonment for a term exceeding one year, violates the Second
Amendment as applied to a defendant with a predicate
conviction under 18 U.S.C. 922(g)(3), which prohibits
the possession of a firearm by an unlawful user of a controlled substance.
(I)
RELATED PROCEEDINGS
United States District Court (S.D. Miss.):
United States v. Mitchell, No. 23-cr-154
(Nov. 22, 2024)
United States Court of Appeals (5th Cir.):
United States v. Mitchell, No. 24-60607
(Nov. 21, 2025)
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 1
Reasons for granting the petition ............................................... 4
Conclusion ..................................................................................... 6
Appendix A — Court of appeals opinion (Nov. 21, 2025)...... 1a
Appendix B — District court order denying motion to
dismiss (Apr. 29, 2024) .............................. 51a
(III)
In the Supreme Court of the United States
No. XX-XX
UNITED STATES OF AMERICA, PETITIONER
v.
KEVIN LAMARCUS MITCHELL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a50a) is reported at 160 F.4th 169. The order of the district court (App., infra, 51a-55a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
November 21, 2025. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Respondent “has an extensive criminal history.”
App., infra, 2a. In 2016, soon after he turned 18 years
old, he was convicted in Mississippi state court of assault with a weapon, after an incident in which he is alleged to have repeatedly hit a woman in the head with a
pistol. Presentence Investigation Report (PSR) ¶ 55.
In 2017, he was again convicted of assault, this time
(1)
2
based on an incident involving domestic violence. PSR
¶ 62. He was also convicted of resisting arrest, providing false information to a law-enforcement officer, and
four counts of trespassing. PSR ¶¶ 56-61.
In 2018, state police officers arrested respondent on
outstanding warrants. PSR ¶ 63. During a search, the
police found a bag of marijuana and a pistol that had
been reported stolen. Ibid. Respondent later pleaded
guilty to a federal charge of possessing a firearm as an
unlawful user of a controlled substance, in violation of
18 U.S.C. 922(g)(3). Ibid. He was sentenced to 21
months of imprisonment, to be followed by three years
of supervised release. Ibid.
After his release from prison, respondent resumed
his pattern of violent conduct. For example, the police
responded to a complaint in May 2020 that he assaulted
and choked his girlfriend; another complaint in August
that he again choked his girlfriend, who was nine
months pregnant; a third complaint in September that
he repeatedly struck the mother of his newborn child;
and a fourth complaint in October that he had choked
the mother, pulled out her hair, and threatened to shoot
and kill her. See Gov’t C.A. Br. 5. The district court
revoked respondent’s supervised release and sentenced
him to six months of imprisonment, to be followed by 24
months of supervision. See id. at 6. After he completed
that prison term, he again engaged in domestic violence.
See ibid. The court again revoked his supervised release and sentenced him to 11 months of imprisonment.
See id. at 7.
2. In 2023, after his release from prison, respondent
once more resumed his criminal conduct. PSR ¶ 16. State
police, while arresting respondent on a charge of vehicle
theft, found two handguns in respondent’s home. PSR
3
¶¶ 16-18. A federal grand jury indicted respondent for
possessing a firearm as a convicted felon, in violation of
18 U.S.C. 922(g)(1). App., infra, 1a. The indictment
rested on respondent’s earlier conviction under Section
922(g)(3) for possessing a firearm as an unlawful user of
a controlled substance. Ibid.
The district court denied respondent’s motion to dismiss the indictment, rejecting his contention that Section 922(g)(1) violates the Second Amendment. App.,
infra, 51a-55a. Respondent pleaded guilty but reserved
the right to appeal the denial of the motion to dismiss
the indictment. Id. at 4a. The court sentenced respondent to 64 months of imprisonment, to be followed by
three years of supervised release. Judgment 2-3.
3. A divided panel of the Fifth Circuit reversed.
App., infra, 1a-50a.
The court of appeals concluded that Section 922(g)(1)
violates the Second Amendment as applied to respondent. App., infra, 8a-46a. The court observed that, under its precedent, Section 922(g)(3)—the statute underlying respondent’s predicate conviction—violates the
Second Amendment as applied to someone who was not
intoxicated at the time of the offense. Id. at 14a-16a (citing United States v. Connelly, 117 F.4th 269 (5th Cir.
2024)). The court then extended that precedent to a
Section 922(g)(1) charge based on a predicate conviction
under Section 922(g)(3). Id. at 41a-43a. Because the
court found insufficient evidence that respondent was
intoxicated at the time of either “his § 922(g)(1) offense”
or the predicate “§ 922(g)(3) offense,” the court invalidated Section 922(g)(1) as applied to him. Id. at 42a43a. The court rejected the government’s argument
that Section 922(g)(1) is analogous to historical laws disarming categories of dangerous individuals, reasoning
4
that “[t]he government identifies no class of persons at
the Founding who were ‘dangerous’ for reasons comparable to marijuana users.” Id. at 31a (quoting Connelly,
117 F.4th at 278).
Judge Haynes dissented. App., infra, 47a-50a. In her
view, respondent did not adequately preserve his asapplied challenge in district court, so the claim should
be reviewed only for plain error. Id. at 47a. She also
found it “clear” from the evidence that respondent was
intoxicated “at the time of his initial felony” and “when
he committed the offense that is the subject of this
case.” Ibid. Finally, she noted that respondent’s “conduct during supervised release”—which “can and
should be considered because it is part of his initial felony”—“shows his dangerousness.” Id. at 48a.
REASONS FOR GRANTING THE PETITION
This case presents the question whether Section
922(g)(1) violates the Second Amendment as applied to
a defendant with a predicate conviction under Section
922(g)(3). This Court is considering Section 922(g)(3)’s
constitutionality in United States v. Hemani, cert.
granted, No. 24-1234 (oral argument scheduled for Mar.
2, 2026). The Court should hold the petition for a writ
of certiorari in this case pending the resolution of Hemani. If appropriate, the Court should then grant certiorari in this case, vacate the court of appeals’ judgment, and remand the case for further consideration.
That course is warranted because there is a “reasonable probability that the decision below rests upon a
premise that the lower court would reject if given the
opportunity for further consideration” in light of Hemani. Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per
curiam). Specifically, the decision below rests on the
premise that Section 922(g)(3)—and, by extension, a
5
Section 922(g)(1) charge based on a Section 922(g)(3)
predicate—is constitutional only as applied to someone
who was “intoxicated at the time” of the offense. App.,
infra, 43a. The decision also rests on the premise that
“ ‘dangerousness’ is not the governing test for disarmament.” Id. at 30a.
The government is arguing in Hemani that, contrary
to the Fifth Circuit precedents invoked in the decision
below, Section 922(g)(3) is valid as applied to habitual
unlawful drug users even if the users were not under
the influence of drugs while possessing the firearms.
See Gov’t Br. at 17-35, Hemani, supra (No. 24-1234). It
is also arguing that the Second Amendment permits
Congress to temporarily restrict the possession of firearms by certain categories of dangerous individuals.
See id. at 12-16. If this Court accepts those arguments,
the Fifth Circuit would need to revisit its analysis. Recognizing as much, Judge Haynes stated in her dissent
that Hemani “will be very meaningful in deciding issues
that are relied upon by the majority opinion” and that
“it makes great sense at a minimum to place this case in
abeyance so we can review what the Supreme Court
holds in Hemani.” App., infra, 50a.
The court of appeals stated in a footnote that, “[e]ven
if Hemani disagrees with [the Fifth Circuit’s] interpretation of § 922(g)(3), that would not affect the outcome
here.” App., infra, 42a. The issue in Hemani, however,
is not the “interpretation” of Section 922(g)(3); it is the
statute’s constitutionality as applied to individuals who
were not under the influence of drugs while possessing
firearms. This Court’s resolution of that issue plainly
could affect the outcome of this case.
6
CONCLUSION
This Court should hold the petition for a writ of certiorari pending the resolution of United States v. Hemani,
cert. granted, No. 24-1234 (oral argument scheduled for
Mar. 2, 2026). If appropriate, the Court should then
grant the petition, vacate the court of appeals’ judgment,
and remand the case for further consideration in light of
Hemani.
Respectfully submitted.
D. JOHN SAUER
Solicitor General
A. TYSEN DUVA
Assistant Attorney General
SARAH M. HARRIS
Deputy Solicitor General
VIVEK SURI
Assistant to the
Solicitor General
TORY D. ROBERTS
Attorney
FEBRUARY 2026
APPENDIX
TABLE OF CONTENTS
Page
Appendix A — Court of appeals opinion (Nov. 21, 2025) ... 1a
Appendix B — District court order denying motion to
dismiss (Apr. 29, 2024) ........................... 51a
(I)
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 24-60607
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
KEVIN LAMARCUS MITCHELL,
DEFENDANT-APPELLANT
Filed:
Nov. 21, 2025
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:23-CR-154-1
Before ELROD, Chief Judge, and CLEMENT and
HAYNES , Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
This case is about whether the Second Amendment
protects a habitual marijuana user from being permanently dispossessed of a firearm based on our Nation’s
historical tradition of firearm regulation. On November 28, 2023, Kevin LaMarcus Mitchell was charged with
possession of a firearm as a felon in violation of 18 U.S.C.
§ 922(g)(1) based on his prior conviction under 18 U.S.C.
§ 922(g)(3) for unlawful possession of a controlled substance while possessing a firearm. He moved to dismiss the indictment, raising several constitutional chal(1a)
2a
lenges to § 922(g)(1), including one under the Second
Amendment and N.Y. State Rifle & Pistol Ass’n, Inc. v.
Bruen, 597 U.S. 1 (2022). The district court denied his
motion, and Mitchell pleaded guilty and was sentenced.
On appeal, he brings five separate constitutional challenges. Because Mitchell’s § 922(g)(1) conviction is unconstitutional as applied to him, we REVERSE the district court’s denial of his motion to dismiss and VACATE the judgment of conviction and sentence.
I
Mitchell has an extensive criminal history that began
after he turned 18. He also was convicted for felony possession of a firearm by an unlawful user of a controlled
substance under § 922(g)(3). Mitchell’s § 922(g)(3) offense forms the predicate offense for his § 922(g)(1) offense, which bars convicted felons from possessing firearms. Each offense is addressed in turn.
A
On April 6, 2018, at the age of nineteen, Mitchell was
arrested for outstanding warrants by the Pascagoula
Police Department. A search of the vehicle in which he
was arrested revealed a loaded .40 caliber pistol and a
small bag of marijuana. Mitchell admitted to being a
drug user but denied ownership of the drugs and the
firearm recovered in the vehicle. He later admitted
over a recorded jail call that the firearm, which had been
reported as stolen, was in his possession. Based on
these admissions, Mitchell pleaded guilty to possessing
a firearm as an unlawful user in violation of § 922(g)(3),
a felony offense. He was sentenced to twenty-one
months of imprisonment, followed by three years of supervised release.
3a
At the time of his § 922(g)(3) offense, Mitchell admitted to smoking three marijuana cigarettes per day. 1
His Presentence Investigation Report (“PSR”) in that
case noted that he “admitted to being a drug user, stating that he has used marijuana the past three years.”
He later tested positive for marijuana while on supervised release in March 2022.
Following his release from prison for his § 922(g)(3)
offense, Mitchell engaged in a series of domestic violence acts and other criminal conduct. Yet none of
these acts culminated in a felony charge against him.
