`
`No. ___________________
`
`
`
`
`RUDY MARIO FLORES, PETITIONER,
`
`V.
`
`UNITED STATES OF AMERICA, RESPONDENT.
`
`
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Fifth Circuit
`
`
`PETITION FOR WRIT OF CERTIORARI
`
`
`MAUREEN SCOTT FRANCO
`Federal Public Defender
`BRADFORD W. BOGAN
`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
`brad_bogan@fd.org
`(210) 472-6700
`
`Counsel for Petitioner
`
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`i
`Question Presented
`Whether 18 U.S.C. § 922(g)(1), the federal statute that prohibits
`anyone who has been convicted of “ a crime punishable by
`imprisonment for a term exceeding one year” from possessing a
`firearm, violates the Second Amendment either facially or as
`applied to individuals with prior convictions for non- violent
`offenses.
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`ii
`Related Proceedings
`United States District Court for the Western District of Texas:
`United States v. Flores, No. 5: 23-cr-24-DAE-1 (June 6, 2024 )
`(criminal judgment)
`United States Court of Appeals for the Fifth Circuit:
`United States v. Flores, No. 24- 50459 ( June 30, 2025) (per
`curiam)
`
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`iii
`Table of Contents
`Question Presented ........................................................................... i
`Related Proceedings ......................................................................... ii
`Table of Contents ............................................................................ iii
`Table of Authorities ........................................................................... v
`Introduction .......................................................................................1
`Opinion Below ...................................................................................4
`Jurisdiction........................................................................................5
`Constitutional and Statutory Provisions Involved .........................5
`Statement ..........................................................................................5
`A. Legal background. .........................................................5
`B. Proceedings below. ...................................................... 11
`Reasons for Granting the Petition ................................................ 16
`I. The courts of appeals are deeply divided over the scope of
`a fundamental constitutional right. ................................. 16
`II. The decision below is wrong and conflicts with this Court’s
`precedent. ........................................................................... 25
`
`A. Section 922(g)(1) is facially unconstitutional because it
`imposes an unprecedented lifetime ban on firearm
`possession. .................................................................. 26
`
`B. Section 922(g)(1) is unconstitutional as applied to
`individuals based on their prior non -violent felony
`convictions. ................................................................. 32
`III. This is a critically important and recurring question. .... 35
`
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`iv
`IV. This case is an ideal vehicle for addressing this question.
` ............................................................................................ 36
`Conclusion ...................................................................................... 37
`
`Appendix
`United States v. Flores,
`No. 24-50459 (5th Cir. June 30, 2025) .................................... 1a–2a
`
`
`
`
`
`
`
`
`
`v
`Table of Authorities
`Cases
`Barrett v. United States,
`423 U.S. 212 (1976) ...................................................................... 7
`Binderup v. Attorney General,
`836 F.3d 336 (3d Cir. 2016) (en banc) ........................................ 10
`District of Columbia v. Heller,
`554 U.S. 570 (2008) ............................................................ 8, 9, 25
`Kanter v. Barr, 919 F.3d 437
` (7th Cir. 2019) ........................................................ 5, 9, 14, 31, 33
`Lewis v. United States,
`445 U.S. 55 (1980) .................................................................. 7, 27
`NYSRPA v. Bruen,
`597 U.S. 1 (2022) ...................... 1, 3, 10–12, 20, 26–28, 30–31, 33
`Range v. Attorney General,
`124 F.4th 218 (3d Cir. 2024) (en banc) ................................ 17, 18
`Rehaif v. United States,
`588 U.S. 225 (2019) .................................................................... 35
`Scarborough v. United States,
`431 U.S. 563 (1977) ...................................................................... 7
`TikTok v. Garland,
`145 S. Ct. 57 (2025) .................................................................... 34
`Tot v. United States,
`319 U.S. 463 (1943) ...................................................................... 6
`United States v. Bullock,
`123 F.4th 183 (5th Cir. 2024) ............................................... 25, 27
`United States v. Contreras,
`125 F.4th 725 (5th Cir. 2025) ..................................................... 25
`
`
`
`
`
`
`
`
`
`vi
`United States v. Diaz,
