Petition for Writ of Certiorari — Terrance J. Tardieff, Petitioner v. United States

Supreme Court briefSep 9, 2026

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No. ________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

TERRANCE J. TARDIEFF,

Petitioner,

versus

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 A WRIT OF CERTIORARI

__________________________________________________________________

CRISTIE GAUTREAUX GIBBENS

Federal Public Defender

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of

Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

QUESTION PRESENTED

Is the lifetime ban on possession of firearms by all felons, codified at 18 U.S.C.

§ 922(g)(1), plainly unconstitutional on its face under New York State Rifle & Pistol

Association, Inc. v. Bruen, 597 U.S. 1 (2022), because it is permanent and applies to

all persons convicted of felonies?

PARTIES TO THE PROCEEDING

Petitioner is Terrance J. Tardieff, who was the Defendant-Appellant in the

court below. Respondent, the United States of America, was the Plaintiff-Appellee in

the court below.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................... 1

PARTIES TO THE PROCEEDING ............................................................................. 2

TABLE OF CONTENTS ............................................................................................... 3

APPENDIX INDEX ...................................................................................................... 4

TABLE OF AUTHORITIES ......................................................................................... 5

OPINIONS BELOW ..................................................................................................... 8

JURISDICTION............................................................................................................. 8

STATUTORY PROVISIONS INVOLVED .................................................................... 8

INTRODUCTION .......................................................................................................... 9

STATEMENT OF THE CASE..................................................................................... 11

REASONS FOR GRANTING THE WRIT ................................................................. 13

Section 922(g)(1) is facially unconstitutional under the Second

Amendment because there is no historical tradition of prohibiting all

felons from possessing all firearms for life................................................ 13

Bruen represented a fundamental shift in Second Amendment

analysis .............................................................................................. 13

Under the new framework, Section 922(g)(1) violates the Second

Amendment because firearm possession is protected by the

Amendment’s plain text, and the government cannot show a

historical tradition of categorically disarming felons ...................... 15

The text of the Second Amendment covers Mr. Tardieff’s

conduct, and he is among “the people” the Amendment

protects ......................................................................................... 15

There is no relevantly similar historical regulation that bans

firearm possession for life ........................................................... 17

II.

The question whether Section 922(g)(1) violates the Second Amendment

has divided the courts of appeals, this Court has reserved it, and its

resolution is of great importance .............................................................. 25

This Court reserved the question again last Term in Hemani ....... 25

The courts of appeals are irreconcilably divided ............................. 26

The question is of exceptional and recurring importance ............... 29

CONCLUSION ............................................................................................................ 31

APPENDIX INDEX

Fifth Circuit opinion, June 11, 2026 .................................................................App. 001

District court judgment, October 9, 2025 .........................................................App. 003

District court order on motion to dismiss, March 28, 2025..............................App. 010

TABLE OF AUTHORITIES

Binderup v. Attorney General of the U.S., 836 F.3d 336 (3d Cir. 2016) (en banc)

...................................................................................................................... 21-22

Class v. United States, 583 U.S. 174 (2018) ............................................................... 12

District of Columbia v. Heller, 554 U.S. 570 (2008) ............................................passim

Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017) ................................................. 16-17

Folajtar v. Attorney General of the United States, 980 F.3d 897 (3d Cir. 2020) . 21-22

Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) ............................................................. 13

Jennings v. State, 5 Tex. Ct. App. 298 (1878) ............................................................ 24

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting) ................. 20-22

McDonald v. City of Chicago, 561 U.S. 742 (2010) ................................................ 13-14

Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

700 F.3d 185 (5th Cir. 2012) ............................................................................. 13

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

Range v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024) (en banc) . 27

Rehaif v. United States, 588 U.S. 225 (2019) ............................................................. 29

United States v. Chester, 628 F.3d 673 (4th Cir. 2010) .................................. 14, 21-22

United States v. Cockerham, 162 F.4th 500 (5th Cir. 2025)...................................... 28

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) ................................. 11-12, 27-28

United States v. Doucet, No. 24-30656, 2025 WL 3515404 (5th Cir. Dec. 8, 2025) .. 28

United States v. Duarte, 137 F.4th 743 (9th Cir. 2025) (en banc)............................. 26

United States v. Dubois, 139 F.4th 887 (11th Cir. 2025) ........................................... 26

United States v. Hemani, 146 S. Ct. 1677 (2026) ................................................. 10, 25

United States v. Hembree, 165 F.4th 909 (5th Cir. 2026) ......................................... 28

United States v. Hunt, 123 F.4th 697 (4th Cir. 2024)................................................ 26

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024) ......................................... 26

United States v. Lara, 815 F.3d 605 (9th Cir. 2016) .................................................. 16

United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020) ..................................... 13-14

United States v. Prince, 171 F.4th 1009 (7th Cir. 2026) ....................................... 28-29

