Petition for Writ of Certiorari — Brayam Guerra Licon, Petitioner v. United States

Supreme Court briefAug 13, 2026

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No. ___________________

BRAYAM GUERRA LICON, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

MAUREEN SCOTT FRANCO

Federal Public Defender

KRISTIN L. DAVIDSON

Assistant Federal Public Defender

Counsel of Record

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

WESTERN DISTRICT OF TEXAS

300 Convent Street, Suite 2300

San Antonio, Texas 78205

Kristin_Davidson@fd.org

(210) 472-6700

Counsel for Petitioner

Question Presented

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court

explained the Second Amendment’s key terms. The Court later

fleshed out the two-step analysis required in a Second Amendment

case in NYSRPA v. Bruen, 597 U.S. 1 (2022). If the challenged law

clashes with the plain text of the Amendment, it is presumptively

unconstitutional. Id. at 24. The government then has the burden

to show that the challenged law is “consistent with the Nation’s

historical tradition of firearm regulation.” Id.

The Court’s subsequent Second Amendment cases have focused

on Bruen’s second step. See United States v. Hemani, 146 S. Ct.

1677 (2026); Wolford v. Lopez, 146 S. Ct. 2032 (2026); United States

v. Rahimi, 602 U.S. 680 (2024). But in Wolford, the Court clarified

that the “plain text” inquiry under Bruen’s first step “entails three

subsidiary questions”—whether the challenged law (1) applies to

“the people”; (2) concerns “Arms;” and (3) restricts the possession

or carrying of arms. 146 S. Ct. at 2043–44 (cleaned up).

The question presented is:

Under Bruen’s first step, does an additional presumption of

constitutionality exist for laws characterized as “shall-issue licensing regimes”?

Parties to the Proceedings

Pursuant to Sup. Ct. R. 14.1(b)(i), the parties to the proceedings in the court whose judgment is sought to be reviewed are:

Petitioner Brayam Guerra Licon, the defendant in the district

court and appellant below.

Respondent United States of America, the plaintiff in the district court and appellee below.

Related Proceedings

United States District Court for the Western District of Texas:

United States v. Licon, No. 7:24-CR-195-1 (May 7, 2025)

(criminal judgment)

United States Court of Appeals for the Fifth Circuit:

United States v. Licon, No. 25-50380 (May 15, 2026) (per

curiam) (unpublished)

vii

Table of Contents

Question Presented ......................................................................... iv

Parties to the Proceedings ................................................................v

Related Proceedings ........................................................................ vi

Table of Contents ........................................................................... vii

Table of Authorities....................................................................... viii

Introduction.......................................................................................1

Opinion Below ...................................................................................3

Jurisdiction........................................................................................4

Constitutional and Statutory Provisions Involved .........................4

Statement ..........................................................................................4

A. Legal background. .........................................................4

B. Proceedings below. ..................................................... 12

Reasons for Granting the Petition ................................................ 14

Lower courts have badly misconstrued Bruen’s first step

and created conflicts between courts. .............................. 14

II. This is a critically important and recurring question. .... 22

Conclusion ...................................................................................... 23

Appendix

United States v. Licon,

No. 25-50380 (5th Cir. May 15, 2026) ........................................... 1a

Statutes Involved .......................................................................... 3a

viii

Table of Authorities

Cases

Commonwealth v. Marquis,

252 N.E.3d 991 (2025).......................................................... 19–20

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................................ iv, 6–7, 11

Haynes v. United States,

390 U.S. 85 (1968) ........................................................................ 5

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) ........................................................ 7

Lonmont v. O’Neill,

285 F.3d 9 (D.C. Cir. 2002) ................................................... 21–22

McCoy v. Jacobson,

176 F.4th 1055 (8th Cir. 2026) ................................................... 20

McRorey v. Garland,

99 F.4th 831 (5th Cir. 2024) ....................................................... 17

Md. Shall Issue, Inc. v. Moore,

116 F.4th 211 (4th Cir. 2024) ......................................... 16–17, 20

Mock v. Garland,

75 F.4th 563 (5th Cir. 2023) ......................................................... 4

NYSRPA v. Bruen,

597 U.S. 1 (2022) ...................................... iv, 2–3, 8–11, 13–18, 22

Smith & Wesson Brands, Inc. v.