`116 F.4th 458 (5th Cir. 2024) ....................... 13–15, 23–25, 27–32
`United States v. Duarte,
`101 F.4th 657 (9th Cir. 2024),
`reh’g en banc granted, opinion vacated,
`108 F.4th 786 (9th Cir. 2024) ..................................................... 21
`United States v. Duarte,
`137 F.4th 743 (9th Cir. 2025) (en banc) ............................... 21–22
`United States v. Dubois,
`139 F.4th 887 (11th Cir. 2025) ................................................... 23
`United States v. Eichman,
`496 U.S. 310 (1990) .................................................................... 34
`United States v. Focia,
`869 F.3d 1269 (11th Cir. 2017) ..................................................... 9
`United States v. Gay,
`98 F.4th 843 (7th Cir. 2024) ....................................................... 20
`United States v. Goins,
`118 F.4th 794 (6th Cir. 2024) ..................................................... 20
`United States v. Grace,
`461 U.S. 171 (1983) .................................................................... 35
`United States v. Hunt,
`123 F.4th 697 (4th Cir. 2024) ............................................... 18, 19
`United States v. Jackson,
`110 F.4th 1120 (8th Cir. 2024) ............................................. 20, 21
`United States v. Miller,
`307 U.S. 174 (1939) ...................................................................... 7
`United States v. Moore,
`666 F.3d 313 (4th Cir. 2012) ........................................................ 9
`
`
`
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`
`vii
`United States v. Rahimi,
`602 U.S. 680 (2024) .................................. 2, 11, 26, 28–30, 32–33
`United States v. Salerno,
`481 U.S. 739 (1987) .................................................................... 32
`United States v. Schnur,
`132 F.4th 863 (5th Cir. 2025) ..................................................... 15
`United States v. Vega,
`332 F.3d 849 (5th Cir. 2003) ...................................................... 15
`United States v. Williams,
`113 F.4th 637 (6th Cir. 2024) ......................................... 19, 20, 31
`Vincent v. Bondi,
`127 F.4th 1263 (10th Cir. 2025) ........................................... 22, 23
`Williams v. Illinois,
`399 U.S. 235 (1970) .................................................................... 34
`Zherka v. Bondi,
`140 F.4th 68 (2d Cir. 2025) .................................................. 16, 17
`
`Constitutional Provisions
`Commerce Clause,
`U.S. Const. Art. I, § 8, cl.3 ......................................................... 12
`Second Amendment,
`U.S. Const. amend. II ......................................................... 5–8, 32
`
`Statutes
`18 U.S.C. § 922(g)(1) .............................................................................
` .............. i, 1–5, 9–10, 12–14, 16–22, 24–27, 29–30, 32–33, 35–36
`18 U.S.C. § 922(g)(8) ...................................................................... 30
`28 U.S.C. § 1254(1) .......................................................................... 5
`
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`viii
`Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664–65 ................... 28
`An Act to Strengthen the Federal Firearms Act,
`Pub. L. No. 87-342, 75 Stat. 757 (1961) ...................................... 8
`Federal Firearms Act,
`52 Stat. 1250 (1938) ..................................................................... 6
`Omnibus Crime Control and Safe Streets Act of 1968,
`Pub. L. No. 90-351, 82 Stat. 197 .................................................. 8
`Other Authorities
`Dep’t of Justice, Bureau of Justice Statistics,
`Mark A. Motivans,
`Federal Justice Statistics, 2022 (Jan. 2024) ............................. 36
`Dep’t of Justice, Bureau of Justice Statistics,
`Sean Rosenmerkel et al.,
`Felony Sentences in State Courts,
`2006—Statistical Tables (rev. Nov. 2010) ................................. 36
`Federal Firearms Act: Hearings Before the Subcomm. to
`Investigate Juvenile Delinq. of the Sen. Comm. on the
`Judiciary, 89th Cong. 41 (1965) .................................................. 7
`Poulos, John,
`The Metamorphosis of the Law of Arson,
`51 Mo. L. Rev. 295 (Spring 1986) .............................................. 14
`Preyer, Kathryn,
`Crime and Reform in Post-Revolutionary Virginia,
`1 LAW & HIST. REV. 53, 73 (1983) ............................................... 28
`S. Rep. No. 90-1097 (1968),
`reprinted in 1968 U.S.C.C.A.N. 2112, 2169 ................................ 7
`Stevenson, Dru,
`In Defense of Felon-in-Possession Laws,
`43 CARDOZO L. REV. 1573 (2022) ............................................... 35
`
`
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`
`
`ix
`U.S. Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms
`Offenses (June 2024) .................................................................. 35
`Winkler, Adam,
`Heller’s Catch-22,
`56 UCLA L. REV. 1551 (2009) ...................................................... 6
`
`
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`1
`
`
`
`RUDY MARIO FLORES, PETITIONER,
`
`V.