United States v. Rahimi, 602 U.S. 680 (2024) .....................................................passim

United States v. Schnur, 132 F.4th 863 (5th Cir. 2025) ............................................ 12

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).......................................... 16

United States v. Watson, 171 F.4th 1012 (7th Cir. 2026) .......................................... 29

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)..................................... 26-27

Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025) ..................................................... 26

Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025) ............................................................. 26

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. amend. I .................................................................................................... 16

U.S. Const. amend. II (“Second Amendment”) ....................................................passim

U.S. Const. amend. IV ................................................................................................. 16

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

18 U.S.C. § 922(g)(3) .............................................................................................. 10, 25

18 U.S.C. § 922(g)(8) .............................................................................................. 17, 25

28 U.S.C. § 1254(1) ........................................................................................................ 8

La. R.S. § 14:62 ............................................................................................................ 11

La. R.S. § 14:65 ............................................................................................................ 11

La. R.S. § 14:67 ............................................................................................................ 11

1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688) ................................... 21

Sec’y of the Commonwealth, Acts and Resolves of Massachusetts 1786–87 (1893) . 23

OTHER AUTHORITIES

Adam Winkler, Heller’s Catch-22, 56 U.C.L.A. L. Rev. 1551 (2009) ......................... 19

C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub.

Policy 695 (2009) ............................................................................................... 20

Dep’t of Justice, Bureau of Justice Statistics, Mark A. Motivans, Federal Justice

Statistics, 2022 (Jan. 2024) .............................................................................. 30

Dep’t of Justice, Bureau of Justice Statistics, Sean Rosenmerkel et al., Felony

Sentences in State Courts, 2006—Statistical Tables (rev. Nov. 2010) ........... 30

Dru Stevenson, In Defense of Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573

(2022) ................................................................................................................. 30

Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous

Persons from Possessing Arms, 20 Wyo. L. Rev. 249 (2020) ..................... 20, 22

Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms

in Early America: The Legal Context of the Second Amendment, 25 Law &

Hist. Rev. 139 (2007) ......................................................................................... 22

Steven G. Bradbury, et al., Whether the Second Amendment Secures an Individual

Right, 28 Op. O.L.C. 126 (2004) ....................................................................... 23

U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses (FY 2025) 29

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit

affirming petitioner’s conviction is unpublished and is set forth at App. 001.

JURISDICTION

The judgment of the court of appeals was entered on June 11, 2026. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 922(g)(1) states in relevant part:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year;

***

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

affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.

The Second Amendment to the U.S. Constitution provides in relevant part:

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.

INTRODUCTION

Section 922(g)(1) forbids every person convicted of any felony from possessing

any firearm, anywhere, for any purpose, for the rest of his life. It requires no finding

that the person is dangerous. It has no end date. Nothing resembling it existed in

England before the founding, in the colonies, in the early Republic, in antebellum

America, or during Reconstruction. The first federal statute disarming any class of

convicted persons was not enacted until 1938, 147 years after ratification, and it

reached only those convicted of enumerated crimes of violence. Congress did not

disarm felons as a class until 1961, and the prohibition took its present form in 1968,

177 years after the Second Amendment was ratified.

Terrance Tardieff was convicted under that statute and sentenced to fiftyseven months of imprisonment. He argued in the district court and in the Fifth

Circuit that § 922(g)(1) cannot be squared with the Second Amendment as this Court

construed it in Bruen. Both courts held the argument foreclosed by circuit precedent.

The Fifth Circuit did so on an unopposed motion for summary affirmance, in a twopage unpublished order. App. 001.

The courts of appeals are not going to resolve this. Six circuits hold that a

felony conviction ends the inquiry. Two permit a defendant to show that he may keep

his arms notwithstanding a conviction. The Fifth Circuit asks instead how the

founding generation punished the particular offense, an approach that has produced

opposite results on comparable records within that circuit in the space of a single

year. The Seventh Circuit has expressly reserved the question. Four years after

Bruen and two after Rahimi, the disagreement has hardened rather than resolved.

Nor has this Court supplied one. Last Term, in holding that a prosecution

under § 922(g)(3) violated the Second Amendment, it declined to reach the provision

at issue here, saying in terms that it did “not address 18 U.S.C. §922(g)(1)’s provision

disarming individuals convicted of felonies.” United States v. Hemani, 608 U.S. ----,

146 S. Ct. 1677, 1693 (2026).

Bruen assigned the government the burden of affirmatively proving that a

modern firearm regulation is part of the historical tradition that delimits the outer

bounds of the right to keep and bear arms. For the broadest disarmament statute in

the United States Code, a statute that reaches millions of Americans and roughly one

in ten federal sentencings each year, that burden has never been carried, and the

lower courts cannot agree on whether it must be. The question is ripe, it is important,

and this case presents it squarely.