Estados Unidos Mexicanos,

605 U.S. 280 (2025) ...................................................................... 1

United States v. Comeaux,

179 F.4th 297 (5th Cir. 2026) ..................................................... 18

United States v. DeBorba,

177 F.4th 1005 (9th Cir. 2026) ............................................. 17, 20

United States v. Focia,

869 F.3d 1269 (11th Cir. 2017)..................................................... 7

United States v. Hemani,

146 S. Ct. 1677 (2026) ............................................................ iv, 10

United States v. Peterson,

161 F.4th 331 (5th Cir. 2025) ................................... 13, 17, 20–21

United States v. Rahimi,

602 U.S. 680 (2024) ................................................................ iv, 10

United States v. Speed,

175 F.4th 272 (4th Cir. 2026) ......................................... 16, 18, 20

United States v. Thompson/Ctr. Arms Co.,

504 U.S. 505 (1992) ...................................................................... 5

Wolford v. Lopez,

146 S. Ct. 2032 (2026) .................................. iv, 2, 8, 10–11, 18–19

Constitutional Provisions

Second Amendment,

U.S. Const. amend. II............................................................... 4, 6

U.S. Const. Art. III, § 2 .................................................................. 15

Statutes

18 U.S.C. § 922(g)(1) ........................................................................ 6

26 U.S.C. § 5811 ............................................................................... 5

26 U.S.C. § 5812 ......................................................................... 5, 21

26 U.S.C. § 5822 ............................................................................. 20

26 U.S.C. § 5841 ..................................................................... 4–5, 12

26 U.S.C. § 5845 ........................................................................... 4–5

26 U.S.C. § 5861 ................................................................. 2, 4–5, 12

26 U.S.C. § 5861(d) .................................................................... 2, 12

26 U.S.C. § 5871 ..................................................................... 4–5, 12

28 U.S.C. § 1254(1) .......................................................................... 4

National Firearms Act,

Pub. L. No. 73-474, 48 Stat. 1236 ............................................... 4

One Big Beautiful Bill Act,

Pub. L. No. 119-21,

§ 70436, 139 Stat. 72, 247 (2025) ................................................ 5

18 Pa. Cons. Stat. § 6106(a) .......................................................... 15

18 Pa. Cons. Stat. § 6109 ......................................................... 15, 21

Other Authorities

Brief Amicus Curiae of Gun Owners of America et al.,

Wolford v. Lopez, No. 24-1046 (Nov. 24, 2025) ......................... 18

Grant v. Higgins,

No. 25-566 (U.S.) .................................................................... 3, 23

Viramontes v. Cook County, IL,

No. 25-238 (U.S.) .................................................................... 3, 23

BRAYAM GUERRA LICON, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Brayam Guerra Licon, respectfully petitions for a

writ of certiorari to review the judgment of the United States Court

of Appeals for the Fifth Circuit.

Introduction

Licon possessed an AR-15 rifle, “the most popular rifle in the

country.” Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280, 297 (2025). But the barrel length of the AR-15

was less than 16 inches, so he was criminally prosecuted because

he received or possessed that firearm in violation of the National

Firearms Act’s taxation-and-registration scheme. See 26 U.S.C.

§ 5861(d). Licon challenged the constitutionality of the NFA as applied to him because the laws clash with the plain text of the Second Amendment and there is no historical tradition of firearm regulation that allows the government to systematically tax and track

who receives or possesses protected arms.

The Fifth Circuit affirmed Licon’s conviction based on circuit

precedent that holds that the NFA’s taxation-and-registration

scheme is a “shall-issue licensing regime” that is “presumptively

constitutional” under Bruen’s first step—according to the dicta in

Bruen’s footnote 9. That precedent placed an additional burden on

Licon to show, as part of the plain-text inquiry of Bruen’s first step,

that the challenged law was put to abusive ends as applied to him

specifically. By contrast, when a law regulates arms-bearing conduct, the government bears the burden under Bruen’s second step

to prove that the challenged law is consistent with the Nation’s

historical understanding of the Second Amendment right.

The Fifth Circuit’s mischaracterization of Bruen’s first step

conflicts with at least one state court of last result, and “smuggle[s]

additional limits, drawn from our regulatory tradition, into the

plain-text stage of the inquiry.” Wolford v. Lopez, 146 S. Ct. 2032,

2054 n.1 (2026) (Barrett, J., concurring).