`
`UNITED STATES OF AMERICA, RESPONDENT.
`
`
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Fifth Circuit
`
`
`PETITION FOR WRIT OF CERTIORARI
`
`Petitioner Rudy Mario Flores, respectfully petitions for a writ
`of certiorari to review the judgment of the United States Court of
`Appeals for the Fifth Circuit.
`Introduction
`This Court’s decision in NYSRPA v . Bruen, 597 U.S. 1 (2022) ,
`brought about a sea change in Second Amendment jurisprudence.
`In Bruen’s wake, the courts of appeals considered renewed consti-
`tutional challenges to the federal felon -in-possession statute, 18
`U.S.C. § 922(g)(1). They reached dramatically divergent results. A
`panel of the Third Circuit at first held that felons were excluded
`from “the people” protected by the Second Amendment, but the en
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`2
`banc court applied Bruen’s text-and-history analysis and held that
`§ 922(g)(1) was unconstitutional as applied to an individual with a
`non-violent predicate conviction. A panel of the Ninth Circuit simi-
`larly held that the statute violated the Second Amendment as ap-
`plied to someone with non-violent offenses before vacating that de-
`cision en banc. The Fourth and Seventh Circuits assumed that as-
`applied challenges to § 922(g)(1) were available in at least some cir-
`cumstances. By contrast, the Eighth, Tenth, and Eleventh Circuits
`all upheld § 922(g)(1) with no need for felony-by-felony determina-
`tions, although those courts disagreed about whether a historical
`analysis was required.
`The Court’s decision in United States v. Rahimi, 602 U.S. 680
`(2024), did little to quell the confusion. The courts of appeal s con-
`tinue to be deeply divided after Rahimi. The Third, Fifth, and
`Sixth Circuits each acknowledge that § 922(g)(1) is vulnerable to
`as-applied challenges. The Eighth Circuit, however, has reaffirmed
`its conclusion that history supports applying § 922(g)(1) across the
`board with no need for felony-by -felony analysis. T he Tenth and
`Eleventh Circuits continue to uphold the statute in all applications
`based on dicta from this Court instead of the historical analysis
`that Bruen demands. The Fourth Circuit refuse s to consider as -
`applied challenges on several grounds, including that felons are
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`3
`not among “the people” protected by the Second Amendment. And
`the en banc Ninth Circuit, as well as the Second Circuit, recently
`held that there is a history of disarming certain classes of individ-
`uals that supports applying § 922(g)(1) to all felons.
`In short, the Fifth Circuit’s decision below continues to deepen
`an intractable conflict in the courts of appeal s over the scope of a
`fundamental right. And the Fifth Circuit’s decision is wrong. Sec-
`tion 922(g)(1) is a mid-20th century innovation drafted when Con-
`gress believed—incorrectly—that the Second Amendment does not
`protect an individual right to bear arms. So Congress made no ef-
`fort to pass a law that was “consistent with the Nation’s historical
`tradition of firearm regulation.” See Bruen, 597 U.S. at 24. Rather,
`it passed a sweeping ban that is irreconcilable with our history and
`tradition. Section 922(g)(1) is facially unconstitutional because its
`lifetime prohibition on gun possession imposes a historically un-
`precedented burden on the right to bear arms . No historical fire-
`arm law imposed permanent disarmament. And the justification
`behind § 922(g)(1)—disarming a broad group of potentially irre-
`sponsible individuals—also fails historical scrutiny. At most, our
`history shows a tradition of disarming violent individuals who
`threaten armed insurrection or pose a present physical threat to
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`4
`others. So, at the very least, § 922(g)(1) is unconstitutional as ap-
`plied to individuals like Flores who were previously convicted of
`non-violent crimes.
`This question is critically important. Section 922(g)(1) is one of
`the most commonly charged federal offenses . U ncertainty about
`whether the statute is constitutional affects thousands of criminal
`cases each year . Even more concerning, § 922(g)(1) categorically
`and permanently prohibits millions of Americans—the vast major-
`ity of whom have non-violent convictions—from exercising their
`right to keep and bear arms.