B
On November 27, 2023, Mitchell was arrested by a
Federal Bureau of Investigation (“FBI”) task force on
an outstanding warrant for unrelated charges of auto
theft and flight from an officer charged by the Moss
Point, Mississippi, Police Department. When executing that warrant, agents found a 9-millimeter handgun
and a 9-millimeter Berretta in the room Mitchell occupied. On November 28, 2023, a criminal complaint was
filed by the government in the United States District
Court for the Southern District of Mississippi against
Mitchell for violating § 922(g)(1)’s bar on being a felon
in possession of a firearm. The predicate offense was
his § 922(g)(3) conviction.
At the time of his § 922(g)(1) offense, Mitchell admitted to smoking marijuana daily. While on supervised
release, Mitchell tested positive for marijuana on two
occasions. In his initial appearance in this case, he also
1
We take judicial notice of Mitchell’s § 922(g)(3) case information. See In re Deepwater Horizon, 934 F.3d 434, 440 (5th Cir.
2019).
4a
submitted a urine sample that tested presumptive positive for marijuana.
Before trial, Mitchell moved to dismiss the indictment, raising several constitutional challenges. The
government opposed the motion. The district court denied his motion in April 2024.
Mitchell pleaded guilty subject to a conditional plea
agreement. He reserved the right to appeal the district court’s denial of his motion to dismiss the indictment on Second Amendment grounds. The district court
sentenced Mitchell to sixty-four months of imprisonment, to be followed by a three-year term of supervised
release. Mitchell timely appealed.
II
On appeal, we review a district court’s denial of a motion to dismiss an indictment de novo. United States v.
Kay, 513 F.3d 432, 440 (5th Cir. 2007). We also review
preserved constitutional challenges de novo. United
States v. Branson, 139 F.4th 475, 477 (5th Cir. 2025). If
the constitutional challenge was not raised below, we
will review it for plain error. Id. “Plain error exists if
(1) there is an error, (2) the error is plain, (3) the error
affects substantial rights, and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Howard, 766 F.3d
414, 419 (5th Cir. 2014) (cleaned up). An error is not
plain if it is subject to reasonable debate. Puckett v.
United States, 556 U.S. 129, 135 (2009).
III
Mitchell raises five challenges to the district court’s
denial of his motion to dismiss, arguing that § 922(g)(1)
is unconstitutional because it (1) violates the Second
5a
Amendment as applied to him, (2) facially violates the
Second Amendment, (3) is vague, (4) exceeds Congress’s
authority under the Commerce Clause, and (5) violates
the Equal Protection Clause. The central legal question before us today is whether § 922(g)(1) is unconstitutional as applied to Mitchell’s § 922(g)(3) predicate offense.
A
Before we assess the merits of his Second Amendment as-applied challenge, we must first arm ourselves
with the proper standard of review.
To begin, we acknowledge that the “distinction between as-applied and facial challenges is sometimes
hazy.” United States v. Perez, 43 F.4th 437, 443 (5th
Cir. 2022). For us, the nature of the question frames
our inquiry: “An as-applied challenge asks whether a
law—though constitutional in some circumstances—‘is
nonetheless unconstitutional as applied to [a defendant’s] activity.’ ” United States v. Morgan, 147 F.4th
522, 526 (5th Cir. 2025), reh’g en banc denied, No. 2430561 (5th Cir. Oct. 20, 2025) (alteration in original)
(quoting Spence v. Washington, 418 U.S. 405, 414 (1974)
(per curiam)). A facial challenge, on the other hand,
asks whether “the law is unconstitutional in all of its applications.” Id. (quoting Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 449 (2008)).
Though there is no bright-line rule “for determining
whether a matter was raised below,” to preserve a challenge on appeal, the party intending to do so “must press
and not merely intimate the argument during the proceedings before the district court.” United States v.
Hearns, 845 F.3d 641, 648 (5th Cir. 2017).
6a
For as-applied challenges to § 922(g)(1), we have
found them preserved in cases where the defendant
simply referenced an “as-applied” challenge in his motion to dismiss, and the district court, in turn, analyzed
it. In United States v. Zinnerman, for example, we
held that a defendant preserved his as-applied challenge
because he insisted in his motion to dismiss that
§ 922(g)(1) was unconstitutional “as applied to [him],”
and the district court analyzed it. No. 24-30310, 2025
WL 984605, at *2 (5th Cir. Apr. 2, 2025) (per curiam),
cert. denied, No. 25-5090, 2025 WL 2824238 (U.S. Oct. 6,
2025). We have since embraced Zinnerman with open
arms in recent decisions to find preservation of asapplied challenges to § 922(g)(1). See, e.g., United
States v. Reyes, 141 F.4th 682, 685-86 (5th Cir. 2025)
(per curiam) (concluding defendant preserved his as-applied challenge in his motion to dismiss by “[a]rguing
that § 922(g)(1) is unconstitutional both ‘as applied’ to
him and on its face,” and the district court stated that
Bruen did not render § 922(g)(1) unconstitutional); Morgan, 147 F.4th at 526-27 (finding that, while “a close
call,” defendant preserved his challenge because he “explicitly stated in his district court filings that § 922(g)(1)
was unconstitutional ‘as-applied,’ ” and “the district
court recognized” it).
In his motion to dismiss, Mitchell explicitly asserted
that § 922(g)(1) “violates the Second Amendment . . .
and is unconstitutional as applied to him” under controlling precedent. See Reyes, 141 F.4th at 685; Morgan,
147 F.4th at 526. He developed this theory in greater
detail in his memorandum in support of dismissal. The
district court, too, explicitly acknowledged Mitchell’s
“as-applied” challenge in its order denying his motion to
dismiss. See Morgan, 147 F.4th at 526 (noting “the dis-
7a
trict court’s order . . .
applied’ challenge”).
referenced [Morgan’s] ‘as-
The district court, by all measures and accounts, engaged in a cursory treatment of Mitchell’s Second
Amendment challenge under Bruen—one that neither
identified nor analyzed the operation and effect of his
§ 922(g)(3) predicate offense. Of course, the district
court’s lack of discussion could highlight concerns about
whether Mitchell raised sufficient arguments to preserve his as-applied challenge on appeal. See Int’l
Women’s Day March Plan. Comm. v. City of San Antonio, 619 F.3d 346, 356 (5th Cir. 2010) (finding only a facial challenge preserved where the record was bereft “of
any explicit reference to an as-applied challenge”). But
those concerns are mitigated in this case because Mitchell and the district court each acknowledged that Mitchell was pressing a Second Amendment as-applied challenge to § 922(g)(1). We find such explicit nods enough
to preserve Mitchell’s as-applied challenge on appeal.
See Morgan, 147 F.4th at 526.
Moreover, unlike Morgan and Reyes, where the government contested that the defendant did not preserve
his as-applied challenge, the government did not mount
such a challenge against Mitchell. Cf. Morgan, 147
F.4th at 526-27; Reyes, 141 F.4th at 685-86 n.7. In fact,
the government seemingly agreed that Mitchell preserved an as-applied challenge to § 922(g)(1) in its response brief before it walked away from that position after oral argument. Of course, this court, “not the parties, determine[s] [its] standard of review.” United
States v. Rosenthal, 805 F.3d 523, 528 (5th Cir. 2015).
But the government’s position is a salient factor. Agreement, though not dispositive, is a helpful clue to us.
8a
For these reasons, we first hold that Mitchell preserved his as-applied challenge to § 922(g)(1), see United
States v. Penn, 969 F.3d 450, 459 (5th Cir. 2020), and
therefore de novo review applies, Branson, 139 F.4th at
477.
B
Next, we turn to Mitchell’s Second Amendment asapplied challenge. His main argument on appeal is
that the government failed to proffer relevantly similar
historical analogues to justify permanent disarmament
under § 922(g)(1) as applied to Mitchell’s § 922(g)(3)
predicate offense. The government, by contrast, focuses on Mitchell’s overall purported dangerousness
and history of recidivism to justify his firearm dispossession.
We begin, as always, with the constitutional text. 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. As part of our constitutional system, “the right to keep and bear arms is
among the ‘fundamental rights necessary to our system
of ordered liberty.’ ” United States v. Rahimi, 602 U.S.
680, 690 (2024) (quoting McDonald v. Chicago, 561 U.S.
742, 778 (2010)). Though the right to bear arms is vital
to ordered liberty, this right is not “unlimited.” District
of Columbia v. Heller, 554 U.S. 570, 626 (2008). Because
it “codified a pre-existing right, . . . pre-existing
limits on that right are part and parcel of it.” Rahimi,
602 U.S. at 737 (Barrett, J., concurring).
Supreme Court and Fifth Circuit precedent fashion a
two-step method for evaluating Second Amendment
9a
challenges. Bruen, 597 U.S. at 17; United States v. Diaz,
116 F.4th 458, 466-67 (5th Cir. 2024), cert. denied, 145
S. Ct. 2822 (2025). First, does the “plain text” of the Second Amendment cover an individual’s conduct? Bruen,
597 U.S. at 17. If yes, “the Constitution presumptively
protects that conduct,” and we move to the next step in
the analysis. Id. Second, is the regulation “consistent
with this Nation’s historical tradition of firearm regulation” such that its application is constitutionally justified? Id. If the regulation comports with our Nation’s historical tradition, “a court [can] conclude that
the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ” Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Essential to Step Two are two “central” sub-questions: “why” and “how” a regulation burdens the right.
Id. at 29 (emphasis omitted). The “why” teaches that “if
laws at the founding regulated firearm use to address
particular problems, that will be a strong indicator that
contemporary laws imposing similar restrictions for
similar reasons fall within a permissible category of regulations.” Rahimi, 602 U.S. at 692. The “how,” by contrast, carefully signals that “a law . . . may not be
compatible with the right if it [regulates arms-bearing]
. . . beyond what was done at the founding,” “[e]ven
when a law regulates arms-bearing for a permissible
reason.” Id.
The government bears the heavy burden to show that
the challenged law is “ ‘relevantly similar’ to laws that
our tradition is understood to permit.” Id. (quoting
Bruen, 597 U.S. at 29). As part of that obligation, the
government must locate and expand upon “historical
precursors,” id., and “well-established and representa-
10a
tive historical analogue[s],” Bruen, 597 U.S. at 30, to
justify the challenged law’s constitutionality. Because
this test requires digging into our Nation’s history and
tradition of firearm regulation, courts must rely on a mix
of “analogical reasoning and sound judgment” to determine whether a “conceptual fit exists between the old
law and the new.” United States v. Connelly, 117 F.4th
269, 274 (5th Cir. 2024). The government need not put
forth a “dead ringer” or “historical twin” for a challenged law “to pass constitutional muster,” Bruen, 597
U.S. at 30 (emphasis in original)—because, as we know
well from the Supreme Court’s recent guidance, “a law
[is not] trapped in amber,” Rahimi, 602 U.S. at 691.
In the Second Amendment context, the text and history principle, which underpins Bruen’s test, traces its
origins to Heller, where Justice Scalia, writing for the
Court, employed a “textual analysis” to discover and unlock the “normal and ordinary . . . meaning” of the
Second Amendment. Heller, 554 U.S. at 576, 578. The
Court in Heller reviewed the District of Columbia’s ban
on the possession of handguns. Id. at 574-75. “Putting all of these textual elements together,” to derive the
original meaning of the Second Amendment, the Court
indicated that the Amendment’s operative clause—“the
right of the people to keep and bear Arms . . . shall
not be infringed”—“guarantee[s] the individual right to
possess and carry weapons in case of confrontation.”
Id. at 592. The Court also canvassed the history, which
“confirmed” its textual conclusions about the core of the
right, id., as well as its limit, id. at 626-28. What the text
said, history confirmed.