The question presented is critically important to the scope of a

fundamental right. The Court has already granted certiorari in

cases that will answer whether the Second Amendment guarantees

the right to possess the AR-15 platform and similar semiautomatic

rifles in Viramontes v. Cook County, IL, No. 25-238 (U.S.), and

Grant v. Higgins, No. 25-566 (U.S.). This case would make an ideal

companion case because it presents a question that Viramontes and

Grant do not: whether the constitutionality of the NFA’s taxationand-registration regime, at least as applied to short-barreled rifles

like Licon’s, is a question for Bruen’s second step, not its first.

This question will not go away, and this is an ideal vehicle to

resolve it. The Court should grant certiorari. At minimum, the

Court should hold this petition pending the outcome of Viramontes

and Grant, which could shed light on the required analysis under

Bruen’s first step.

Opinion Below

A copy of the unpublished opinion of the court of appeals,

United States v. Licon, No. 25-50380 (5th Cir. May 15, 2026) (per

curiam), is reproduced at Pet. App. 1a–2a.

Jurisdiction

The opinion and judgment of the United States Court of Appeals for the Fifth Circuit were entered on May 15, 2026. This petition is filed within 90 days after the judgment’s entry. See Sup.

Ct. R. 13.1. The Court has jurisdiction to grant certiorari under 28

U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people

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

Relevant statutory provisions of the National Firearms Act—

26 U.S.C. §§ 5841, 5845, 5861, and 5871—are reproduced in the

Appendix. Pet. App. 3a–11a.

Statement

A. Legal background.

1. In 1934, Congress passed the National Firearms Act

(“NFA”), Pub. L. No. 73-474, 48 Stat. 1236 (codified as amended at

26 U.S.C. §§ 5801–5872), an “especially restrictive regime [that]

resulted from panic over gangster-related violence and thus was

instituted to regulate ‘weapons likely to be used for criminal purposes.”’ Mock v. Garland, 75 F.4th 563, 570 (5th Cir. 2023) (quoting

United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517

(1992) (plurality opinion)); see also Haynes v. United States, 390

U.S. 85, 87 n.4 (1968). The NFA established a national registry of

certain classes of firearms—including short-barreled rifles—

known as the National Firearms Registration and Transfer Record

(“NFRTF”). 26 U.S.C. §§ 5841(a), 5845(a)(3). The NFRTR contains

information on each firearm, the firearm’s registration date, and

the identification and address of the person entitled under law to

possess it. § 5841(a)(1)–(3). An individual who transfers a firearm

must complete an application identifying the firearm, applicant,

and transferee; include the transferee’s fingerprints and photograph; and pay a $200 tax. 1 §§ 5811, 5812. The NFA provides for

denial of an application for transferring a firearm if transferring

or possessing the firearm would violate the law. 26 U.S.C.

§ 5812(a). If approved, the transferor must register the firearm in

the NFRTR. § 5841(b). Failure to comply with this registrationand-taxation scheme subjects an individual to up to ten years’ imprisonment. §§ 5861, 5871. In addition, a conviction for violating

1 Although Congress recently eliminated the $200 tax on the

transfer of short-barreled rifles, see One Big Beautiful Bill Act,

Pub. L. No. 119-21, § 70436, 139 Stat. 72, 247 (2025), the taxation

requirement was in effect at all times relevant to this petition, see

26 U.S.C. § 5811 (1976), and the registration requirement remains

in place.

any provision of the NFA further subjects the individual to the lifetime relinquishment of their Second Amendment right to possess

any firearm. See 18 U.S.C. § 922(g)(1).

2. In District of Columbia v. Heller, the Court held for the first

time that the Second Amendment codifies an individual right to

keep and bear arms—a right that is not limited to militia service.

554 U.S. 570, 579–600 (2008). In reaching this conclusion, the

Court conducted a “textual analysis” of the Second Amendment’s

language—explaining its key terms—and surveyed the Amendment’s “historical background.” Id. at 578, 592. The Court had “no

doubt, on the basis of both text and history, that the Second

Amendment conferred an individual right”—enjoyed by “the people”—“to keep and bear arms.” Id. at 595. The Court held that the

phrase “to keep and bear Arms” means to “have” and “carry Arms.”