`This Court’s intervention is urgently needed to resolve the
`scope of a fundamental constitutional right. After Rahimi, the con-
`fusion among the courts of appeals has only deepened. This ques-
`tion will not go away, and this is an ideal vehicle to resolve it. The
`Court should grant certiorari.
`Opinion Below
`A copy of the unpublished opinion of the court of appeals,
`United States v. Flores, No. 24-50459 (5th Cir. June 30, 2025) (per
`curiam), is reproduced at Pet. App. 1a–2a.
`
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`5
`Jurisdiction
`The opinion and judgment of the United States Court of Ap-
`peals for the Fifth Circuit were entered on June 30, 2025. This pe-
`tition is filed within 90 days after entry of the judgment. See Sup.
`Ct. R. 13.1. The Court has jurisdiction to grant certiorari under 28
`U.S.C. § 1254(1).
`Constitutional and S tatutory Provisions Involved
`The Second Amendment provides: “A well regulated Militia, be-
`ing necessary to the security of a free State, the right of the people
`to keep and bear Arms, shall not be infringed.”
`Section 922(g)(1) of Title 18 of the United States Code provides:
`“It shall be unlawful for any person … who has been convicted in
`any court of, a crime punishable by imprisonment for a term ex-
`ceeding one year … to … possess in or affecting commerce, any
`firearm or ammunition.”
`Statement
`A. Legal background.
`1. “Founding-era legislatures did not strip felons of the right
`to bear arms simply because of their status as felons.” Kanter v.
`Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting).
`Indeed, “[b]ans on ex-felons possessing firearms were first adopted
`in the 1920s and 1930s, almost a century and a half after the
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`6
`Founding.” Adam Winkler, Heller’s Catch -22, 56 UCLA L. REV.
`1551, 1563 (2009). In 1938, Congress criminalized firearm posses-
`sion by individuals convicted of certain crimes for the first time.
`See Federal Firearms Act, ch. 850, § 2(f), 52 Stat. 1250, 1251
`(1938). But that statute was much narrower than the modern ver-
`sion. The Federal Firearms Act only applied to someone “convicted
`of a crime of violence,” id., which included “murder, manslaughter,
`rape, mayhem, kidnaping, burglary, housebreaking,” and certain
`kinds of aggravated assault, id. § 1(6). The Act prohibited an indi-
`vidual with such a conviction from “receiv[ing]” a firearm, and it
`considered possession to be “presumptive evidence” of receipt.1 Id.
`§ 2(f).
`2. It was not until the 1960s that the federal felon-in-posses-
`sion statute took on its modern form. At the time, Congress shared
`a widely held—but incorrect —understanding of the Second
`Amendment. In committee testimony, the Attorney General as-
`sured Congress that “[w]ith respect to the second amendment, the
`Supreme Court of the United States long ago made it clear that
`the amendment did not guarantee to any individuals the right to
`bear arms” and opined that “the right to bear arms protected by
`
`1 T his possession-based presumption was short -lived. A few
`years later, this Court invalidated the presumption on due process
`grounds. Tot v. United States, 319 U.S. 463, 467 (1943).
`
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`7
`the second amendment relates only to the maintenance of the mi-
`litia.” Federal Firearms Act: Hearings Before the Subcomm. to In-
`vestigate Juvenile Delinq. of the Sen. Comm. on the Judiciary, 89th
`Cong. 41 (1965). And Congress dismissed constitutional concerns
`about federal firearm regulations, explaining that the Second
`Amendment posed “no obstacle” because federal regulations did
`not “hamper the present-day militia.” S. Rep. No. 90-1097 (1968),
`reprinted in 1968 U.S.C.C.A.N. 2112, 2169. Congress relied on
`court decisions—including United States v. Miller , 307 U.S. 174
`(1939)—which held that the Second Amendment “was not adopted
`with the individual rights in mind.” Id.