With text and history in hand, Bruen imported Heller’s method into its formulated test and applied it to
11a
New York’s proper-cause requirement for carrying a
handgun. There, the Court held “the Second and Fourteenth Amendments protect an individual’s right to carry
a handgun for self-defense outside the home” and reviewed the degree to which New York’s public-carry licensing regime burdened that right by issuing licenses
“only when an applicant demonstrate[d] a special need
for self-defense.” 597 U.S. at 10-11. Thus, Bruen
concluded that the government did not “identify an
American tradition justifying the State’s proper-cause
requirement.” Id. at 70.
Next, in Rahimi, the Court reviewed a facial challenge to § 922(g)(8), which prohibits an individual subject to a domestic violence restraining order from possessing a firearm. 602 U.S. at 684-86. After reviewing the historical tradition of surety and “going armed”
laws, the Court held that, if “an individual poses a clear
threat of physical violence to another, the threatening
individual may be disarmed” under the Second Amendment. Id. at 698.
Since Bruen, the Supreme Court has not yet addressed
how its test interacts with § 922(g)(1) challenges. An
entrenched circuit split has now emerged about its
proper application. The Fourth, Eighth, Ninth, Tenth,
and Eleventh Circuits, for example, have upheld the categorical application of § 922(g)(1) to all felons. E.g.,
United States v. Jackson, 110 F.4th 1120, 1129 (8th Cir.
2024) (concluding that “legislatures traditionally employed status-based restrictions to disqualify categories
of persons from possessing firearms,” so “Congress
acted within the historical tradition when it enacted
§ 922(g)(1) and the prohibition on possession of firearms
12a
by felons”), cert. denied, 145 S. Ct. 2708 (2025). 2 In
contrast, the Fifth Circuit, along with the First, Second,
Third, Sixth, and Seventh Circuits, has concluded that
§ 922(g)(1) might be unconstitutional as applied to some
felons. E.g., Diaz, 116 F.4th at 458 (rejecting an as-applied challenge because the defendant’s underlying felony was relevantly similar to a death-eligible felony at
the Founding). 3 At this juncture, we are bound by
Diaz.
See also United States v. Hunt, 123 F.4th 697, 707-08 (4th Cir.
2024) (rejecting an as-applied challenge on a categorical basis);
United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025) (en banc)
(“Today, we . . . hold that § 922(g)(1) is not unconstitutional as
applied to non-violent felons.”); Vincent v. Bondi, 127 F.4th 1263,
1265-66 (10th Cir. 2025) (rejecting an as-applied challenge because
neither Bruen nor Rahimi abrogated circuit precedent foreclosing
such a challenge); United States v. Dubois, 94 F.4th 1284, 1293
(11th Cir. 2024) (holding that Bruen did not abrogate circuit precedent foreclosing such challenges), cert. granted, judgment vacated, 145 S. Ct. 1041 (2025).
3
See also United States v. Langston, 110 F.4th 408, 419-20 (1st
Cir. 2024) (rejecting an as-applied challenge because there was no
“plain” error); United States v. Caves, No. 23-6176, 2024 WL 5220649,
at *1 (2d Cir. Dec. 26, 2024) (same); Range v. Att’y Gen., 124 F.4th
218, 222-23 (3d Cir. 2024) (en banc) (holding that § 922(g)(1) is unconstitutional as applied to a felon who was convicted of making a
false statement to secure food stamps); United States v. Williams,
113 F.4th 637, 661-62 (6th Cir. 2024) (rejecting an as-applied challenge because the defendant’s criminal record showed that he was
sufficiently dangerous to justify disarmament); United States v.
Gay, 98 F.4th 843, 846-47 (7th Cir. 2024) (assuming without deciding that an as-applied challenge could generally proceed but rejecting the defendant’s specific challenge because his prior felonies encompassed aggravated battery of a peace officer and possession of
a weapon while in prison).
2
13a
In Diaz, this court reviewed a facial and as-applied
challenge to § 922(g)(1). There, Diaz had an extensive
criminal history, but the court noted that, for purposes
of analyzing his “predicate offenses under § 922(g)(1),”
it could consider only “prior convictions that are ‘punishable by imprisonment for a term exceeding one
year.’ ” Id. at 467 (quoting § 922(g)(1)). Diaz’s relevant
history included his felonies: vehicle theft, evading arrest, and possessing a firearm as a felon. Id. His additional criminal history, including charges for possession of a controlled substance that were later dismissed,
as well as his misdemeanor conviction for possession of
less than two ounces of marijuana, were “not relevant”
to the analysis. Id.
In arguing for the existence of a historical tradition
of permanent disarmament of felons, the government
identified two categories of regulations: (1) laws authorizing capital punishment and estate forfeiture as
penalties for felonies and (2) laws targeting the crime of
theft, which was a felony at the Founding and was punished accordingly. Id. at 467-68. After reviewing
these analogues, the court held that, while the plain text
of the Second Amendment covered Diaz’s conduct prohibited by § 922(g)(1), disarming a person with Diaz’s
criminal history of theft was consistent with the Nation’s
historical tradition of firearm regulation. Id. at 466-72.
“[I]f capital punishment was permissible to respond to
theft,” the court reasoned, “then the lesser restriction of
permanent disarmament that § 922(g)(1) imposes is also
permissible.” Id. at 469. Diaz also recognized that it
did “not foreclose future as-applied challenges by defendants with different predicate convictions.” Id. at
470 n.4. Moreover, because § 922(g)(1) was constitu-
14a
tional as applied, his facial challenge necessarily failed.
Id. at 471-72.
The upshot of Diaz for our circuit precedent was twofold. First, it defined the relevant scope of inquiry for
an as-applied challenge to § 922(g)(1): a court may consider only crimes punishable by a term of imprisonment
exceeding one year for predicate offenses. Second, it
left the door open for § 922(g)(1) to be unconstitutional
as applied to some felons.
1
With this general framework established, we turn
now to our circuit precedent for as-applied challenges to
§ 922(g)(3) and § 922(g)(1). We first survey our developing precedent for as-applied challenges to § 922(g)(3)
offenses. Two cases are instructive for us. Each are
addressed in turn.
In Connelly, this court reviewed a facial and as-applied challenge to § 922(g)(3) by Connelly, who was a
non-violent, marijuana-smoking gunowner. 117 F.4th
at 272. There, the El Paso police went to Connelly’s
home in response to a “shots fired” call, and they found
her husband at the neighbor’s door firing a shotgun.
Id. Police arrested him and spoke to Connelly, who
suggested that “she would at times smoke marijuana as
a sleep aid and for anxiety.” Id. After police conducted a sweep of Connelly’s home and recovered drug
paraphernalia and firearms, including firearms owned
by Connelly, she was charged with violating § 922(g)(3).
Id. There was no evidence she was intoxicated at the
time of her offenses. Id.
Connelly moved to dismiss her charges on facial and
as-applied grounds, and the district court granted her
15a
motion. Id. On appeal, the government identified
three “buckets” of historical analogues to justify
§ 922(g)(3)’s constitutionality as applied to her: (1)
laws disarming the mentally ill, (2) laws disarming dangerous individuals, and (3) intoxication laws. Id. at
274-75. The court considered and rejected each in turn.
Id. at 275.
Connelly first held that our history and tradition surrounding laws disarming the mentally ill did not address
a problem comparable to § 922(g)(3) because habitual
marijuana users, like Connelly, were not “permanently
impaired in a way comparable to severe mental illness.”
Id. at 275, 277. It next held that our history and tradition did not support finding that Connelly, a non-violent
marijuana user, was “dangerous” to justify disarmament, as the evidence did not show that the “Founders
authorized Congress to disarm anyone it deemed dangerous.” Id. at 277 (emphasis in original). Rather,
the analogues were “based in part on concerns for public
safety,” that were linked with political and religious motivations. Id. at 278.
Finally, the court concluded that, while our Nation’s
history and tradition surrounding intoxication laws addressed a comparable problem to § 922(g)(3), “they do
not impose a comparable burden on the right holder.”
Id. at 281. In other words, they shared the same “why”
but not the same “how.” Id. At most, the court concluded, our history and tradition support “a ban on carrying firearms while an individual is presently under the
influence.” Id. at 282 (emphasis in original). Applied to
Connelly, since there was no evidence that she was intoxicated during her § 922(g)(3) offense, regulating her
“habitual or occasional drug use” would “impose[] a far
16a
greater burden on her Second Amendment rights than
our history and tradition of firearms regulation can support.” Id. We also found § 922(g)(3)’s language—“unlawful user”—acutely problematic because “there is a
substantial difference between an actively intoxicated
person and an ‘unlawful user’ under § 922(g)(3).” Id.
“Stunningly,” Connelly wrote, “an inference of ‘current
use’ can be drawn even from ‘a conviction for use or possession of a controlled substance within the past year.’ ”
Id. (quoting 27 C.F.R. § 478.11). At bottom, Connelly
concluded that Bruen’s mandate to deploy “analogical
reasoning” from our historical tradition could not
“stretch that far.” Id. We affirmed the dismissal of
Connelly’s as-applied challenge and reversed as to her
facial challenge because there are scenarios where
§ 922(g)(3) could be constitutionally applied in a case,
such as banning presently intoxicated persons from carrying firearms. Id. at 282-83.
Connelly illustrates two general principles in this
area of law. First, § 922(g)(3) is not facially unconstitutional because our Nation’s historical tradition supports firearm regulations disarming presently intoxicated individuals. Id. at 282. Second, § 922(g)(3) is unconstitutional when used to disarm an individual solely
“based on habitual or occasional drug use.” Id.
In United States v. Daniels, this court embraced Connelly as “largely” controlling of its outcome. 124 F.4th
967, 971 (5th Cir. 2025), petition for cert. filed, No. 241248 (U.S. June 5, 2025). There, a jury found Daniels
to be an “unlawful user” in violation of § 922(g)(3). Id. at
970. But when placed side by side, Daniels presented “a
closer case” than Connelly. Id. at 975. Daniels “went
to trial,” where the facts suggested that he “was often
17a
intoxicated while transporting weapons.” Id. at 975.
At trial, Daniels admitted to using marijuana “roughly
half the days of each month,” and he was twice spotted
“with guns” and marijuana “in his truck.” Id. In fact,
at the time of his offense, the marijuana in his truck was
“burnt,” i.e., “used,” and “he had a loaded handgun
within arm’s length and a loaded rifle in the back seat.”
Id.
Unlike Connelly, who admitted to occasional marijuana use before bed, Daniels seemingly drove “around
town while intoxicated with loaded guns in his car.” Id.
Yet the jury instructions stated that to find that Daniels
was an “unlawful user,” the jury did not need to find
“that he used the controlled substance at the precise
time he possessed the firearm” since “[s]uch use is not
limited to the use of drugs on a particular day, or within
a matter of days or weeks before.” Id. (alteration in
original). Rather, “the jury was instructed that it need
only find ‘that the unlawful use has occurred recently
enough to indicate that the individual is actively engaged in such conduct.’ ” Id. For this reason, the jury
instruction “doom[ed] Daniel’s conviction” because the
jury “did not necessarily find that Daniels had even used
marihuana ‘within a matter of . . . weeks before’ his
arrest, but only that his use ‘occurred recently enough’
to indicate Daniels was ‘actively engaged’ in unlawful
use.” Id. (alteration in original). Since the jury did
not find that Daniels was necessarily intoxicated at the
time of his offense, we held that § 922(g)(3) was unconstitutional as applied to him. Id. at 975-76. Critically,
what Connelly held about § 922(g)(3), Daniels reaffirmed: “disarming individuals solely for their prior,
occasional, or habitual marihuana use does not” reflect
18a
our Nation’s “history of firearm regulations.”
979.