Id. at 583–85. And “Arms” refers to implements used for offense or

defense, adding that handguns, which are “overwhelmingly chosen

by American society” for self-defense, fall squarely into this category. Id. at 581, 628.

Relying on the historical understanding of the Amendment,

however, the Court recognized that the Second Amendment right

was not an “unlimited” right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id.

at 592, 626. Similarly, the Court cautioned that “nothing in our

opinion should be taken to cast doubt on longstanding prohibitions

on the possession of firearms by felons and the mentally ill, or laws

forbidding the carrying of firearms in sensitive places such as

schools and government buildings.” Id. at 626–27 & n.27. But the

Court acknowledged that it was not “undertak[ing] an exhaustive

historical analysis … of the full scope of the Second Amendment.”

Id. at 626. And it did not cite any historical examples of these

“longstanding” laws, explaining that there would be “time enough

to expound upon the historical justifications for the[se] exceptions

… if and when those exceptions come before us.” Id. at 635. The

Court then turned to the District of Columbia handgun ban at issue, finding that it was historically unprecedented and thus violated the Second Amendment. Id. at 629, 631–35.

Following Heller, the courts of appeals coalesced around a twostep framework for analyzing Second Amendment challenges that

focused on the historical scope of the Second Amendment at step

one and applied means-ends scrutiny at step two. See, e.g., Kanter

v. Barr, 919 F.3d 437, 441–42 (7th Cir. 2019); United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017). Applying the means-end

interest balancing, “lower courts rejected nearly all Second

Amendment claims based on reasoning that resembled that in Justice Breyer’s Heller dissent.” Wolford, 146 S. Ct. at 2043.

3. Then came Bruen. In Bruen, this Court held that the twostep framework adopted by the courts of appeals was “one step too

many.” 597 U.S. at 19. Instead, the Court explained that Heller

demanded a test “centered on constitutional text and history.” Id.

at 22. Under this test, “when the Second Amendment’s plain text

covers an individual’s conduct, the Constitution presumptively

protects that conduct.” Id. at 17. “The government must then justify its regulation by demonstrating that it is consistent with the

Nation’s historical tradition of firearm regulation.” Id. at 24. “Only

then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” Id. (cleaned

up).

Bruen explained that the appropriate analysis under the second step involves considering whether the challenged regulation is

consistent with the principles that underpin our regulatory tradition. A court must ascertain whether the new law is “relevantly

similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation

to modern circumstances.” 597 U.S. at 29. The law need not be a

“historical twin,” but analogical reasoning is also not a “regulatory

blank check.” Id. at 30. “How” and “why” the regulations burden

the right to bear arms are central to this inquiry. Id. at 29.

Applying this two-step analysis, the Court held that the challenged New York law, which prohibited citizens from carrying

handguns in public for self-defense, violated the Second and Fourteenth Amendments. Bruen, 597 U.S. at 38. In addition, the Court

pointed out six other jurisdictions that had adopted “may-issue”

statutory provisions like New York’s. Id. at 15. But in footnote 9,

the Court clarified that “shall-issue” licensing regimes “under

which ‘a general desire for self-defense is sufficient to obtain a [permit]’” are not immediately unconstitutional just because the mayissue regimes in seven identified jurisdictions are. Id. at 38 n.9.

The Court explained,

[b]ecause these licensing regimes do not require applicants

to show an atypical need for armed self-defense, they do not

necessarily prevent ‘law-abiding, responsible citizens’ from

exercising their Second Amendment right to public carry.

… Rather, it appears that these shall-issue regimes … are

designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ …

And they likewise appear to contain only ‘narrow, objective,

and definite standards’ guiding licensing officials, …, rather than requiring the ‘appraisal of facts, the exercise of

judgment, and the formation of an opinion,’ … features that

typify proper-cause standards like New York’s. That said,

because any permitting scheme can be put toward abusive

ends, we do not rule out constitutional challenges to shallissue regimes where, for example, lengthy wait times in

processing license applications or exorbitant fees deny ordinary citizens their right to public carry.

Id. at 38 n. 9 (internal citations omitted). The Court did not specify

at which step—text or history—these constitutional challenges

would turn.