`Unconstrained by the Second Amendment, “Congress sought to
`rule broadly,” employing an “expansive legislative approach” to
`pass a “sweeping prophylaxis … against misuse of firearms.” Scar-
`borough v. United States , 431 U.S. 563, 572 (1977) (first quote);
`Lewis v. United States, 445 U.S. 55, 61, 63 (1980) (second and third
`quotes). In particular, Congress was concerned with keeping fire-
`arms out of the hands of broad categories of “potentially irrespon-
`sible persons, including convicted felons.” Barrett v. United States,
`423 U.S. 212, 220 (1976). So it enacted two significant changes that
`brought about the modern felon-in-possession ban. First, Congress
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`8
`expanded the Federal Firearms Act to prohibit individuals con-
`victed of any crime “punishable by imprisonment for a term ex-
`ceeding one year”—not just violent crimes—from receiving a fire-
`arm. See An Act to Strengthen the Federal Firearms Act, Pub. L.
`No. 87-342, § 2, 75 Stat. 757, 757 (1961). Second, a few years later,
`Congress criminalized possession of a firearm—not just receipt—
`by anyone with a felony conviction. See Omnibus Crime Control
`and Safe Streets Act of 1968, Pub. L. No. 90 -351, § 1202(a)(1), 82
`Stat. 197, 236.
`3. In its seminal decision in District of Columbia v. Heller, this
`Court held for the first time that the Second Amendment codifies
`an individual right to keep and bear arms—a right that is not lim-
`ited to militia service. 554 U.S. 570, 579 –600 (2008). In reaching
`this conclusion, the Court conducted a “textual analysis” of the Sec-
`ond Amendment’s language and surveyed the Amendment’s “his-
`torical background.” Id. at 578, 592. The Court had “no doubt, on
`the basis of both text and history, that the Second Amendment con-
`ferred an individual right to keep and bear arms.” Id. at 595. Re-
`lying on the historical understanding of the Amendment, however,
`the Court recognized that “the right secured by the Second Amend-
`ment is not unlimited .” Id. at 626. The Court identified several
`“longstanding” and “presumptively lawful” firearm regulations,
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`9
`such as prohibitions on felons possessing firearms. Id. at 626–27
`& n.27. But the Court cautioned that it was not “undertak[ing] an
`exhaustive historical analysis … of the full scope of the Second
`Amendment.” Id. at 626. And it did not cite any historical examples
`of these “longstanding” laws, explaining that there would be “time
`enough to expound upon the historical justifications for the[se] ex-
`ceptions … if and when those exceptions come before us .” Id. at
`635. The Court then turned to the District of C olumbia 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 two-
`step 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,
`919 F.3d at 441– 42; United States v. Focia , 869 F.3d 1269, 1285
`(11th Cir. 2017) . And t his Court’s recognition that the Second
`Amendment protects an individual right to bear arms brought re-
`newed constitutional challenges to § 922(g)(1). But the courts of
`appeals almost uniformly rejected Second Amendment challenges
`to the statute, either applying means-ends scrutiny or relying on
`Heller’s “presumptively lawful” language . See, e.g., United States
`v. Moore, 666 F.3d 313, 316 –17 (4th Cir. 2012) (collecting cases).
`
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`10
`The lone exception was the Third Circuit, which held that
`§ 922(g)(1) was unconstitutional as applied to two individuals with
`underlying convictions—one for corrupting a minor and the other
`for carrying a handgun without a license—that “were not serious
`enough to strip them of their Second Amendment rights.”
`Binderup v. Attorney General, 836 F.3d 336, 351–57 (3d Cir. 2016)
`(en banc).
`4. Then came Bruen. In Bruen, this Court held that the two-
`step 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 jus-
`tify 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 out-
`side the Second Amendment’s unqualified command.” Id. (cleaned
`up).
`Bruen—and the Court’s later decision in Rahimi—explain that
`“the appropriate analysis involves considering whether the chal-
`lenged regulation is consistent with the principles that underpin
`
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`11
`our regulatory tradition.” Rahimi, 602 U.S. at 692. “A court must
`ascertain whether the new law is ‘relevantly similar’ to laws that
`our tradition is understood to permit, ‘apply[ing] faithfully the bal-
`ance struck by the founding generation to modern circumstances.’”
`Id. (quoting Bruen, 597 U.S. at 29). The law need not be a “histor-
`ical twin,” but analogical reasoning is also not a “regulatory blank
`check.” Bruen, 597 U.S. at 30. “How” and “why” the regulation s
`burden the right to bear arms are central to this inquiry . Bruen,
`597 U.S. at 29; Rahimi, 602 U.S. at 692. These considerations ask
`whether the modern and historical regulations impose a “compa-
`rable burden” (the how ) and “whether that burden is comparably
`justified” (the why). Bruen, 597 U.S. at 29. “Even when a law reg-
`ulates arms-bearing for a permissible reason, … it may not be com-
`patible with the right if it does so to an extent beyond what was
`done at the founding.” Rahimi, 602 U.S. at 692.