Id. at
Along the way to its disposition, Daniels made “a few
tentative observations gleaned from recent precedent”
about whether § 922(g)(3) could be applied to defendants
who were not presently intoxicated or under the influence of a controlled substance while possessing a firearm. Id. at 976.
First, our circuit has not embraced a “blanket analogy between all drug users and the mentally ill,” but instead has suggested in dicta “that gun restrictions could
be constitutionally applied to ‘someone whose mental illness is so severe that she presents a danger to herself
and others.’ ” Id. (quoting Connelly, 117 F.4th at 277).
We have clarified that, if the government could show
that a defendant’s use of drugs “was so frequent, severe,
and impairing as to render him analogous to the dangerously mentally ill, disarming him under § 922(g)(3)
might find support in the historical tradition of confining and disarming mental patients.” Id. (emphases
added); see also Connelly, 117 F.4th at 277 (noting the
government “might succeed if it were able to demonstrate that [the defendant]’s drug use was so regular
and heavy that it rendered her continually impaired”).
But that has not yet happened.
Second, our Nation’s historical intoxication laws
might also justify “some applications of § 922(g)(3),” but
that would require “facts admitted by a defendant or
proven at trial.” Daniels, 124 F.4th at 976. Daniels
suggested that the degree of “[s]pecificity in jury instructions will likely be crucial here,” as “requiring jurors to find a tight temporal nexus between an individual’s drug use and his possession of firearms could bring
19a
§ 922(g)(3)’s application closer in line with historical
laws targeting the presently intoxicated, the mentally
ill, or those who pose a danger to others.” Id.
In concurrence, JUDGE HIGGINSON construed Connelly as adopting a contemporaneity rule—that a §
922(g)(3) conviction is constitutional when “the temporal
nexus is one of contemporaneity—meaning the jury
found that the defendant possessed a firearm while
presently (that is, actively) using controlled substances
unlawfully.” Id. at 980 (Higginson, J., concurring).
The majority rejected that bright-line rule, suggesting
that it “relies on an unduly narrow reading of Connelly
and an understandable but unwarranted aversion to letting Second Amendment doctrine develop more fully as
more cases involving different fact patterns arise.” Id.
at 978. Instead, the majority emphasized that Connelly should be read more broadly for the following
view: “ ‘[t]he history and tradition before us support, at
most, a ban on carrying firearms while an individual is
presently under the influence.’ ” Id. at 977 (alteration
and emphasis in original) (quoting Connelly, 117 F.4th
at 282). Daniels concluded that a “piecemeal approach
to laws such as § 922(g)(3), determining the contours of
acceptable prosecutions through the resolution of continual as-applied challenges, is what Bruen and Rahimi
require.” Id. at 978; see also William Baude & Robert
Leider, The General-Law Right to Bear Arms, 99
NOTRE DAME L. REV. 1467, 1511 (2024) (“Exactly where
in between to draw the line [in § 922(g)(1) cases] is something the courts are currently debating and would eventually resolve in common-law fashion.”).
Third, if the government puts forth “historical laws
disarming the mentally ill or the intoxicated,” the anal-
20a
ogies to § 922(g)(3) “will likely find stronger footing if
the government can establish a connection between the
defendant’s active or regular drug use and violent or
dangerous conduct.” Daniels, 124 F.4th at 976. Daniels noted that, while the government’s dangerousness
analogues in Connelly failed, it addressed only two categories of laws and regulations: “laws barring political
dissidents from owning guns during periods of conflict
and laws disarming religious minorities.” Id. at 976-77
(citing Connelly, 117 F.4th at 277-79). Daniels left
open the possibility that, in a future case with different
facts, “the government could attempt to establish that a
defendant’s frequent or recent drug use renders him
presumptively dangerous because laws throughout our
nation’s history have aimed ‘to keep guns out of the
hands of presumptively risky people.’ ” Id. at 976
(quoting United States v. Veasley, 98 F.4th 906, 915-16
(8th Cir. 2025)).
Since Connelly, our court has considered the historical nexus between drug trafficking and dangerousness.
In United States v. Kimble, for example, we held that
§ 922(g)(1) was constitutional as applied to Kimble, who
had been convicted of two drug-trafficking felonies.
142 F.4th 308, 318 (5th Cir. 2025). These were deemed
dangerous felonies. Id. Kimble recognized that the
government’s analogues were relevantly similar to the
Nation’s history and tradition of disarming those with
past criminal conduct that “evinces a special danger
of misusing firearms,” so Kimble’s conviction under
§ 922(g)(1) “accords with the Second Amendment because Congress can categorically disarm individuals
convicted of violent felonies like drug trafficking.” Id.
at 314, 318. The court stressed the narrowness of its
ruling and explained that its conclusion did “not depend
21a
on an individualized assessment that Kimble is dangerous.” Id. at 318. Kimble did not “embrace the view
that courts should look beyond a defendant’s predicate
conviction and assess whether the felon’s history or
characteristics make him likely to misuse firearms.”
Id. (cleaned up). Instead, it reaffirmed Diaz: The
key “consideration is a defendant’s ‘prior convictions
that are punishable by imprisonment for a term exceeding one year,’ not unproven conduct charged contemporaneously with a defendant’s (g)(1) indictment or prior
conduct that did not result in a felony conviction.” Id.
(quoting 116 F.4th at 467).
2
We turn next to our precedent for as-applied challenges to a § 922(g)(1) with a § 922(g)(3) predicate offense.
In United States v. Contreras, this court considered
a facial and as-applied challenge to § 922(g)(1) where
Contreras had one underlying predicate conviction: a
§ 922(g)(3) offense. 125 F.4th 725, 728-33 (5th Cir. 2025).
In 2020, Contreras was twice caught possessing less than
two ounces of marijuana, leading to two misdemeanor
convictions. Id. at 727. The next year, he was sentenced in federal court to twenty-four months of imprisonment and three years of supervised release for being
an unlawful user in possession of a firearm in violation
of § 922(g)(3). Id. He began serving his term of supervised release for that offense in 2022, but a few
months later, detectives began investigating his social
media, where they saw he possessed a handgun in violation of his firearm prohibition. Id. at 727-28. By
March 2023, detectives applied for a warrant, saw him
commit a traffic violation, and upon stopping him for
22a
that violation, “smelled marijuana coming from the car.”
Id. at 728. They also smelled marijuana on his person,
and they found “eight grams of marijuana, packaging, a
scale, marijuana residue scattered throughout, and a
loaded pink 9-millimeter Glock” in the vehicle. Id.
Detectives arrested him, and the government indicted
Contreras on one count of possession of a firearm by a
convicted felon under § 922(g)(1). Id. He moved to
dismiss, and the district court denied his motion. Id.
Contreras entered into a conditional plea agreement, affirming the government’s factual basis but reserving the
right to appeal the district court’s denial of his motion to
dismiss on Second Amendment grounds. Id. After
accepting his conditional plea and being sentenced, he
appealed. Id.
On appeal, this court rejected Contreras’s facial challenge on arrival as foreclosed by circuit precedent, id. at
729, and rejected his as-applied challenge for two reasons. The first ground was that the Nation’s history
and tradition of firearm regulations sufficiently supported “banning presently intoxicated persons from carrying weapons,” as Connelly had recognized in the context for § 922(g)(3). Id. at 731-32 (emphasis omitted)
(quoting Connelly, 117 F.4th at 282). Applying the
proper scope of inquiry under Diaz, Contreras reiterated that “the only pertinent offense” was Contreras’s
“user in possession of a firearm charge” under § 922(g)(3),
which was his only felony “predicate offense” underpinning his § 922(g)(1) conviction. Id. at 730. Though his
history included two additional offenses, they were
“misdemeanor offenses” and therefore not relevant.
Id. at 730 n.2. On review, Contreras rejected the government’s proposed historical analogues—that is, our
Nation has a history and tradition of punishing by death
23a
and estate forfeiture—as “too broad,” and not “analogous to the facts” underlying Contreras’s § 922(g)(3)
predicate offense. Id. at 731. But Contreras walked
through the door Connelly left open—that § 922(g)(3)
could be applied to “some sets of circumstances,” such
as individuals carrying firearms while actively intoxicated. Id. at 731-32 (quoting Connelly, 117 F.4th at
282). For example, Contreras had been actively under
the influence of marijuana while possessing a firearm at
the time of both his § 922(g)(3) and § 922(g)(1) offenses.
Id. at 733. After drawing on our Nation’s historical
tradition of intoxication laws temporarily disarming
individuals—the closest analogue, as explained by
Connelly—the Contreras court concluded “there is a
tradition of regulating Contreras’ predicate offense because he was intoxicated while he possessed the gun,”
id. at 732 (emphasis in original), and therefore “the challenged regulation is consistent with the principles that
underpin our regulatory tradition,” id. at 733 (quoting
Rahimi, 602 U.S. at 692).
The second ground was that our Nation’s historical
tradition supported disarming individuals while they
complete their sentences.
Id. at 732-33; see also
United States v. Goins, 118 F.4th 794, 805 (6th Cir. 2024)
(Bush, J., concurring in part) (“Limitations on the constitutional right to bear arms while on probation are
supported by our nation’s historical tradition of firearm
forfeiture laws, which temporarily disarmed persons
while they completed their sentences.”) (citing United
States v. Moore, 111 F.4th 266 (3d Cir. 2024)). Contreras, for example, was also on temporary supervised release for his § 922(g)(3) offense at the time of his
§ 922(g)(1) offense. 125 F.4th at 733. Other cases have
since upheld § 922(g)(1) as applied to individuals com-
24a
pleting their criminal sentences. See, e.g., United States
v. Giglio, 126 F.4th 1039, 1045 (5th Cir. 2025) (holding
that the government carried its burden in showing it
could deprive a defendant, who “at the time of his conviction, was serving a sentence for a prior conviction”).
C
Mitchell contends that the district court erred by failing to dismiss the indictment because § 922(g)(1) violates the Second Amendment as applied to him. Acknowledging that Bruen “fundamentally changed” Second Amendment challenges, Mitchell engages with its
two-part test. First, he argues the Second Amendment’s “plain text” covers possession of a firearm under
§ 922(g)(1). See Diaz, 116 F.4th at 467). Second, he
advances that the government has not satisfied its burden to warrant permanent disarmament.
In his engagement with Step Two, Mitchell contends
that the government has not identified a historical analogue “sufficient to permanently disarm” him. According to Mitchell, the government—in response to Mitchell’s motion to dismiss in the district court—premised its
opposition on the “clearly erroneous proposition that
nothing in Bruen altered the constitutionality of
§ 922(g)(1) and that his challenge was foreclosed because the Second Amendment does not apply to those
with felony convictions.” Mitchell recounts that the
government also nodded to another case from the Southern District of Mississippi that found § 922(g)(1) unconstitutional as applied, but otherwise “put forth no evidence” and instead rested “on now obsolete precedent
allowing for the categorical disarmament of those with
felony convictions.” The government, as Mitchell contends, did not pinpoint “the specific predicate felony”
25a
supporting disarmament under § 922(g)(1); rather, it
“broadly claimed” that laws disarming persons as “unvirtuous or untrustworthy—including Catholics in England, Native Americans and enslaved people in the early
colonies, and loyalists during the Revolutionary War”—
justified disarmament of anyone with a felony offense.
Such broad examples from our Nation’s history and tradition of firearm regulation, according to Mitchell, were
ultimately “insufficiently specific” to him. See Diaz,
116 F.4th at 467.
Mitchell also challenged the district court’s denial for
its purported failure “to individually analyze” his as-applied challenge under applicable Supreme Court and
Fifth Circuit precedent. See Spence, 418 U.S. at 414.