4. The Court’s subsequent Second Amendment cases have been

decided under Bruen’s second step, because in each case the challenged law easily clashed with the plain text of the Second Amendment. See United States v. Hemani, 146 S. Ct. 1677, 1686 (2026)

(noting the government’s concession that § 922(g)(3)’s unlawful

user provision burdens conduct presumptively protected by the

Second Amendment); Wolford, 146 S. Ct. at 2047 (2026) (noting

party agreement that “the plain text of the Second Amendment

protects what petitioners want to do: carry handguns for self-defense”) (cleaned up); United States v. Rahimi, 602 U.S. 680, 693

(2024) (holding 18 U.S.C. § 922(g)(8) constitutional at Bruen’s second step).

In Wolford, the Court broke no new ground in explaining

Bruen’s first step but reiterated that it requires nothing more than

“a court [determining] whether the law before it clashes with the

‘plain text’ of the Amendment’s language.” 146 S. Ct. at 2043 (quot-

ing Bruen, 597 U.S. at 24). That inquiry, the Court clarified, “entails three subsidiary questions.” Id. “First, does the law apply to

‘the people’—which is to say, to ‘all members of the political community’”? Id. (quoting Heller, 554 U.S. at 580). “Second, does it

concern any form of ‘Arms,’ i.e., any weapon customarily used for

offensive or defensive purposes?” Id. (quoting Heller, 554 U.S. at

580). “Third, does the law place any restrictions on either the

‘keep[ing]’ (i.e., possession) or the ‘bear[ing]’ (i.e., carrying) of

arms?” Id. (quoting Bruen, 597 U.S. at 32–33). If each question is

answered in the affirmative, then the “challenged law falls within

the plain text of the Second Amendment,” and “is presumptively

unconstitutional—which means that it may violate the preexisting

right that the Amendment codified.” Id. at 2044 (citation omitted)

(emphasis in original). It then becomes the government’s burden

“to show that its challenged law did not infringe the historical understanding of the codified right.” Id. While history is relevant to

“elucidate how contemporaries understood the text,” courts cannot

“smuggle additional limits, drawn from our regulatory tradition,

into the plain-text stage of the inquiry.” Id. at 2054 & n.1 (Barrett,

J., concurring).

B. Proceedings below.

1. When law enforcement agents executed a search warrant

for the hotel room where Licon was residing, they found an AR-15

rifle manufactured by CORE that had a barrel length of nine

inches. Federal law enforcement agents verified that neither Licon

nor the AR-15 CORE rifle were registered in the NFRTR. Consequently, Licon was charged in a one-count indictment for having

violated 26 U.S.C. §§ 5841, 5861(d), and 5871.

2. Licon moved to dismiss the indictment. He argued that, under the framework established by Bruen, the Second Amendment

protects the right to possess a short-barreled rifle like an AR-15,

and the government cannot show a relevantly similar founding-era

tradition that conditions the possession of arms on registration

with and taxation by the federal government. The district court

denied his motion, concluding that a short-barreled rifle is not a

bearable arm in common use under the plain text of the Second

Amendment.

3. Licon pleaded guilty to the indictment without a plea agreement. He admitted that he had received and possessed a semiautomatic rifle with a barrel length under 16 inches in length, it was

operable, and it was not registered to him in the NFRTR. The district court sentenced Licon to 78 months’ imprisonment and three

years’ supervised release.

4. Licon raised his Second Amendment challenge on appeal.

The Fifth Circuit affirmed because circuit precedent foreclosed

Licon’s Second Amendment challenge. Pet. App. 1a. (citing United

States v. Peterson, 161 F.4th 331, 337–41 (5th Cir. 2025), cert. denied, No. 25-1076, 2026 WL 1052030 (U.S. Apr. 20, 2026)).