`B. Proceedings below.
`1. Flores is a convicted felon. He has two prior convictions for
`vehicular arson and one for felony theft.
`In this case, New Braunfels, Texas, police officers encountered
`Flores while investigating a vehicle burglary. While patting Flores
`down, the officers found a Jimenez Arms .380 caliber pistol in his
`back pocket. Two other firearms were found in the vehicle where
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`12
`officers encountered Flores. “An interstate nexus expert deter-
`mined that [the] Jimenez Arms firearm had traveled in interstate
`commerce.”
`For that, Flores was charged in a one- count indictment with
`“possess[ing] at least one firearm, to wit:” the Jimenez Arms .380
`pistol, “said firearm ha[ving] been shipped and transported in in-
`terstate and foreign commerce,” “knowing that he had been con-
`victed of a crime punishable by imprisonment for a term exceeding
`one year,” in violation of 18 U.S.C. § 922(g)(1).
`2. Flores moved to dismiss the indictment on two grounds.
`First, he argued that § 922(g)(1) is unconstitutional under the Sec-
`ond Amendment, both facially and as applied to those with crimi-
`nal histories like his, under the Court’s decision in Bruen. Second,
`he argued that the statute exceeds Congress’s power under the
`Commerce Clause.
`The district court denied Flores’s motion, joining “the consen-
`sus among federal courts across the nation” that Bruen had “left
`generally undisturbed the regulatory framework that keeps fire-
`arms out of the hands of dangerous felons” in rejecting Flores’s fa-
`cial challenge to § 922(g)(1). The court also rejected Flores’s as-ap-
`plied challenge based on pre-Bruen Fifth Circuit precedent uphold-
`ing § 922(g)(1) regardless of whether a defendant’s prior felony was
`
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`13
`violent in nature. Finally, the court rejected Flores’s Commerce
`Clause challenge as foreclosed by precedent, as Flores had
`acknowledged in his motion to dismiss.
`3. Flores pleaded guilty to the indictment. The factual basis
`listed only his prior arson convictions; it did not mention the theft.
`The district court sentenced him to 151 months’ imprisonment and
`three years’ supervised release.
`4. Flores appealed. He raised both facial and as-applied chal-
`lenges to the constitutionality of § 922(g)(1) under Bruen’s frame-
`work, as clarified in Rahimi and the Fifth Circuit’s decision in
`United States v. Diaz , 116 F.4th 458 (5th Cir. 2024), cert. denied ,
`No. 24-6625 (U.S. Jun. 23, 2025). Diaz, as the seminal Fifth Circuit
`case applying Bruen and Rahimi’s analyses to § 922(g)(1), estab-
`lished three points: (1) “felons” are part of “the people,” and thus
`§ 922(g)(1) is presumptively unconstitutional, id . at 466 –67; (2)
`§ 922(g)(1) is facially constitutional, id . at 471– 72; and (3)
`§ 922(g)(1) was constitutional as applied to Diaz because —when
`considering only his prior convictions —his prior felony conviction
`for vehicle theft was relevantly similar to the Founding-era crime
`of horse theft, which was punishable by death or estate forfeiture,
`id. at 467, 469–70.
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`Flores argued that § 922(g)(1) facially violates the Second
`Amendment to preserve the issue for further review but acknowl-
`edged that the Fifth Circuit’s precedent foreclosed his argument.
`As for his as -applied challenge to § 922(g)(1), Flores argued that
`the Government could not demonstrate a historical tradition of
`permanently disarming a person convicted of vehicular arson be-
`cause that offense is not relevantly similar to crimes during the
`Founding era that were punishable by death or estate forfeiture.
`There is no evidence that colonial- era Americans were punished
`“permanently and severely” for possessing firearms after any
`crimes punishable by more than one year of imprisonment. Diaz,
`116 F.4th at 468 (rejecting a prior § 922(g)(1) offense as a rele-
`vantly similar predicate); Kanter, 919 F.3d at 454 (Barrett, J., dis-
`senting) (noting scholars have not been able to identify any found-
`ing-era laws disarming all felons). Also, arson was defined far more
`narrowly at the time of the founding. The historical crime was lim-
`ited to arson of dwellings; it did not extend to the burning of vehi-
`cles, even those within the curtilage of the dwelling. See John Pou-
`los, The Metamorphosis of the Law of Arson , 51 Mo. L. Rev. 295,
`299–300, 309 (Spring 1986).