STATEMENT OF THE CASE

Terrance J. Tardieff’s prosecution under 18 U.S.C. § 922(g)(1) rested on four

prior Louisiana felony convictions. ROA.210. Three are property offenses: two

convictions for simple burglary under La. R.S. 14:62, entered on April 1, 2008 and

February 28, 2011, and one for felony theft under La. R.S. 14:67, entered on February

21, 2018. The fourth is simple robbery under La. R.S. 14:65, a charge amended down

from armed robbery. The burglary and robbery convictions entered on April 1, 2008

rest on conduct committed when Mr. Tardieff was eighteen years old. ROA.349-54,

357-62, 364, 367-68, 373-74. In each of those proceedings the state sentencing court

found on the record that he was not convicted of a crime of violence. ROA.351, 353,

361, 364.

On November 3, 2022, a grand jury in the Middle District of Louisiana charged

Mr. Tardieff with one count of possession of a firearm by a convicted felon in violation

of 18 U.S.C. § 922(g)(1). ROA.13. The indictment alleged that on July 4, 2022, he

knowingly possessed a SCCY model CPX-2 nine-millimeter pistol. ROA.13.

Mr. Tardieff moved to dismiss the indictment, arguing that § 922(g)(1) is

unconstitutional on its face and as applied to him under Bruen. ROA.47. The district

court stayed the case pending this Court’s decision in United States v. Rahimi, 602

U.S. 680 (2024), and then ordered further briefing in light of United States v. Diaz,

116 F.4th 458 (5th Cir. 2024). The parties briefed the question fully, ROA.80-93, 12857, 186-208, and the district court heard argument on February 27, 2025, ROA.209,

258-309. The district court denied the motion in a two-page ruling that relied on its

decision in another case. ROA.210-11.

Mr. Tardieff pleaded guilty on April 29, 2025. ROA.214, 310-27. The factual

basis was that on July 4, 2022, he knowingly possessed the pistol in Baton Rouge.

ROA.322-23. The district court sentenced him to fifty-seven months of imprisonment,

to run concurrently with his state sentences, and three years of supervised release.

ROA.247-53, 339-40. He timely appealed. ROA.256.

The Fifth Circuit granted the government’s unopposed motion for summary

affirmance and affirmed in an unpublished per curiam order, holding the claims

foreclosed by United States v. Schnur, 132 F.4th 863 (5th Cir. 2025), and Diaz. App.

001. No petition for rehearing was filed.

Mr. Tardieff’s guilty plea did not waive his challenge to the constitutionality of

the statute of conviction. Class v. United States, 583 U.S. 174, 178 (2018). The court

of appeals rejected the claim as foreclosed by circuit precedent rather than on any

procedural ground. App. 001.

REASONS FOR GRANTING THE WRIT

Section 922(g)(1) is facially unconstitutional under the Second Amendment

because there is no historical tradition of prohibiting all felons from possessing

all firearms for life

Bruen represented a fundamental shift in Second Amendment analysis

The Second Amendment to the U.S. Constitution mandates that 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. In

District of Columbia v. Heller, this Court held that the Second Amendment codifies

an individual right to possess and carry weapons, explaining that the inherent right

of self-defense is central to its protections. 554 U.S. 570, 628 (2008); see also

McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (holding “that individual selfdefense is the central component of the Second Amendment right”).

Following Heller, but before Bruen, the Fifth Circuit and others “adopted a

two-step inquiry for analyzing laws that might impact the Second Amendment.”

Hollis v. Lynch, 827 F.3d 436, 446 (5th Cir. 2016). First, courts asked “whether the

challenged law impinge[d] upon a right protected by the Second Amendment—that

is, whether the law regulate[d] conduct that falls within the scope of the Second

Amendment’s guarantee.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco,

Firearms & Explosives [NRA], 700 F.3d 185, 194 (5th Cir. 2012); see also United

States v. McGinnis, 956 F.3d 747, 754 (5th Cir. 2020). To make that determination,

courts “look[ed] to whether the law harmonize[d] with the historical traditions

associated with the Second Amendment guarantee.” NRA, 700 F.3d at 194. If the

regulated conduct was deemed to fall outside the scope of the Second Amendment’s

protection under that framework, then the law was deemed constitutional without

further analysis. McGinnis, 956 F.3d at 754.