In Peterson, the Fifth Circuit addressed a similar question—

whether the NFA violated the Second Amendment as applied to an

unregistered suppressor. 161 F.4th at 335. The Court acknowledged that Bruen’s two-step framework governed the Second

Amendment analysis. Id. at 337. But under Bruen’s first step, the

court concluded that “the NFA suppressor-licensing scheme is presumptively constitutional because it is a shall-issue regime.” Id. at

339. To reach this conclusion, the court relied on footnote 9 in

Bruen’s opinion, reasoning that the NFA “is precisely the ‘objective[] and definite’ licensing criterion held permissible under

Bruen.” Id. (quoting Bruen, 597 U.S. at 38 n.9). Keeping the burden

on Peterson, the court concluded that, under Bruen’s first step, it

was dispositive to his Second Amendment challenge that he

“fail[ed] to make any showing as to how the requirement places an

unconstitutional burden on his Second Amendment rights.” Id.

Reasons for Granting the Petition

Lower courts have badly misconstrued Bruen’s first

step and created conflicts between courts.

1. The Second Amendment guarantees “the right of the people

to keep and bear Arms.” In NYSRPA v. Bruen, this Court facially

invalidated a New York public-carry licensing law that vested authorities with the discretion to deny otherwise-eligible applicants

their Second Amendment rights. 597 U.S. 1, 13–15 (2022). As the

Court explained, such a “may-issue” regime was not only atextual,

but also ahistorical, as no “historical limitation ... operated to prevent law-abiding citizens with ordinary self-defense needs from

carrying arms in public ....” Id. at 60.

In Bruen, the Court contrasted New York’s “may-issue” regime

with the seeming “shall-issue” regimes of states whose laws were

not at issue. See 597 U.S. at 38 n.9. While other states’ “shall-issue”

regimes “appeared to contain only narrow, objective, and definite

standards guiding licensing officials,” New York’s “may-issue” regime “required the appraisal of facts, the exercise of judgment, and

the formation of an opinion ....” Id. (cleaned up). New York’s “openended” and “unchanneled discretion,” Id. at 79 (Kavanaugh, J. &

Roberts, C. J., concurring), had historical—and therefore constitutional—significance.

But the significance of Bruen’s footnote 9 ended there. The

Court’s dictum, which qualified that other states’ licensing regimes

only “appear[ed] to operate” as shall-issue statutes, and only “appear[ed] to contain” certain features, simply acknowledges what

was not at issue before the Court. 597 U.S. at 13 n.1, 38 n.9 (emphasis added). To suggest otherwise implies that the Court used a

footnote to opine on the constitutionality of hundreds of laws

across the Nation that were not at issue before it. Cf. U.S. Const.

Art. III, § 2 (limiting the “judicial Power” to “Cases” and “Controversies”).

Moreover, most of the 43 states identified in footnote 9 have

either permitless (or “constitutional”) carry regimes or require

“shall-issue” licensure only for concealed carry and impose no licensing requirement on open carry. See, e.g., Bruen, 597 U.S. at 13

n.1 (collecting 25 states with permitless or constitutional carry

laws at the time, which “allow certain individuals to carry handguns in public within the State without any permit whatsoever”);

cf. 18 Pa. Cons. Stat. §§ 6106(a), 6109 (Pennsylvania law requiring

license for concealed carry, while leaving open carry undisturbed).

In other words, most of the “shall-issue” regimes Bruen discussed

either do not require a license to possess or carry a protected arm

or regulate only the manner of carry and do not require licensure

for public carry as a general matter. Thus, it certainly would be

difficult “to suggest the unconstitutionality” of regimes that do not

mandate licensure in the first place, and which offer licenses only

as an option—primarily for reciprocity purposes with other states.

Bruen, 597 U.S. at 38 n.9.

2. Yet contrary to these obvious limitations on the scope of

Bruen’s footnote 9, some lower courts have latched onto the Court’s

dicta, have badly mischaracterized it, and created a conflict with

at least one state court of last resort. The Fourth, Fifth, and Ninth

Circuits argue that Bruen definitively held that all “shall-issue”

regimes are constitutional—not just for public carry, but also to

acquire firearms in the first place. For instance, purporting to follow Bruen’s footnote 9, the Fourth Circuit has “h[e]ld that non-discretionary ‘shall-issue’ licensing laws are presumptively constitutional and generally do not ‘infringe’ the Second Amendment right

to keep and bear arms ....” Md. Shall Issue, Inc. v. Moore, 116 F.4th

211, 222 (4th Cir. 2024); see also United States v. Speed, 175 F.4th

272, 286 (4th Cir. 2026) (holding that the NFA regulations related

to silencers are “presumptively constitutional” under Bruen’s first

step). Likewise, the Ninth Circuit has held that “[f]ootnote 9 in

Bruen creates a presumption of constitutionality” for the NFA’s

scheme. United States v. DeBorba, 177 F.4th 1005, 1012–13 (9th

Cir. 2026). Prior to Peterson, another panel in the Fifth Circuit

used Bruen’s footnote 9 to exempt from historical analysis age-related waiting periods on firearm acquisition. McRorey v. Garland,