`The Government moved for summary affirmance. It noted that
`Fifth Circuit precedent foreclosed Flores’s facial and Commerce
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`Clause challenges to § 922(g)(1). The Government did not address
`Flores’s argument regarding vehicular arson. Instead, it argued
`that Diaz foreclosed Flores’s challenge because, like Diaz, Flores
`had a prior conviction for felony theft.
`Flores opposed the Government’s motion because the factual
`basis for his guilty plea rested only on his convictions for vehicular
`arson; the factual basis did not mention Flores’s prior conviction
`for felony theft. He further argued that Diaz’s reasoning did not
`foreclose his argument regarding vehicular arson, for the reasons
`articulated in his brief.
`The Fifth Circuit affirmed. Pet. App. 1a–2a. Although it denied
`the Government’s motion for summary affirmance, it held that “the
`Government is correct that Flores cannot meet his burden of show-
`ing it is plainly erroneous to apply § 922(g)(1) to him based on his
`prior felony theft conviction.” Pet App. 2a (citing United States v.
`Schnur, 132 F.4th 863, 870–71 (5th Cir. 2025),
`2 and United States
`v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003)). The court also re-
`jected Flores’s Commerce Clause and facial Second Amendment
`challenges as foreclosed by Diaz. Pet. App. 1a–2a.
`
`2 Schnur held that Diaz’s holding regarding car theft applied to
`a defendant with prior convictions for burglary and robbery.
`Schnur, 132 F.4th at 870.
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`Reasons for Granting the Petition
`I. The courts of appeals are deeply divided over the scope
`of a fundamental constitutional right.
`The courts of appeals are deeply divided over how to analyze
`Second Amendment challenges to § 922(g)(1). Some circuits see no
`need to conduct the text- and-history analysis required by Bruen,
`relying instead on this Court’s dicta that felon-in-possession pro-
`hibitions are presumptively lawful. Others apply Bruen’s text-and-
`history framework but reach dramatically different results. Exam-
`ining the text, the circuits disagree about whether felons are part
`of “the people” protected by the Second Amendment. And in ana-
`lyzing the historical evidence, the circuits are split over which tra-
`ditions justify § 922(g)(1), whether the statute is vulnerable to as-
`applied challenges, and (if so) what standard to apply.
`1. The Second Circuit recently rejected a facial challenge to
`§ 922(g)(1), holding that its pre -Bruen precedent, which upheld
`§ 922(g)(1) based on the assurances in Heller and McDonald that
`“‘longstanding prohibitions on the possession of firearms by felons”
`are presumptively constitutional,’ … survives Bruen.” Zherka v.
`Bondi, 140 F.4th 68, 74 (2d Cir. 2025) (cleaned up). Turning to the
`as-applied challenge, the Second Circuit found that the defendant,
`despite being a felon, remained part of “the people.” Id . at 76–77.
`But under Bruen ’s second step, the court rejected a case-by- case
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`approach to determine if certain nonviolent felonies exempted a
`person from prosecution under § 922(g)(1), id. at 95–96, and found
`that, “[l]ike § 922(g)(1), laws from seventeenth century England,
`the American Colonies, and the early United States, establish that
`it has long been permissible to regulate firearms possession
`through legislative proscription on a class- wide basis, witho ut a
`particularized finding that the individuals disarmed pose a threat
`to society.” Id. at 78–79.
`2. The Third Circuit, sitting en banc, struck down § 922(g)(1)
`as applied to an individual convicted of food stamp fraud who did
`not “pose[ ] a physical danger to others .” Range v. Attorney Gen-
`eral, 124 F.4th 218, 232 (3d Cir. 2024). The court held that the
`plaintiff was part of “the people” protected by the Second Amend-
`ment despite his prior conviction. Id. at 226–28. And the court held
`that the government failed to show “a longstanding history and
`tradition of depriving people like [the plaintiff] of their firearms.”
`Id. at 232. In doing so, the court rejected the government’s reliance
`on status-based restrictions, emphasizing that founding-era laws
`disarmed distrusted groups—li