However, if the regulated conduct fell within the protective scope of the Second

Amendment, courts proceeded to step two: determining and applying “the

appropriate level of means-ends scrutiny—either strict or intermediate.” Id. (internal

quotation marks and citation omitted). “[T]he appropriate level of scrutiny

‘depend[ed] on the nature of the conduct being regulated and the degree to which the

challenged law burden[ed] the right.” NRA, 700 F.3d at 195 (quoting United States

v. Chester, 628 F.3d 673, 682 (4th Cir. 2010)). Under that framework, “a ‘regulation

that threaten[ed] a right at the core of the Second Amendment’—i.e., the right to

possess a firearm for self-defense in the home—‘trigger[ed] strict scrutiny,’ while ‘a

regulation that does not encroach on the core of the Second Amendment’ [was]

evaluated under intermediate scrutiny.” McGinnis, 956 F.3d at 754 (quoting NRA,

700 F.3d at 194).

In Bruen, this Court expressly abrogated the two-step inquiry adopted by the

Fifth Circuit and others and announced a new framework for analyzing Second

Amendment claims. The Court reasoned that “[s]tep one of the predominant

framework is broadly consistent with Heller, which demands a test rooted in the

Second Amendment’s text, as informed by history.” Bruen, 597 U.S. at 19. However,

Bruen rejected the practice of applying “means-end scrutiny” to conduct deemed

protected, explaining that “Heller and McDonald do not support applying means-end

scrutiny in the Second Amendment context.” Id. Under Bruen’s newly announced

framework, “when the Second Amendment’s plain text covers an individual’s conduct,

the Constitution presumptively protects that conduct.” Id. at 17. And, upon such a

finding, “[t]he 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 upon the government making such a showing may a court “conclude that the

individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

Id. (citation omitted). In other words, for a firearm regulation to pass constitutional

muster, “the government must affirmatively prove that its firearms regulation is part

of the historical tradition that delimits the outer bounds of the right to keep and bear

arms.” Id. at 19.

Under the new framework, Section 922(g)(1) violates the Second

Amendment because firearm possession is protected by the

Amendment’s plain text, and the government cannot show a historical

tradition of categorically disarming felons

Straightforward application of Bruen’s test makes clear that Section 922(g)(1)

cannot survive constitutional scrutiny, and the Fifth Circuit was wrong to hold

otherwise.

The text of the Second Amendment covers Mr. Tardieff’s conduct,

and he is among “the people” the Amendment protects

The plain text of the Second Amendment protects the right to possess and carry

weapons for self-defense. See Heller, 554 U.S. at 583-92. And Bruen clarified that this

right extends outside of the home. 597 U.S. at 10. Section 922(g)(1) is a permanent

and complete ban on any firearm possession by felons in any context. Thus, the

statute regulates, and in fact fully prohibits, conduct that is presumptively protected

under the plain text of the Second Amendment. As a result, the statute is

presumptively unconstitutional under Bruen. Id. at 24.

In an attempt to sidestep this straightforward conclusion, the government has

adopted a novel argument that a person’s status as a “felon” excludes that person

from the Second Amendment’s protections. But the plain text of the Second

Amendment and this Court’s precedent hold otherwise. In Heller, this Court rejected

the theory that “the people” protected by the Second Amendment was limited to a

specific subset, that is, those in a militia. 554 U.S. at 579-81, 592-600. The Court

explained that when the Constitution refers to “‘the people,’ the term unambiguously

refers to all members of the political community, not an unspecified subset,” and there

is thus a “strong presumption that the Second Amendment right is exercised

individually and belongs to all Americans.” Id. at 580-81.

Comparison to other constitutional amendments confirms this view. As Heller

explained, “the people” is a “term of art employed in select parts of the Constitution,”

including “the Fourth Amendment, . . . the First and Second Amendments, and . . .

the Ninth and Tenth Amendments.” Id. (quoting United States v. Verdugo-Urquidez,

494 U.S. 259, 265 (1990)). It is beyond challenge that felons are among “the people”

whose “persons, houses, papers, and effects” enjoy Fourth Amendment protection.

U.S. Const. amend. IV; see United States v. Lara, 815 F.3d 605 (9th Cir. 2016). And

felons likewise enjoy “the right of the people” to “petition the government for a redress

of grievances.” U.S. Const. amend. I; see Entler v. Gregoire, 872 F.3d 1031, 1039 (9th

Cir. 2017). If a person with a felony conviction is one of “the people” protected by the

First and Fourth Amendments, Heller teaches that he is one of “the people” protected

by the Second Amendment, too.

This view was confirmed when this Court addressed a challenge to a different

subsection of § 922(g) in United States v. Rahimi, 602 U.S. 680 (2024). The Court

analyzed historical laws dealing with dangerous persons to find that § 922(g)(8) was

consistent with historical tradition and therefore constitutional. Id. at 693-96. But

the Court never suggested for a moment that Mr. Rahimi was not one of “the people”

protected by the Second Amendment. Accordingly, Mr. Tardieff is among “the people”

to whom the Second Amendment applies.

There is no relevantly similar historical regulation that bans

firearm possession for life

Bruen provided guidance on conducting historical analysis in the hunt for

relevantly similar regulations. The Court can consider “whether ‘historical precedent’

from before, during, and even after the founding evinces a comparable tradition of

regulation.” Bruen, 597 U.S. at 27. But Bruen reminded that “not all history is

created equal.” Id. at 34. That is because “[c]onstitutional rights are enshrined with

the scope they were understood to have when the people adopted them.” Id. (quotation

marks omitted). Because the Second Amendment was adopted in 1791, earlier

historical evidence “may not illuminate the scope of the right if linguistic or legal

conventions changed in the intervening years.” Id. Similarly, post-ratification laws

that “are inconsistent with the original meaning of the constitutional text obviously

cannot overcome or alter that text.” Id. at 36 (quotation marks and emphasis

omitted).

Bruen, and later Rahimi, also offered analytical guidance for evaluating

historical clues. As this Court explained in Rahimi: “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.’” Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29). In doing so,

“[w]hy and how the regulation burdens the right are central to this inquiry.” Id. Thus,

“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.” Id. Importantly,

though, “[e]ven when a law regulates arms-bearing for a permissible reason, . . . it

may not be compatible with the right if it does so to an extent beyond what was done

at the founding.” Id. And this Court made clear that the burden falls squarely on the

government to “affirmatively prove that its firearms regulation is part of the

historical tradition that delimits the outer bounds of the right to keep and bear arms.”

Bruen, 597 U.S. at 19. If the government cannot do so, the infringement on the right

cannot survive.

In Heller, this Court confirmed an individual’s right to keep and bear arms but

cautioned that this right is “not unlimited.” 554 U.S. at 626. In the same passage the

Court wrote: “Although we do not undertake an exhaustive historical analysis today

of the full scope of the Second Amendment, 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, or laws imposing conditions and qualifications

on the commercial sale of arms.” Id. at 626-27. That list was dicta, offered “only as

examples” and expressly not purporting “to be exhaustive.” Id. at 627 n.26. No

historical analysis accompanied it. And since this was the Court’s “first in-depth

examination of the Second Amendment,” Heller explained that it could not “clarify

the entire field.” Id. at 635. But Heller promised that there would be “time enough to

expound upon the historical justifications for the exceptions we have mentioned if

and when those exceptions come before us.” Id. That time is now. The government

cannot meet its burden to establish the requisite “relevantly similar” historical

tradition. Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29).

The government cannot meet its burden to establish Section 922(g)(1)’s

historical pedigree for a simple reason: neither the federal government nor a single

state barred all people convicted of felonies until the twentieth century. See, e.g.,

Adam Winkler, Heller’s Catch-22, 56 U.C.L.A. L. Rev. 1551, 1563 (2009). The modern

version of Section 922(g)(1) was adopted 177 years after the Second Amendment.

Bruen, 597 U.S. at 66 n.28 (“[L]ate-19th-century evidence” and any “20th-century

evidence . . . does not provide insight into the meaning of the Second Amendment

when it contradicts earlier evidence.”).

Section 922(g)(1) very much contradicts earlier evidence from the relevant

historical periods: “(1) . . . early modern England; (2) the American Colonies and the

early Republic; (3) antebellum America; (4) Reconstruction . . . .” Bruen, 597 U.S. at

34. Those periods lack evidence of any analogue to Section 922(g)(1).

The government may argue that, historically, some jurisdictions sometimes

regulated firearm use by those considered presently violent. But not all people with

a felony conviction are presently violent. Moreover, the historical regulations

required an individualized assessment of a person’s threat to society. And finally, the

historical regulations almost always allowed people deemed violent to still possess

weapons for self-defense. Thus, even those convicted of serious crimes, including

rebellion, remained entitled to protect themselves in a dangerous world, with

firearms if necessary. Those laws’ targeted nature makes them a far cry from

declaring that any person, convicted of any felony, can never possess “the most

popular weapon chosen by Americans for self-defense in the home.” Heller, 554 U.S.

at 629.

England, before the founding, did not ban felons from ever again possessing a

firearm. See Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting);

C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub.

Policy 695, 717 (2009); Joseph G.S. Greenlee, The Historical Justification for

Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 260

(2020). To the extent that England sought to disarm individuals, those regulations

usually required a more culpable mental state and made exceptions for self-defense,

both features absent from Section 922(g)(1). Rahimi discusses at length the surety

laws and laws against affray or going armed against the king’s subjects. 602 U.S. at

693-99.

To the extent that England tried to disarm whole classes of subjects, it did so

on discriminatory grounds that would be unconstitutional today, and yet still

permitted those targeted to keep arms for self-defense. For example, in the age of

William and Mary, both Protestants, Catholics were presumed loyal to James II, a

Catholic trying to retake the throne, and treasonous. Yet even Catholics, who as this

Court has noted “fell beyond the protection of the right to have arms, and who were

stripped of all ‘Arms, Weapons, Gunpowder, [and] Ammunition,’ were at least allowed

to keep ‘such necessary Weapons as shall be allowed . . . by Order of the Justices of

the Peace . . . for the Defence of his House or Person.’” Bruen, 597 U.S. at 45 n.12

(quoting 1 Wm. & Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688)). In short, the

English never tried to disarm all felons. Rather, they tried to limit the use of firearms

by those individuals found to be violent and rebellious. And even those individuals

could keep arms for self-defense. A “relevantly similar” historical regulation that is

not. Bruen, 597 U.S. at 29.

There is likewise little evidence of an early American practice of forever

barring all people convicted of a felony from ever again possessing a firearm. The

early United States accepted that those who committed crimes, even serious ones,

retained a right to defend themselves. That can be seen in the colonies’ and states’

statutes, early American practice, and rejected proposals from state constitutional

conventions. See Kanter, 919 F.3d at 454 (Barrett, J., dissenting); Folajtar v. Att'y

Gen. of the United States, 980 F.3d 897, 915 (3d Cir. 2020) (Bibas, J., dissenting);

Chester, 628 F.3d at 681; Binderup v. Att’y Gen. of the U.S., 836 F.3d 336, 368 (3d

Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the

judgments).

To the extent that the new nation sought to disarm people, the regulatory

approach was much more limited than Section 922(g)(1). For example, in 1756

Virginia ordered the disarmament of everyone who refused a statutory test of

allegiance, a measure that reached Catholics but turned on allegiance rather than

faith. Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep

Arms in Early America: The Legal Context of the Second Amendment, 25 Law & Hist.

Rev. 139, 157 (2007). Even then there was an exception for weapons allowed by a

justice of the peace “for the defense of his house and person,” and the act directed the

justices to return the arms of anyone who later submitted to the test. Id. And

following the Declaration of Independence, Pennsylvania ordered that those who did

not pledge allegiance to the Commonwealth and renounce British authority be

disarmed. Id. at 159. Thus, to the extent that either regulation would comply with

the Second Amendment as understood today, they required a specific finding that a

specific person posed a risk of violence to the state.

Colonial and founding-era practice also suggests that committing a serious

crime did not result in permanent disarmament. For example, leaders of the seminal

Massachusetts Bay colony once disarmed supporters of a banished seditionist.

Greenlee, supra, at 263. Nevertheless, “[s]ome supporters who confessed their sins

were welcomed back into the community and able to retain their arms.” Id. And in

1787, after the participants in Shays’ Rebellion attacked courthouses, a federal

arsenal, and the Massachusetts militia, they were barred from bearing arms for three

years, not for life. Id. at 268-69. In fact, Massachusetts law required the

Commonwealth to hold and then return the rebels’ arms after that period. Sec’y of

the Commonwealth, Acts and Resolves of Massachusetts 1786–87, at 178 (1893).

American practice and laws during the nineteenth century, before and after

the Civil War, also confirm that Section 922(g)(1) does not comport with the “Nation’s

historical tradition of firearm regulation.” Bruen, 597 U.S. at 34. The United States

continued to regulate, but not ban, firearm possession by those feared to be violent.

See id. at 56 (explaining that nineteenth century surety laws allowed people likely to

breach the peace to still keep guns for self-defense or if they posted a bond). But, as

discussed above, that is not similar to Section 922(g)(1). There is no evidence of a

precursor to Section 922(g)(1)’s broad, categorical ban. In fact, there are at least two

documented instances where attempts to disarm a class of offenders were rejected as

inconsistent with the right to bear arms.

First, as with Shays’ Rebellion, when Congress disbanded the organized militia

forces of the former Confederate States after the Civil War, it declined to disarm their

members. Steven G. Bradbury, et al., Whether the Second Amendment Secures an

Individual Right, 28 Op. O.L.C. 126, 2004 WL 2930974, *59 (2004). The bill’s sponsor

struck the word “disarmed” from the provision in the face of opposition from several

northern senators, who objected that disarming the citizens from whom the militia

was drawn “would violate the Second Amendment.” Id. Second, when a Texas law

ordered that people convicted of unlawfully using a pistol be disarmed, it was struck

down as unconstitutional under the Texas constitution. Jennings v. State, 5 Tex. Ct.

App. 298, 298 (1878).

In sum, the nineteenth century history provides clear evidence that mass

disarmament for people convicted of an offense is unconstitutional. Not only was

there a consistent practice of allowing people who broke the law to keep weapons for

self-defense; at least one state appellate court and Congress agreed that disarming

lawbreakers was unconstitutional. As Bruen teaches: “[I]f some jurisdictions actually

attempted to enact analogous regulations during this timeframe, but those proposals

were rejected on constitutional grounds, that rejection surely would provide some

probative evidence of unconstitutionality.” 597 U.S. at 27.

Rahimi did not affect this analysis, and in fact made all the clearer Section

922(g)(1)’s lack of constitutional backing. The prohibition there passed constitutional

muster because there were historical analogues temporarily disarming those proven

to be presently violent. 602 U.S. at 695-98. The restraining order subsection of §

922(g) passed constitutional muster because there is an individualized finding of

dangerousness, after notice and an opportunity to be heard, and the restriction lasts

only as long as the restraining order does. Id. at 688-89, 699.

Again, “[w]hy and how the regulation burdens the right are central to this

inquiry.” Id. at 692. Section 922(g)(1) contains a lifetime prohibition on possession of

firearms by all convicted felons, without an individualized determination of ongoing

dangerousness. It therefore violates the Second Amendment on its face, and Mr.

Tardieff’s conviction under Section 922(g)(1) must be vacated.

II.

The question whether Section 922(g)(1) violates the Second Amendment has

divided the courts of appeals, this Court has reserved it, and its resolution is

of great importance

This Court reserved the question again last Term in Hemani

Last Term this Court held that the government’s prosecution of a defendant

under the unlawful-user provision of 18 U.S.C. § 922(g)(3) violated the Second

Amendment. United States v. Hemani, 146 S. Ct. 1677 (2026). In doing so the Court

expressly declined to decide the question presented here. It stated: “We do not address

18 U.S.C. §922(g)(1)’s provision disarming individuals convicted of felonies (often

including drug-related ones).” Id. at 1693. In a footnote the Court explained that

subsections (g)(1) and (g)(4) “involve some manner of pre-deprivation process before

an individual’s Second Amendment rights are lost,” and that “[f]or that reason, they

differ from subsection (g)(3) and ‘nothing in our opinion should be taken to cast doubt’

on them.” Id. at 1692 n.6 (quoting Heller, 554 U.S. at 626).

Hemani confirms both that a subsection of § 922(g) can fail Bruen’s test and

that the broadest subsection of all remains unexamined. The footnote’s reference to

pre-deprivation process does not answer the facial question. Whatever process a

criminal prosecution supplies, it is process directed at a different question. A

conviction establishes that the defendant committed the offense charged. It involves

no finding, and gives the defendant no occasion to contest, whether he can safely be

trusted with a firearm at any point in the decades that follow. Section 922(g)(8), which

this Court upheld in Rahimi, required a judicial finding that the defendant posed a

credible threat to the physical safety of another, after notice and an opportunity to be

heard, and it lasted only as long as the order that produced it. 602 U.S. at 688-89,

699. Section 922(g)(1) requires no such finding and never ends.

The courts of appeals are irreconcilably divided

Since Bruen, the courts of appeals have reached irreconcilable conclusions

about how to analyze Second Amendment challenges to § 922(g)(1), and defendants

with materially identical records now obtain opposite results depending on where

they are prosecuted.

A first group of circuits has foreclosed such challenges altogether. The Eighth

Circuit held in United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024), that

legislatures historically had broad authority to disqualify categories of persons from

possessing firearms, that Congress acted within that tradition, and that

individualized determinations of dangerousness are not required. Id. at 1125-29. The

en banc Ninth Circuit reached the same result in United States v. Duarte, 137 F.4th

743 (9th Cir. 2025) (en banc). The Second, Fourth, Tenth, and Eleventh Circuits have

taken the same position. See Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025); United

States v. Hunt, 123 F.4th 697 (4th Cir. 2024); Vincent v. Bondi, 127 F.4th 1263 (10th

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

A second group permits as-applied challenges, and one of the two has granted

relief. The Sixth Circuit held in United States v. Williams, 113 F.4th 637 (6th Cir.

2024), that governments have traditionally had authority to disarm groups deemed

dangerous, provided that individuals within those groups have an opportunity to

show they do not pose a danger, and that courts should consider a defendant's entire

criminal record and assess whether his offenses fall into historically recognized

categories of dangerous crimes. Id. at 657-61. Williams itself rejected a facial

challenge, upheld the statute as applied to a defendant whose prior convictions

included aggravated robbery and attempted murder, and affirmed. Id. at 642,

657.The en banc Third Circuit held § 922(g)(1) unconstitutional as applied to a man

whose prior conviction was for making false statements to obtain food stamps. Range

v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024) (en banc). It rejected

the contention that a past conviction removes a person from “the people,” id. at 22628, and held that the government had failed to demonstrate a tradition of imposing

anything near a permanent ban on firearm possession on account of past misdeeds,

id. at 228-32. Aligning itself with the Sixth Circuit, it refused to “defer blindly to §

922(g)(1) in its present form,” faulting the statute as “far too broad[]” and as operating

“at such a high level of generality that it waters down the right.” Id. at 229-30

(quoting Bruen, 597 U.S. at 31, and Rahimi, 602 U.S. at 740 (Barrett, J., concurring)).

The Fifth Circuit occupies a third position. It has rejected facial challenges but

asks, offense by offense, how the founding generation punished the crime that

produced the conviction. In Diaz, the court parted ways with other circuits by holding

that Bruen abrogated its prior decisions upholding § 922(g)(1), that Heller’s reference

to “longstanding prohibitions on the possession of firearms by felons” was not binding

precedent, and that felons are among “the people” protected by the Second

Amendment. 116 F.4th at 465-66 & n.2. It nonetheless upheld the statute as applied

to that defendant because “[a]t the time of the Second Amendment’s ratification,

those—like Diaz—guilty of certain crimes—like theft—were punished permanently

and severely.” Id. at 472. The court cautioned that “not all felons today would have

been considered felons at the Founding,” id. at 469, and expressly reserved the future:

“[o]ur opinion today does not foreclose future as-applied challenges by defendants

with different predicate convictions.” Id. at 470 n.4.

That approach has proved unstable in practice. In the year before Mr.

Tardieff’s appeal was decided, the Fifth Circuit held § 922(g)(1) unconstitutional in

three cases while affirming in others on comparable records. See United States v.

Cockerham, 162 F.4th 500 (5th Cir. 2025) (felony nonpayment of child support);

United States v. Hembree, 165 F.4th 909 (5th Cir. 2026) (simple possession of

methamphetamine); United States v. Doucet, No. 24-30656, 2025 WL 3515404 (5th

Cir. Dec. 8, 2025) (unpublished) (attempted cultivation of marijuana). Whether a

defendant keeps his Second Amendment rights in that circuit turns on how closely a

modern statutory label tracks an offense that was severely punished at common law,

a question on which the panels have not converged.

The Seventh Circuit has reserved the merits. In United States v. Prince, it

declined to decide whether § 922(g)(1) may constitutionally be applied to a person

whose felony convictions do not suggest that firearms would be dangerous in his

hands, observing that “the one thing on which all courts of appeals that have

addressed the question after Bruen agree is that § 922(g)(1) is valid in many

applications and cannot be declared unconstitutional ‘on its face.’” 171 F.4th 1009,

1011 (7th Cir. 2026); accord United States v. Watson, 171 F.4th 1012, 1025 (7th Cir.

2026). That agreement reflects the demands of the facial-challenge standard rather

than a considered judgment that the statute’s central applications are valid. Prince

illustrates the point because the court reached its conclusion after noting that counsel

had disclaimed any as-applied challenge, that the defendant’s prior convictions were

for armed robbery and aggravated battery, and that “[i]t would not be possible to

argue with a straight face that firearms are harmless in Prince’s hands.” Id.

The division is not academic. The same statute, measured against the same

Constitution, is invariably valid in six circuits, subject to defeasance in two,

contingent on founding-era punishment practice in a ninth, and an open question in

a tenth. That is not a stable constitutional rule, and only this Court can supply one.

The question is of exceptional and recurring importance

Resolving the question presented matters far beyond this case. As Justice Alito

has observed, “§ 922(g) is no minor provision.” Rehaif v. United States, 588 U.S. 225,

239 (2019) (Alito, J., dissenting). Of the 66,662 cases reported to the United States

Sentencing Commission in fiscal year 2025, 7,245 involved convictions under § 922(g),

and eighty-nine percent of those rested on a prior felony conviction. U.S. Sent’g

Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses 1 (FY 2025). By those

figures, sentencings under § 922(g)(1) account for roughly one in ten federal

sentencings each year. The government has itself acknowledged “the special need for

certainty about Section 922(g)(1) given the frequency with which the government

brings criminal cases under it.” Gov’t Supp. Br. at 9 n.5, Garland v. Range, No. 23374 (U.S. June 24, 2024).

Beyond new prosecutions, the statute’s reach is staggering. It prohibits

millions of Americans from exercising their right to keep and bear arms for the rest

of their lives. Recent estimates of the number of individuals with felony convictions

range from nineteen million to twenty-four million. Dru Stevenson, In Defense of

Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573, 1591 (2022). And § 922(g)(1) is

particularly troubling because most of the people it disarms are peaceful, with

convictions for nonviolent offenses only. Less than twenty percent of state felony

convictions and less than five percent of federal felony convictions are for violent

offenses. See Dep’t of Justice, Bureau of Justice Statistics, Sean Rosenmerkel et al.,

Felony Sentences in State Courts, 2006—Statistical Tables, at 3 tbl.1.1 (rev. Nov.

2010); Dep’t of Justice, Bureau of Justice Statistics, Mark A. Motivans, Federal

Justice Statistics, 2022, at 12 tbl.7 (Jan. 2024).

Mr. Tardieff is one of them. Three of his four convictions are property offenses,

the fourth was reduced from armed robbery to simple robbery, and the state

sentencing courts found on the record that the burglary and robbery convictions were

not crimes of violence. The United States has nonetheless disarmed him

permanently. Whether it may do so is a question the lower courts have now answered

in incompatible ways, that this Court has expressly left open, and that governs the

liberty of millions of Americans and the validity of thousands of federal convictions

each year. This Court should answer it now.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted this September 9, 2026,

CRISTIE GAUTREAUX GIBBENS

Federal Public Defender

BY:

s/ Dustin C. Talbot

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

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