99 F.4th 831, 836–37 (5th Cir. 2024). In these circuits, so long as

the challenged firearm regulation can be labeled a “shall-issue” license—no matter how ahistorical, onerous, or unrelated to public

carry it is—the government avoids its historical burden under

Bruen’s second step unless the individual first proves that the regime “effectively denies the Second Amendment right ....” Md.

Shall Issue, 116 F.4th at 223.

Peterson, the Fifth Circuit precedent relied upon below, similarly recasts the NFA as a “shall-issue” licensing scheme rather

than a tax-and-registration regime, and thus “Bruen’s presumption of constitutionality ... applies to the NFA’s application procedures.” Pet. App. 1a (citing Peterson, 161 F.4th at 337–41). Thus,

the Fifth Circuit, like the Fourth and Ninth Circuits, absolves the

government of its historical burden, and has once again converted

Bruen into a “judge-empowering interest-balancing inquiry,”

widely blessing preconditions on the threshold acts of acquisition

and possession—not just public carry. Bruen, 597 U.S. at 22

(cleaned up); see also United States v. Comeaux, 179 F.4th 297, 304

(5th Cir. 2026) (Clement, J., joined by Duncan, J., concurring) (noting that Peterson “problems abound” because “[b]y transforming

[Bruen’s] footnote nine’s dictum into doctrine” the effect of Peterson

“resurrects a repudiated form of interest-balancing, as it now

greenlights a court’s assessment of a law’s ‘abusiveness,’ which can

bring a Bruen challenge to an end. But such interest-balancing

provides cover for judicial policymaking”); Speed, 175 F.4th at 291

(Richardson, J., concurring) (respecting circuit precedent but noting that the “half-step between steps one and two [of the Bruen

test] … disregards both the Second Amendment’s plain text and

Supreme Court precedent”).

This expansive application of Bruen’s footnote 9 is impossible

to square with Bruen’s methodological holding, which requires the

government to justify all firearm regulations as “consistent with

this Nation’s historical tradition of firearm regulation.” Bruen, 597

U.S. at 17. The Court’s recent decision in Wolford highlights that

Bruen’s footnote 9 was not meant to be a “methodological landmine

for lower courts to explode” when it elucidated in no uncertain

terms that the plain text of the Second Amendment consists of

“three subsidiary questions.” Brief Amicus Curiae of Gun Owners

of America et al. 18, Wolford v. Lopez, No. 24-1046 (Nov. 24, 2025)

(first quote); Wolford, 146 S. Ct. at 2043 (second quote). Those

“three subsidiary questions” require a court to answer only

whether the challenged law applies to “the people” and interferes

with the individual right to “keep and bear” “Arms.” Id. Courts

cannot—as the Fifth Circuit and its sister circuits have done—

“smuggle additional limits, drawn from our regular tradition, into

the plain-text stage of the inquiry.” Id. at 2054 n.1 (Barrett, J., concurring).

In contrast to the Fourth, Fifth, and Ninth Circuits, at least

one state court of last resort has limited Bruen’s first step to its

“three subsidiary questions.” Wolford, 146 S. Ct. at 2043. In Commonwealth v. Marquis, 252 N.E.3d 991 (2025), the Massachusetts

Supreme Judicial Court upheld the state’s nonresident firearm licensing scheme utilizing Bruen’s two-step framework, finding that

the scheme comports with our Nation’s historical tradition of firearms regulation under Bruen’s second step. Id. at 997–98. Under

Bruen’s first step, the court reiterated that the “textual question

depends on whether the persons subjected to the regulation at issue are members of ‘the people,’ whether the weapons at issue are

‘[a]rms,’ and whether the specific conduct at issue qualifies as

‘keep[ing]’ or ‘bear[ing]’ within the meaning of the Second Amendment.” Id. at 1007–08. The court acknowledged—and rejected—

the attempt to “include a fourth question in the step one inquiry:

namely, whether the relevant regulation constitutes an ‘infringement.’” Id. at 1008 n.12 (citing Md. Shall Issue, 116 F.4th at 220–

22). The court reasoned that, because any such inquiry “often implicate[s] questions about consistency with history and tradition,”

it was proper to “maintain the three-part analysis of [Bruen’s] step

one.” Id.; see also McCoy v. Jacobson, 176 F.4th 1055, 1057 (8th Cir.