According to Mitchell, the district court should have
minimally applied “a Diaz analysis” and examined
whether his § 922(g)(3) predicate conviction warranted
permanent disarmament under § 922(g)(1). 4 The district court instead denied “Mitchell’s motion by adopting the reasoning . . . in its previous decisions, concerning defendants with different criminal histories and
prior predicate felonies.” See Diaz, 116 F.4th at 469
(“Simply classifying a crime as a felony does not meet
the level of historical rigor required by Bruen and its
progeny.”).
The Government argues that the district court properly denied Mitchell’s as-applied challenge to § 922(g)(1)
for two reasons.
First, the government highlights Mitchell’s “dangerousness.” Mitchell “repeatedly engage[d] in assaultive
4
We had not yet decided Diaz at the time the district court denied Mitchell’s motion to dismiss.
26a
conduct,” including “domestic violence . . . accompanied by the actual or threatened use of a weapon.”
The government points to the fact Mitchell pleaded
guilty to misdemeanor assault with a weapon in 2016.
While on supervised release after his federal firearms
conviction, Mitchell also reportedly “threaten[ed] to
shoot and kill” his child’s mother. Reviewing his “extensive history of violent behavior,” the government
reasons, provides a firm basis to reject his as-applied
challenge.
The government frames its dangerousness argument
around statements from the Supreme Court and Fifth
Circuit that hint at possible constitutional justifications
for disarmament. See, e.g., Rahimi, 602 U.S. at 698
(“When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”); United States v. Bullock, 123 F.4th 183, 185
(5th Cir. 2024) (“The historical record demonstrates
that legislatures have the power to prohibit dangerous
people from possessing guns.”) (per curiam) (cleaned
up). It also relies on decisions from the Third and
Sixth Circuits that consider “dangerousness” as a crucial factor in disarming individuals. See, e.g., Pitsilides
v. Barr, 128 F.4th 203, 211 (3d Cir. 2025) (“[C]ourts must
consider all factors that bear on a felon’s capacity to possess a firearm without posing such a danger.”); United
States v. Williams, 113 F.4th 637, 650 (6th Cir. 2024)
(“Historical evidence demonstrates that early English
kings and Parliament alike disarmed individuals they
deemed dangerous. An examination of colonial history
next reveals that residents of the New World carried on
this tradition.”).
27a
To connect those dots with the Nation’s historical tradition of firearm regulation, the government relies on
Founding-era weapon forfeitures laws—also known as
“going armed” laws—in support of Mitchell’s disarmament under § 922(g)(1). It also cites Rahimi, Diaz, and
Contreras to conclude that § 922(g)(1) “shares the ‘how’
(disarmament) and ‘why’ (deter criminal conduct, protect the public, and facilitate rehabilitation) of these historical regulations.” See Contreras, 125 F.4th at 733.
Second, the government argues that Mitchell’s “recidivism would not have been tolerated” during the time
of the Founding. Once again, it relies on his entire
criminal history to contend that his “dangerousness is
particularly appropriate here in the case of a defendant
who has repeatedly engaged in assaultive conduct and
whose recidivism would historically have been met with
harsh punishment.” For historical support, the government relies on United States v. Quiroz, 125 F.4th
713, 720 (5th Cir. 2025) (examining a 1748 Virginia statute that called for “the death penalty for a third offense
of stealing a hog”), and Diaz, 116 F.4th at 469 n.3 (noting
capital punishment for crimes). It also looks to secondary sources. See, e.g., James E. Robertson, Houses of
the Dead: Warehouse Prisons, Paradigm Change, and
the Supreme Court, 34 HOUS. L. REV. 1003, 1008 n.16
(1997) (recidivists were sometimes subject to execution
during Colonial era); John V. Jacobi, Prison Health,
Public Health: Obligations and Opportunities, 31 AM.
J.L. & MED. 447, 457 (2005) (“[R]ecidivists . . . were
dealt with brutally, by whippings and execution.”).
Considering these historical examples, the government
asks this court to “account [for] Mitchell’s entire record,
which is necessary to properly assess the extent of his
violent conduct.” See Williams, 113 F.4th at 657-68.
28a
The government concedes it did not marshal sufficient
historical support in opposing Mitchell’s motion to dismiss, but it maintains that it “may provide additional legal support for its arguments on appeal.” See Bullock,
123 F.4th at 185.
D
With the law behind us, we must now apply our test
to Mitchell.
1
At Step One, we must consider whether § 922(g)(1)
burdens conduct protected by the Second Amendment.
Diaz, 116 F.4th at 467. In Diaz, this court concluded
that convicted felons are among “the people” presumptively protected by the Second Amendment and held
that the “plain text of the Second Amendment covers the
conduct prohibited by § 922(g)(1).” Id. at 466-67; accord Morgan, 147 F.4th at 527. Here, § 922(g)(1) as applied to Mitchell “impinges upon a right” secured by the
Second Amendment and so it presumptively protects
him. Morgan, 147 F.4th at 527.
Before moving to Step Two, we must reaffirm our
proper scope of inquiry. Under our precedent, we consider “only those predicate offenses under § 922(g)(1)
that are ‘punishable by imprisonment for a term exceeding one year.’ ” Id. at 528 (quoting Kimble, 142 F.4th
at 310). “Other convictions, arrests, or conduct are ‘not
relevant’ ” for purposes of this court’s as-applied analysis under § 922(g)(1). Id. (quoting Diaz, 116 F.4th at
467); see also Kimble, 142 F.4th at 318 (“The [only] relevant consideration is a defendant’s ‘prior convictions
that are punishable by imprisonment for a term exceeding one year,’ not . . . prior conduct that did not re-
29a
sult in a felony conviction.” (quoting Diaz, 116 F.4th at
467)). We are bound by the scope defined in Diaz.
Here, despite Mitchell’s extensive criminal history,
his only prior felony conviction was § 922(g)(3). In
other words, his § 922(g)(3) conviction is the only predicate offense under his § 922(g)(1) offense. See Morgan,
147 F.4th at 528; see also Diaz, 116 F.4th at 467 (“[W]e
may consider prior convictions that are ‘punishable by
imprisonment for a term exceeding one year.’ ” (citation
omitted)). Mitchell’s state misdemeanor convictions
and conduct are therefore “not relevant” for our analysis. Diaz, 116 F.4th at 467; Morgan, 147 F.4th at 528.
Against the government’s request to “account [for]
Mitchell’s entire record, which is necessary to properly
assess the extent of his violent conduct,” we reject such
an invitation and instead confine our inquiry to Mitchell’s § 922(g)(3) conviction—the only predicate § 922(g)(1)
offense—based on the rule of orderliness. See Jacobs
v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir.
2008) (“It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel’s decision, absent an intervening change in
the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”).
To circumvent Diaz, the government urges us to focus on Mitchell’s “dangerousness” in assessing whether
§ 922(g)(1) can be constitutionally applied to him by consulting his entire criminal record, including his misdemeanors. It relies on Rahimi for the overarching constitutional principle that “[w]hen an individual poses a
clear threat of physical violence to another, the threatening individual may be disarmed,” 602 U.S. at 698, and
Bullock for the view that “[t]he historical record demon-
30a
strates that legislatures have the power to prohibit dangerous people from possessing guns,” 123 F.4th at 185.
In one sense, both statements are true. But Mitchell is
correct on the law in this circuit: “dangerousness” is not
the governing test for disarmament under § 922(g)(1).
For starters, Rahimi did not sweepingly proclaim
that “dangerousness” is the new standard for Second
Amendment challenges. 602 U.S. at 690. Rather, it
was concerned with a narrow question: “When a restraining order contains a finding that an individual
poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the
Second Amendment—be banned from possessing firearms while the order is in effect.” Id. After reviewing
the historical tradition of “surety and going armed laws,
which involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon,” the Court concluded that
§ 922(g)(8) “fits within our regulatory tradition.” Id. at
698-99. It noted that its opinion should not be read to
“suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a
special danger of misuse,” id. at 698 (citing Heller, 554
U.S. at 626), but that § 922(g)(8) “applies only once a
court has found that the defendant ‘represents a credible threat to the physical safety’ of another.” Id. at 69899 (quoting § 922(g)(8)); see also id. at 713-14 (Gorsuch,
J., concurring) (“[W]e do not decide today whether the
government may disarm a person without a judicial finding that he poses a ‘credible threat’ to another’s physical
safety . . . We do not resolve whether the government may disarm an individual permanently.”). The
Court concluded: “As applied to the facts of this case,
31a
[§] 922(g)(8) fits comfortably within [our Nation’s firearm regulation] tradition.” Id. at 690. Thus, Rahimi
did not attempt to swap or displace Bruen’s text, history, and tradition methodology with a new, amorphous
standard of dangerousness for Second Amendment challenges.
We have moreover not read Rahimi in the government’s proposed light. See Connelly, 117 F.4th at 277
(“Indeed, not one piece of historical evidence suggests
that, at the time they ratified the Second Amendment,
the Founders authorized Congress to disarm anyone it
deemed dangerous.” (emphasis in original)); id. at 278
(“The government identifies no class of persons at the
Founding who were ‘dangerous’ for reasons comparable
to marijuana users.”).
Failing to find support in
Rahimi, the government looks to Bullock to provide a
lifeline, but to no avail. In Bullock, we reviewed an asapplied challenge to § 922(g)(1) from a defendant who
had “numerous felony convictions.” 123 F.4th at 184.
Bullock had been convicted of aggravated assault and
manslaughter after an incident in which he “shot an unarmed bar bouncer,” unloaded a “barrage of bullets”
into a crowd nearby, and killed a nineteen-year-old bystander. Id. In examining his two felonies—aggravated assault and manslaughter—Bullock concluded
there was “no doubt . . . in this context” these felonies were “dangerous and violent crimes,” and therefore
justified dispossession under § 922(g)(1). Id. at 185.
To reach its conclusion, Bullock reiterated the fundamental point from Diaz—that we would review only
Bullock’s “underlying convictions,” which “stemmed
from the threat and commission of violence with a fire-
32a
arm.” Id. (citing Diaz, 116 F.4th at 470 n.5). For these
reasons, we find no tension between Bullock and Diaz.5
Without either Rahimi or Bullock to come to its rescue,6 the government looks to the Third and Sixth Circuits to support its dangerousness theory. Both circuits allow courts to examine a defendant’s entire record, including misdemeanors, to make a dangerousness
Of course, a defendant’s dangerousness can be viewed as a factor in an as-applied challenge under§ 922(g)(1), but only to the extent that it relates to an underlying predicate conviction. See
Bullock, 123 F.4th at 185. For example, this factor may be salient
when drug dealing and trafficking are combined with firearms.
See Kimble, 142 F.4th at 318 (holding that defendant’s “predicate
convictions for drug trafficking convey that he belongs to a class of
dangerous felons that our regulatory tradition permits legislatures
to disarm”); see also United States v. Yanez Soza, 513 F.3d 194, 202
(5th Cir. 2008)(crediting testimony that “drugs and guns are commonly found together and that drug dealers use guns to protect
their business because of the inherent violence of the trade”).
6
The government also cites to United States v. Isaac, No.
24-50112, 2024 WL4835243 (5th Cir. Nov. 20, 2024) (per curiam),
where a defendant’s § 922(g)(1) as-applied challenge was rejected
in a two-paragraph, unpublished opinion. There, defendant had
been convicted of the felony of aggravated assault with a deadly
weapon for firing multiple shots at someone. Id. at *1. He also
had been convicted of “deadly conduct” connected with an “incident
where he pointed a firearm at a mother picking up her son from
school,” which was “a misdemeanor because he did not discharge
his weapon.” Id. at *1 n.†. In rejecting his challenge, the court
observed that a defendant’s having “previously misused a firearm
in an attempt to harm another . . . fits easily within our Nation’s historical tradition of firearm regulation.” Id. at *1. As
Mitchell points out, while Issac flagged that the defendant was convicted for “firing multiple shots at someone,” id., it was connected
to the “manner and means of the offense itself, not to allegations in
prior criminal events not resulting in felony convictions.” Isaac
thus does not aid the government.
5
33a
assessment for purposes of as-applied challenges to
§ 922(g)(1). See Pitsilides, 128 F.4th at 212; Williams,
113 F.4th at 657-58. But we need not engage with
those cases because Diaz controls. Without further instruction from the Supreme Court or en banc court, we
are bound by our rule of orderliness. 7 Jacobs, 548 F.3d
at 378; Daniels, 124 F.4th at 974 n.6.
Despite the government’s reliance on Rahimi and
Bullock for its position, 8 those cases must be read in
proper context with Bruen and Diaz.
We point out that, if we were “writing on a blank slate . . .
a more individualized assessment of dangerousness might be appropriate when adjudicating as-applied challenges to § 922(g)(1).”
United States v. Mancilla, 155 F.4th 449, 552 (5th Cir. 2025) (Elrod, C.J., concurring). For example, the historical approach in
Williams, 113 F.4th at 663 (Thapar, J.)—which enables courts to
“evaluate a defendant’s entire criminal record” and “not just the
specific felony underlying” his § 922(g)(1) conduct—maybe more
consistent with the Nation’s historical tradition under Bruen.
Our hands are ultimately tied by Diaz, but it maybe worth revisiting its propriety in the future.
8
In one of its Rule 28( j) Letters, the government cites to United
States v. Allam, 140 F.4th 289 (5th Cir. 2025), for the proposition
that, when reviewing an as-applied challenge to a federal firearms
statute, this court needs to “analyze its application to the particular
circumstances of an individual.” See Allam, 140 F.4th at 295.
But such reliance is misplaced. Allam concerned a constitutional
challenge to 18 U.S.C. § 922(q)(2)(A), which prohibits possession of
a firearm within 1,000 feet from school grounds. Id. at 291. The
relevant scope of inquiry at issue here concerns felony predicates
underlying as-applied challenges to a § 922(g)(1) conviction. Diaz,
116 F.4th at 467.
7
34a
2
With the scope of inquiry established, we turn finally
to Step Two to see if our historical laws are relevantly
similar to § 922(g)(1) as applied here.
At the out set, the government argues that it did not
forfeit its argument that § 922(g)(1) fits within a historical tradition of firearm regulation. Mitchell pushes
back, arguing that, out of reverence for “the principle of
party presentation,” this court should reject the government’s effort on appeal to raise new arguments as to this
Nation’s firearm regulatory tradition and “limit its analysis to the historical analogues” offered by the government below. See Bruen, 597 U.S. at 25 n.6.
To begin, we find that the government did not forfeit
its argument. Notwithstanding the party presentation
principle and its centrality to the adversarial testing of
legal theories, the government did argue—though,
swiftly—that our Nation’s historical tradition supported
§ 922(g)(3)’s disarmament of Mitchell. Even so, Bullock provides authority that the government may raise
new historical analogues on appeal: “Because the Second Amendment analysis is a legal inquiry into the text
and history related to the relevant regulation, the government may provide additional legal support for its arguments on appeal.” 123 F.4th at 185.
With that behind us, we must now compare these examples to § 922(g)(1) as applied to Mitchell’s § 922(g)(3)
offense, asking whether they are “relevantly similar” at
Step Two. Bruen, 597 U.S. at 29. This task demands
assessing whether “the historical analogue and § 922(g)(1),
as applied here, impose a comparable burden on the
right to armed self-defense—and whether that burden
35a
is comparably justified.” Morgan, 147 F.4th at 529.
Consider the government’s analogues. It points to two
types of laws: (1) “going armed” laws and (2) recidivism laws. Each fails under Bruen.
Going armed laws. The government first argues
that § 922(g)(1) as applied to Mitchell can be supported
by this Nation’s historical “going armed” laws. This
historical analysis is derived from its “dangerousness”
argument, which requires reviewing Mitchell’s non-felony-related-offenses and conduct. Even so, Diaz provides a detailed historical exegesis of these laws. See
116 F.4th at 470-71. At their core, going armed laws
prohibited people from “riding or going armed, with
dangerous or unusual weapons, to terrify the good people of the land.” Id. at 464 (cleaned up). They targeted “those who had menaced others with firearms”
and “disrupted the public order” through acts that could
lead to “actual violence.” Id. at 470-71 (cleaned up).
Early laws in our Nation’s history “prohibit[ed] bearing
arms in a way that spreads ‘fear’ or ‘terror’ among the
people.” Bruen, 597 U.S. at 50. And Rahimi found
such laws to be relevantly similar historical precursors
to § 922(g)(8). 602 U.S. at 697-98.
Here, the going armed laws are not relevantly similar
to § 922(g)(1) as applied to Mitchell. True, both share
the same “how” in imposing a comparable burden on the
right to defense—as they each impose “ ‘permanent
arms forfeiture as a penalty’ . . . once an individual
was convicted of a disqualifying offense, whether for ‘going armed’ or for unlawful firearm use.” Morgan, 147
F.4th at 529 (quoting Diaz, 116 F.4th at 467, 471); id.
(explaining that the “shared penalty reinforces the historical analogy”). That said, these historical laws do
36a
not share the same “why” in being comparably justified
as applied to Mitchell’s § 922(g)(3) predicate offense.
While this Nation’s historical tradition shows “that legislatures have the power to prohibit dangerous people
from possessing guns,” Bullock, 123 F.4th at 185 (emphasis added), there is simply no evidence underlying
Mitchell’s § 922(g)(3) conviction—a non-violent offense
—that he was “found to threaten the physical safety of
another,” Rahimi, 602 U.S. at 698; see also Connelly,
117 F.4th at 278 (“Founding-era governments took guns
away from those perceived to be dangerous.”). The
government does not establish how Mitchell—an admitted habitual marijuana user who smoked three marijuana cigarettes each day, according to the PSR in his
§ 922(g)(3) case—can be reasonably analogized to have
“menaced others with firearms,” or “disrupted the public order” through acts likely to lead to “actual violence.”
See Diaz, 116 F.4th at 471 (cleaned up).
To establish his dangerousness as analogized to going armed laws, the government must necessarily fix its
aim beyond Mitchell’s § 922(g)(3) predicate offense.
But that request requires sidestepping our circuit precedent, see Diaz, 116 F.4th at 467; Morgan, 147 F.4th at
528, which we cannot do absent further instruction, Jacobs, 548 F.3d at 378; Daniels, 124 F.4th at 974 n.6. In
short, going armed laws are too broad to be sufficiently
analogous to Mitchell’s § 922(g)(1) conviction.
See
Diaz, 116 F.4th at 467 (requiring historical precursor to
be “analogous to” the defendant).
Recidivism laws. The government next argues that
§ 922(g)(1) as applied to Mitchell can be supported by
this Nation’s historical laws punishing “recidivism.”
Once again, this historical analysis is derivative of the
37a
government’s overarching dangerousness argument,
which is premised on evaluating Mitchell’s entire criminal record and looking beyond his § 922(g)(3) offense.
To tie a bow on this point, the government cites to Quiroz, where this court reviewed a constitutional challenge
to 18 U.S.C. § 922(a)(6), which prohibits making a false
statement while buying a firearm, as well as a challenge
to § 922(n)—a statute that prohibits receiving a firearm
while under indictment for a felony. 125 F.4th at 715.
Quiroz reviewed state laws imposing the death penalty
for several crimes, including a 1748 Virginia statute that
“imposed the death penalty for a third offense of stealing a hog.” Id. at 720 (emphasis added). The government seizes on that specific capital punishment law in
this case to draw a more general recidivism analogy. It
cites to other historical sources to conclude that recidivists were subject to execution during the Founding era
and that they “were dealt with brutally, by whippings
and execution.” None of these are helpful.
Here, the recidivism laws cited are not relevantly
similar to § 922(g)(1) as applied to Mitchell. Of course,
§ 922(g)(1) shares the same “how” as the cited Virginia
law in placing a comparable burden on the right to defense. Like § 922(g)(1)’s permanent ban on the possession of firearms, “if one is dead, they can no longer possess a firearm.” Contreras, 125 F.4th at 730. Yet
these laws do not share the same “why” because they
are not comparably justified as applied to Mitchell’s
§ 922(g)(3) predicate offense. For starters, the government’s recidivism argument seemingly hinges on the
success of its dangerousness proposal—that is, it presupposes this court will look beyond § 922(g)(3). Once
that door is closed, Mitchell cannot be properly characterized as a recidivist because the only relevant offense
38a
for our purposes is § 922(g)(3). Diaz, 116 F.4th at 467;
Morgan, 147 F.4th at 528.
But even engaging with the government’s proposed
historical analogue, the primary law cited is the 1748
Virginia statute, which punished repeat offenders charged
with theft. 125 F.4th at 720. Certainly, our Nation has
a longstanding historical tradition of “severely punishing” individuals “who have been convicted of theft.”
Diaz, 116 F.4th at 468-69. Quiroz picked up on that
historical tradition, which explains why it cites the Virginia statute for the view that “[s]tate laws . . . imposed the death penalty for a number of crimes,” such
as theft. 125 F.4th at 719-20. The government’s attempt to creatively recast Virginia’s capital punishment
theft statute in a more expansive light—here, marijuana
use—requires “analogical reasoning” that stretches far
beyond Bruen’s contemplated reach. Connelly, 117
F.4th at 282. “[T]he Bruen inquiry, as articulated in
Diaz, requires not only showing that someone convicted
of any felony was punished in a comparable way but that
someone convicted of an analogous felony was punished
in a comparable way.” Contreras, 125 F.4th at 731
(emphases added). At bottom, the government’s recidivism laws are too expansive to be analogous to Mitchell’s § 922(g)(1) offense. See Diaz, 116 F.4th at 467
(stating that historical precursors must be “analogous
to” the defendant).
We note that the government did not point to other
historical analogues to justify Mitchell’s disarmament
under § 922(g)(1). Mitchell responds that “[t]here is no
sufficient tradition of disarming someone with a prior
conviction for . . . § 922(g)(3) who was not intoxicated at the time.” In Connelly and Daniels, the gov-
39a
ernment put forth intoxication laws to justify § 922(g)(3)’s
constitutionality. 117 F.4th at 275; 124 F.4th at 976.
Not so here. The government never advanced these
laws. It only later raised Mitchell’s marijuana use—in
relation to dangerousness—in its Rule 28(j) Letter.
As a matter of party presentation, we could limit our
analysis to the “history and tradition before us,” Connelly, 117 F.4th at 282—the government’s going armed
laws and so-called recidivism laws—and call it a day.
Bruen, 597 U.S. at 25 n.6 (“The job of judges is not to
resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or
controversies.” (emphasis in original)). Bruen itself
contemplates that, based on the principle of party
presentation, courts may “decide a case based on the
historical record compiled by the parties.” Id.
But may does not mean must. We have, for example, conducted our own supplemental historical research
when reviewing Bruen challenges. E.g., Diaz, 116
F.4th at 468 (explaining the findings of the court’s “own
research” with respect to the history of “those convicted
of horse theft—likely the closest colonial-era analogue
to vehicle theft,” as opposed to the government’s cited
“laws targeting the crime of theft”). Contreras provides an especially useful example where we rejected
the government’s proposed analogues but nonetheless
relied on historical analogues outside the record.
In Contreras, the government supported § 922(g)(1)’s
constitutionality by pointing to our Nation’s history and
tradition of punishing felonies by death and permanent
estate forfeiture. 125 F.4th at 730. The court concluded these analogues were “too broad” and not “analogous to the facts” of the § 922(g)(3) predicate offense.
40a
Id. at 731. In reviewing the Nation’s historical tradition, Contreras analyzed Founding-era regulations that
banned presently intoxicated persons from carrying
weapons—even though the government did not raise
them—and held that “there is a tradition of regulating
Contreras’ predicate offense because he was intoxicated
while he possessed the gun.” Id. at 732 (emphasis in
original). Contreras held that § 922(g)(1) was “consistent with the principles that underpin our regulatory
tradition.” Id. (quoting Rahimi, 602 U.S. at 681). 9
Like Contreras, the government’s proposed historical analogues are too broad as applied to Mitchell. Intoxication laws, by contrast, bring this case into closer
alignment with our historical tradition and therefore
provide a better conceptual fit under these facts. See
Connelly, 117 F.4th at 279 (noting that, for drug regulation, including marijuana, “intoxication via alcohol is the
next-closest historical analogue that we can look to”
(cleaned up)).
Connelly conducted a comprehensive analysis of our
Nation’s historical tradition of regulating firearms
through intoxication laws. Id. at 279-82. In that case,
we held that, based on the “history and tradition before
us,” it supported “at most . . . a ban on carrying
9
The other basis in Contreras for holding § 922(g)(1) constitutional as applied to the defendant’s § 922(g)(3) offense was that our
Nation’s history and tradition supported disarming individuals who
were completing their sentences. 125 F.4th at 732-33. There,
Contreras was on temporary supervised release for his § 922(g)(3)
offense at the time of his § 922(g)(1) arrest, therefore falling within
the ambit of this tradition. Id. Here, because Mitchell was not
completing his sentence for his § 922(g)(3) offense at the time of his
§ 922(g)(1) arrest, Contreras’s alternative basis is inapposite.
41a
firearms while an individual is presently under the influence.” Id. at 282 (emphasis in original). “These laws
may address a comparable problem—preventing intoxicated individuals from carrying weapons—but they do
not impose a comparable burden on the right holder.”
Id. at 281. Our Nation’s historical intoxication statutes
furnish “support for banning the carry of firearms while
actively intoxicated,” whereas § 922(g)(3) takes it a step
further in more restrictively banning “all possession,
and it does so for an undefined set of users even while
they are not intoxicated.” Id. at 281-82 (emphases in
original) (cleaned up).
Where Connelly left off for § 922(g)(3), Contreras
picked up for § 922(g)(1). There, the government identified specific felonies that were not analogous to the
facts, but turned its attention to the historical record:
“While the Founding generation had no occasion to consider the relationship between firearms and intoxication
via cannabis, it was familiar with intoxication via alcohol
that was copiously consumed much like we are currently
familiar with a proliferation of people ingesting marijuana.” 125 F.4th at 732. After embracing Connelly’s
view that alcohol was the closest analogue, Contreras
concluded “there is a tradition of regulating [Contreras’
§ 922(g)(3)] predicate offense because he was intoxicated while he possessed the gun.” Id. at 732 (emphasis in original). In fact, Contreras was presently intoxicated for both his § 922(g)(3) and § 922(g)(1) offense.
Id. at 733.
Here, the intoxication laws are not relevantly similar
to § 922(g)(1) as applied to Mitchell. While these laws
may perhaps share the same “why” in imposing a comparably justified burden—that is, to “deter criminal con-
42a
duct, protect the public, and facilitate rehabilitation,”
id.—they do not share the same “how” in imposing a
comparable burden on Mitchell. While both laws involve a form of disarmament, § 922(g)(1) imposes a far
more severe restriction because it involves “permanent
disarmament,” in contrast to our Nation’s historical
“laws temporarily disarming intoxicated individuals.”
Id. Thus, if Connelly held that § 922(g)(3) is “much
broader than historical intoxication laws,” then applying
our Nation’s same regulatory tradition to Mitchell’s
§ 922(g)(1) offense, which imposes a permanent ban on
firearm possession, compels the same conclusion here.
At heart, these laws do not share the same “how” in imposing a comparable burden on Mitchell. 10
As applied to Mitchell, § 922(g)(1) limits his Second
Amendment rights more than our Nation’s historical
tradition would allow under these facts. For starters,
unlike Contreras, who was found with eight grams of
marijuana, packaging, a scale, and marijuana residue
with the smell of marijuana emanating from his car at
the time of his § 922(g)(1) offense, there is no evidence
that Mitchell was actively under the influence of marijuana while in possession of a firearm at the time of his
§ 922(g)(1) offense. Contreras, 125 F.4th at 728. The
10
The Supreme Court recently granted certiorari in United
States v. Hemani, 2025 WL 354982 (5th Cir. 2025) (per curiam),
cert. granted, No. 12-1234, 2025 WL 2949569 (U.S. Oct. 20, 2025).
There, the question presented is “[w]hether 18 U.S.C. § 922(g)(3)
. . . violates the Second Amendment as applied to respondent.”
Even if Hemani disagrees with our interpretation of § 922(g)(3),
that would not affect the outcome here, which is related to permanent disarmament under § 922(g)(1). The government has not
met its burden to proffer a relevantly similar historical analogue
for permanent disarmament.
43a
government cites to examples of intoxication, but each
took place while he was on court supervision, not while
he was possessing a firearm.
Nor do we have sufficient evidence of active intoxication for Mitchell’s § 922(g)(3) offense. At most, the
PSR indicates that Mitchell was a “drug user” who has
“used marijuana the past three years.” This evidence
may be illustrative of Mitchell’s habitual marijuana use
and probative of whether he might have been intoxicated at the time of his § 922(g)(3) offense. But such
evidence pales in comparison to the evidence of active
intoxication in Contreras. There, an officer conducted
a “traffic stop on Contreras’ car, smelled marijuana, and
searched the vehicle, finding [thirty-three] grams of marijuana and pictures in his phone of Contreras possessing firearms and marijuana.” Id. at 730. Afterward, police arrested Contreras before it “searched his
home and found a 9-millimeter Glock and several magazines of ammunition.” Id. He was found “armed
while intoxicated.” Id. at 733.
By contrast, in this case, after a search of the vehicle
where Mitchell was located, the officers found a loaded
.40 caliber pistol and a small bag of marijuana. Mitchell admitted to being a drug user but denied ownership
of the drugs and the firearm in the vehicle. He later
admitted over a recorded jail call that the firearm, which
had been reported as stolen, was in his possession.
There was otherwise no evidence confirming that he was
actively intoxicated while possessing a firearm.
Without sufficient evidence of present intoxication,
such as the type of evidence in Contreras, Mitchell’s admission of being a habitual marijuana user is not enough
to justify § 922(g)(1)’s permanent ban on his firearm
44a
possession. The implication of a ruling to the contrary
would be that Michell was always intoxicated from age
nineteen onward based on his admission, and our historical laws could be applied to him at any point during that
period. Yet there is a seismic “difference between an
actively intoxicated person and an ‘unlawful user’ under
§ 922(g)(3).” Connelly, 117 F.4th at 282. While an unlawful user includes regular users, like Mitchell, “the
temporal nexus is most generously described as vague,”
as it fails to “specify how recently an individual must
‘use’ drugs to qualify for the prohibition.” Id. (citing 27
C.F.R. § 478.11). Because we do not have sufficient evidence that confirms Mitchell was intoxicated while possessing a firearm as to his § 922(g)(1) and § 922(g)(3)
conduct, we hold that our Nation’s historical intoxication
laws do not impose a comparable burden on him and
therefore fail under Bruen.
* * *
“The constitutional 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 (quoting McDonald, 561 U.S. at
780). Our Framers to the Constitution and Bill of
Rights sought to design a structure of government that
prudently balanced “democratic self-government and
the protection of individual rights against excesses of
that form of government.” Rahimi, 602 U.S. at 714
(Kavanaugh, J., concurring). When executing our duty
to “say what the law is,” Marbury v. Madison, 1 Cranch
137, 177 (1803), as “bulwarks of a limited Constitution,”
FEDERALIST No. 78 (Hamilton), we do not implement
our own value-laden views about the policy outcome today. That is not our role. We recognize that the Sec-
45a
ond Amendment may have “controversial public safety
implications.” McDonald, 561 U.S. at 782. But our
judicial function requires us to interpret the meaning of
the Constitution by examining its text and our Nation’s
historical tradition of firearm regulation under Bruen,
while also adhering to our circuit precedent in this rapidly developing area of law.
Guided by history and constrained by precedent, we
hold that § 922(g)(1) is unconstitutional as applied to
Mitchell’s § 922(g)(3) predicate offense. Under Bruen,
our Nation’s historical tradition of using intoxication
laws to prohibit carrying firearms while presently intoxicated does not support permanent disarmament of a
marijuana user who was not presently intoxicated while
in possession of a firearm. Our precedents further instruct that being a habitual marijuana user, without
more, is insufficient to justify disarmament under
§ 922(g)(3). Connelly, 117 F.4th at 282 (holding that
the government could not apply § 922(g)(3) to a defendant based entirely on her “habitual or occasional drug
use”); Daniels, 124 F.4th at 970 (same). That same tradition holds true for § 922(g)(1) as applied to Mitchell in
this case.11
11
We do not hold that Mitchell may possess a firearm. For example, 18 U.S.C. § 922(g)(9) prohibits individuals who have been
convicted of domestic violence misdemeanors from possessing a
firearm. Despite Mitchell’s conviction for a domestic violence
misdemeanor in November 2017, the government did not charge
Mitchell for violating § 922(g)(9). We thus express no view on the
constitutionality of that provision either facially or as applied to
Mitchell.
46a
Because we hold that § 922(g)(1) is unconstitutional
as applied to Mitchell, we need not address Mitchell’s
alterative grounds for reversal.
IV
Accordingly, we REVERSE the district court’s denial of Mitchell’s motion to dismiss and VACATE the
judgment of conviction and sentence. The government’s motion to supplement the record is DENIED as
moot.
47a
HAYNES , Circuit Judge, dissenting:
I respectfully dissent from the reversal of the district
court’s denial of Mitchell’s motion to dismiss his indictment.
Notably, I concur with the district court’s decision to
deny his request to dismiss his indictment. Our cases
have evolved since the district court decided this case,
but its basic conclusion that Mitchell’s prior felony conviction did not require dismissal for his “as-applied”
challenge was correct, even though there was little said
by Mitchell about the as-applied. I concur with what
the district court judge said but, in addition, I think the
bulk of the appeal should be reviewed for plain error because the as-applied challenge was very limited when
raised in the district court. I would conclude that there
was no plain error.
However, plain error aside, looking to our prior case
of United States v. Contreras, it is sufficient to uphold a
§ 922(g)(1) conviction where that person was previously
convicted under § 922(g)(3) and was intoxicated when he
had the gun. 125 F.4th 725, 728-33 (5th Cir. 2025). This
case is like Contreras. Here, it is clear Mitchell was intoxicated at the time of his initial felony since he was
using marijuana three times a day. Moreover, I don’t
see any evidence that he has stopped using marijuana
constantly, so I conclude that he was also intoxicated
when he committed the offense that is the subject of this
case. Mitchell’s as-applied challenge should fail for
that reason. But if there is some question about that,
we should remand for the district court to consider, not
vacate the conviction and throw out the indictment.
48a
Additionally, when the Supreme Court issued Bruen,
it was not seeking to have felons carry guns. N.Y.
State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1
(2022). It focused on the “law-abiding” petitioners and
the fact that the New York statute in play in that case
was overly restricting such people from carrying guns.
Id. at 15. Indeed, it showed that in United States v.
Rahimi, 602 U.S. 680 (2024). It noted: “Since the
founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical
harm to others from misusing firearms.” Id. at 690.
The historical record demonstrates “that legislatures
have the power to prohibit dangerous people from possessing guns.” United States v. Bullock, 123 F.4th 183,
185 (5th Cir. 2024) (per curiam) (citation omitted), cert.
denied, No. 25-5208, 2025 WL 2824426 (U.S. Oct. 6,
2025). This defendant is clearly in that arena, so we
should not require that his indictment be dismissed.
Mitchell’s conduct during supervised release relies
on his original felony conviction and strongly shows his
dangerousness. After serving time for his § 922(g)(3)
offense and while on supervised release, the district
court found that Mitchell had engaged in assaultive conduct. During one such instance that led to his revocation, not only was it reported that Mitchell “push[ed],”
“chok[ed],” and “punch[ed],” the mother of his child
(during which time “she began to pepper spray him”),
but he reportedly “pull[ed] a large portion of her hair
out” and then “threaten[ed] to shoot and kill her.” I
conclude that his supervised-release conduct can and
should be considered because it is part of his initial felony.
49a
It is not the same as the misdemeanor conduct that
our rule of orderliness case does not want us to rely on.
See United States v. Diaz, 116 F.4th 458, 467 (5th Cir.
2024), cert. denied, 145 S. Ct. 2822 (2025). We already
recognize that “facts beyond [a] single qualifying conviction” may be relevant where that conduct is part of the
predicate felony. United States v. Morgan, 147 F.4th
522, 528 (5th Cir. 2025), reh’g en banc denied, No. 2430561 (5th Cir. Oct. 20, 2025). Such conduct is “revealing.” Id. Similarly, though it occurs later, conduct
while on supervised release should be considered as part
of the underlying felony conviction and should be relevant when assessing the prior felony. Supervised release flows directly from the offense of conviction. Indeed, “supervised release punishments arise from and
are treat[ed] . . . as part of the penalty for the initial
offense.” United States v. Haymond, 588 U.S. 634, 648
(2019) (citation modified). Even focusing on just the
felony conviction, his supervised release—which was
part of that conviction—shows that he caused physical
harm. I conclude we can and should consider that part
of the felony conviction and that would also mean we
must affirm the district court’s judgment.
I do not think that our prior cases require us to reverse. But even assuming arguendo that the majority
opinion is correct in concluding that our precedent,
which it said “constrains” us here, would require reversal, we should put this case in abeyance. The majority
opinion relies strongly on United States v. Connelly, 117
F.4th 269 (5th Cir. 2024). That case did not get petitioned to the Supreme Court. However, a subsequent
case that was unpublished and relied on the parties
agreeing to a summary affirmance was based entirely on
that Connelly case. United States v. Hemani, No. 24-
50a
40137, 2025 WL 354982, at *1 (5th Cir. Jan. 31, 2025)
(per curiam) (unpublished). The Government filed a
petition for certiorari, which the United States Supreme
Court has granted. United States v. Hemani, No. 241234, 2025 WL 2949569, at *1 (U.S. Oct. 20, 2025).
While that case is about § 922(g)(3) directly, the decision
of the Supreme Court will be very meaningful in deciding issues that are relied upon by the majority opinion.
We have various cases that say that relying on a particular felony conviction is enough for an as-applied
challenge to § 922(g)(1) to fail. See, e.g., United States
v. Kimble, 142 F.4th 308, 318 (5th Cir. 2025), petition for
cert. filed, (U.S. Sep. 24, 2025) (No. 25-5747); United
States v. Alaniz, 146 F.4th 1240, 1241-42 (5th Cir. 2025)
(per curiam); United States v. Clark, 148 F.4th 785, 788
(5th Cir. 2025); see also Diaz, 116 F.4th at 469-72. Put
another way, we have plenty of cases where the prior
conviction avoids the as-applied challenge such that the
§ 922(g)(1) offense comports with the Second Amendment. Accordingly, to me, it makes great sense at a
minimum to place this case in abeyance so we can review
what the Supreme Court holds in Hemani to determine
whether Mitchell’s § 922(g)(3) conviction is sufficient to
support his § 922(g)(1) conviction.
Accordingly, I respectfully dissent.
51a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
Case No. 1:23-cr-154-HSO-RPM-1
UNITED STATES OF AMERICA
v.
KEVIN LAMARCUS MITCHELL
Filed:
Apr. 29, 2024
ORDER DENYING DEFENDANT KEVIN
LAMARCUS MITCHELL’S MOTION [30]
TO DISMISS
BEFORE THE COURT is Defendant Kevin LaMarcus Mitchell’s Motion [30] to Dismiss the one-count
Indictment [16], which charges him with possessing a
firearm after 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) and 924(a)(8). The
Motion [30] argues that, as applied to Defendant,
§ 922(g)(1) violates the Second Amendment of the
United States Constitution under the Supreme Court’s
decision in New York State Rifle & Pistol Ass’n v.
Bruen, 142 S. Ct. 2111 (2022). Defendant also cites
United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023),
cert. granted, No. 22-915, 143 S. Ct. 2688 (June 30, 2023),
52a
and United States v. Daniels, 77 F.4th 337 (5th Cir.
2023), which held § 922(g)(8) unconstitutional and
§ 922(g)(3) unconstitutional as applied, respectively.
Defendant also contends “that § 922(g)(1) is unconstitutional under the Fifth Amendment to the United States
Constitution because it violates the equal protection
guarantee and that § 922(g)(1) constitutes an unconstitutional extension of Congress’s authority under the
Commerce Clause.” Memo [31] at 1.
Because Bruen did not clearly abrogate Fifth Circuit
precedent holding § 922(g)(1) constitutional under the
Second Amendment as applied to any individual with a
qualifying prior conviction, and neither Rahimi nor
Daniels states otherwise, the Court will reject Defendant’s Second Amendment argument. The Court will
also reject Defendant’s claims under the Fifth Amendment and the Commerce Clause because Fifth Circuit
precedent squarely forecloses them and, therefore, will
deny the Motion [30] to Dismiss.
I.
BACKGROUND
On December 13, 2023, a grand jury sitting in this
District returned a one-count Indictment [16] against
Kevin LaMarcus Mitchell (“Mitchell” or “Defendant”),
charging that he violated 18 U.S.C. §§ 922(g)(1) and
924(a)(8). See Doc. [16] (Indictment). Defendant’s
Motion [30] to Dismiss does not dispute that he had previously been convicted of a crime punishable by more
than one year prior to possessing a firearm, and he admits that he “has a prior federal felony from when he
was 19 years old.” Memo [31] at 2. But Defendant argues that he is “one of ‘the people’ protected under the
Second Amendment’s plain text,” id. at 6, and that, as
53a
applied to him, § 922(g)(1) violates the Second Amendment, id. at 7-12.
Although Defendant characterizes his argument as
an as-applied challenge, he argues categorically that
“the Government cannot establish a historical tradition
of completely and permanently stripping persons with
felony convictions, like Mr. Mitchell, of their Second
Amendment rights.” Id. at 12. It is unclear on what
basis Defendant raises any as-applied theory, as he instead couches his arguments in terms of the general unconstitutionality of § 922(g)(1). See generally id. at 512.
The Government opposes the Motion [30], responding that “Fifth Circuit precedent remains controlling
and has long recognized the constitutionality of prohibiting possession of firearms based on the risk that persons pose to others, particularly the risk that convicted
felons pose,” and that “nothing in Bruen alters the constitutionality of prohibiting firearms as prescribed in
Section 922(g)(1).” Resp. [33] at 1. It likewise asserts
that “Section 922(g)(1) does not violate the Equal Protection or Commerce Clause.” Id.
II.
DISCUSSION
As this Court has explained in prior decisions, Fifth
Circuit precedent holding § 922(g)(1) constitutionally
valid under the Second Amendment remains binding
upon this Court. See, e.g., United States v. Letterman,
No. 1:23-CR-66-HSO-BWR-1, 2023 WL 7336562, at *1
(S.D. Miss. Nov. 7, 2023); United States v. Schnur, No.
1:23-CR-65-LG-BWR-1, 2023 WL 4881383, at *1 (S.D.
Miss. July 31, 2023), appeal docketed, No. 23-60621 (5th
Cir. Dec. 11, 2023); see also, e.g., United States v. Robillia,
54a
No. 1:22-CR-162-LG-BWR, 2023 WL 7414449, at *2
(S.D. Miss. Nov. 9, 2023). The Court hereby adopts
and incorporates herein by reference the opinions in
Letterman and Schnur and will deny the pending Motion [30] to Dismiss for the reasons more fully stated in
those decisions. See Letterman, 2023 WL 7336562, at
*1; Schnur, 2023 WL 4881383, at *1.
The Court also notes that, under plain error review,
the Fifth Circuit has rejected a Second Amendment
claim that § 922(g)(1) is unconstitutional since Bruen
was decided. See United States v. Jones, 88 F.4th 571,
574 (5th Cir. 2023) (per curiam).1 Jones found an “absence of binding precedent holding that § 922(g)(1) is unconstitutional” and that whether § 922(g)(1) violates the
Second Amendment is an “unsettled question [that] is
not clear or obvious.” Id. Further, the Eleventh Circuit recently held that its precedent from before Bruen
holding § 922(g)(1) constitutional under the Second
Amendment, United States v. Rozier, 598 F.3d 768 (11th
Cir. 2010), still stands given it relied on District of Columbia v. Heller, 554 U.S. 570 (2008), not the meansends scrutiny that Bruen abrogated.
See United
States v. Dubois, 94 F.4th 1284, 1291-93 (11th Cir. 2024).
Prior to this published opinion being filed on November 21,
2023, the Fifth Circuit had issued several unpublished opinions
post-Bruen that were consistent with Jones, rejecting Second
Amendment claims that § 922(g)(1) is unconstitutional under plain
error review. See, e.g., United States v. Johnson, No. 22-20300,
2023 WL 3431238, at *1 (5th Cir. May 12, 2023); United States v.
Pickett, No. 22-11006, 2023 WL 3193281, at *1 (5th Cir. May 2,
2023); United States v. Roy, No. 22-10677, 2023 WL 3073266, at *1
(5th Cir. Apr. 25, 2023); United States v. Hickcox, No. 22-50365,
2023 WL 3075054, at *1 (5th Cir. Apr. 25, 2023).
1
55a
Likewise, Fifth Circuit precedent forecloses Defendant’s Commerce Clause argument, see United States v.
Darrington, 351 F.3d 632, 634 (5th Cir. 2003) (reaffirming “that the constitutionality of § 922(g) is not open to
question” notwithstanding United States v. Lopez, 514
U.S. 549 (1995), and other Supreme Court cases decided
under the Commerce Clause (internal quotation marks
and citations omitted)), and his Equal Protection argument, see id. at 634-35 (rejecting an Equal Protection
challenge to § 922(g)(1)).
III.
CONCLUSION
The Fifth Circuit has previously rejected Defendant’s arguments challenging § 922(g)(1)’s constitutionality, and Bruen did not abrogate any of those cases.
This Court must therefore hold § 922(g)(1) constitutional. Accordingly, the Court will deny Mitchell’s Motion [30] to Dismiss the one-count Indictment [16].
IT IS, THEREFORE, ORDERED AND ADJUDGED
that, Defendant Kevin LaMarcus Mitchell’s Motion [30]
to Dismiss is DENIED.
SO ORDERED this the 29th day of April, 2024.
/s/ HALIL SULEYMAN OZERDEN
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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.