2026) (noting that the “correct manner of analyzing” the constitutionality of “shall-issue permitting regimes” is “subject to some debate”).

3. A conflict also exists over the characterization of the NFA as

a “shall-issue licensing regime.” See DeBorba, 177 F.4th at 1012;

Speed, 175 F.4th at 286; Peterson, 161 F.4th at 339–40. Central to

Peterson’s holding that the NFA is presumptively constitutional

under the plain text of the Second Amendment—which controlled

the panel’s opinion below—is its conclusion that the NFA is a

“shall-issue” licensing regime. 161 F.4th at 339. The Fifth Circuit

reached this conclusion in Peterson based on a “conce[ssion] at oral

argument” and Bruen’s footnote 9. Id. But the NFA is nothing like

the sort of “shall-issue” licensing schemes the Court discussed in

Bruen. Citing 26 U.S.C. § 5822, Peterson claims that “[t]he NFA

provides that the [Bureau of Alcohol, Tobacco, Firearms and Explosives] will deny a firearm-making application if the ‘making or

possession of the firearm would place the person making the firearm in violation of law.”’ Id. The related statutory provision for

transferring NFA firearms is similarly worded. See 26 U.S.C.

§ 5812(a) (“Applications shall be denied if the transfer, receipt, or

possession of the firearm would place the transferee in violation of

law.”).

But these provisions contain no corollary directive that applications “shall be approved” if an applicant meets the statutory criteria. Rather, they simply direct what must happen if an applicant

is ineligible, remaining silent as to all other circumstances. The

NFA therefore stands in stark contrast to the “shall-issue” licensing regimes Bruen discussed, which contain affirmative language

directing authorities to issue licenses—not just deny them. See,

e.g., 18 Pa. Cons. Stat. § 6109(g) (“Upon the receipt of an application for a license to carry a firearm, the sheriff shall, within 45

days, issue or refuse to issue a license ...”).

In contrast with the Fourth, Fifth, and Ninth Circuits, the D.C.

Circuit has explained that the NFA—and § 5812 in particular—is

a provision that “delegate[s] broad authority to the Secretary to

promulgate regulations governing applications under the [NFA].”

Lonmont v. O’Neill, 285 F.3d 9, 16 (D.C. Cir. 2002). Section 5812,

which governs transfers, “provide[s] that applications ‘shall be denied[,]’” but it does not “restrict[] the Secretary’s broad power to

grant or deny applications in any other respect.” Id. at 17. Such a

“broad power to grant or deny” is irreconcilable with the “‘narrow,

objective, and definite standards’ guiding licensing officials” in

quintessentially “shall-issue” licensing regimes. Bruen, 597 U.S.

at 38 n.9.

* * * *

Bruen’s “shall-issue” footnote 9 has become an easy “out” for

judges to avoid historical analysis. The Court should grant the Petition to solve the conflict and clarify that no extra “presumption

of constitutionality” inquiry exists under Bruen’s first step and

that, once the “three subsidiary questions” are met, all firearms

regulations are subject to historical scrutiny under Bruen’s second

step.

II.

This is a critically important and recurring question.

The Court should grant the petition because the question is

critically important and recurring. This case is an ideal vehicle for

addressing this question. The case cleanly presents a purely legal

issue. There are no jurisdictional problems, factual disputes, or

preservation issues. Licon thoroughly briefed his Second Amendment challenges in both the district court and the court of appeals.

The district court and Fifth Circuit squarely rejected both challenges under Bruen’s first step. At minimum, the Court should hold

Licon’s petition pending the decision in Viramontes v. Cook County,

IL, No. 25-238 (U.S.) and Grant v. Higgins, No. 25-566 (U.S.), which

asks whether an AR-15 is a protected arm.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted.