“Dangerousness as a Historical Constant” – The Second Circuit Upholds 18 U.S.C. § 922(g)(9) in United States v. Simmons

1. Introduction

On 11 August 2025 the United States Court of Appeals for the Second Circuit delivered its opinion in United States v. Simmons, Nos. 21-3064 & 22-118, a consolidated appeal concerning the firearm-possession ban for persons convicted of a misdemeanor crime of domestic violence (MCDV) found in 18 U.S.C. § 922(g)(9). Valdez Simmons, having previously assaulted the mother of his child, pleaded guilty to possessing a firearm in New York City. He later argued that § 922(g)(9) violates the Second Amendment under the Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen. The Government cross-appealed a Guidelines issue relating to a prior New York drug conviction.

The panel (Judges Nardini, Pérez, and Kahn) held:

Section 922(g)(9) is constitutional under the post-Bruen framework, fitting within the Nation’s historical tradition of disarming individuals deemed dangerous.
Simmons’s challenges to the length of his completed prison sentence are moot because he is now on supervised release and the record reveals no likelihood that the district court would shorten that release term.
The Government’s Guidelines cross-appeal is foreclosed by the Second Circuit’s own precedent in United States v. Minter, 80 F.4th 406 (2d Cir. 2023).

2. Summary of the Judgment

Applying Bruen’s two-step test and the Supreme Court’s 2024 decision in United States v. Rahimi, the court:

Step 1 – Plain Text: The right “to keep and bear Arms” presumptively covers Simmons’s conduct (carrying a handgun outside the home). Domestic-violence misdemeanants are part of “the people” under the Second Amendment.
Step 2 – Historical Analogue: A robust tradition of surety laws, “going armed” statutes, and status-based prohibitions from the 17^th to 19^th centuries demonstrates that legislatures may categorically disarm persons considered dangerous. MCDVs squarely fit within this historical category.

Because § 922(g)(9) survives constitutional scrutiny, Simmons’s conviction stands. His sentencing complaints are moot, and the Government’s cross-appeal fails under Minter. The conviction and sentence were therefore affirmed (appeal dismissed in part as moot).

3. In-Depth Analysis

3.1 Precedents Cited and Their Influence

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) – Established the modern, history-focused test for Second Amendment cases. Simmons rigorously applies its two-step methodology.
United States v. Rahimi, 602 U.S. 680 (2024) – Upheld § 922(g)(8) (firearm ban for persons subject to domestic-violence restraining orders). The Second Circuit leverages Rahimi’s reasoning and historical survey as strong support that Congress may disarm domestic abusers.
Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025) – The Second Circuit’s first major post-Bruen opinion upholding § 922(g)(1) (felon-in-possession). Simmons borrows extensively from Zherka’s analysis of status-based disarmament and its acceptance of morally troubling historical laws as relevant “analogues.”
United States v. Castleman, 572 U.S. 157 (2014) – Provided background on Congress’s aims in enacting § 922(g)(9), highlighting the lethal intersection of firearms and domestic violence.
United States v. Minter, 80 F.4th 406 (2d Cir. 2023) – Declared New York’s cocaine definition broader than the federal one, foreclosing the Government’s Guidelines argument here.
United States v. Jackson, 138 F.4th 1244 (10th Cir. 2025); United States v. Nutter, 137 F.4th 224 (4th Cir. 2025); United States v. Gailes, 118 F.4th 822 (6th Cir. 2024); United States v. Bernard, 136 F.4th 762 (8th Cir. 2025) – Sister-circuit decisions agreeing that § 922(g)(9) passes the Bruen test; the Second Circuit joins this growing uniformity.

3.2 Legal Reasoning of the Court

Plain-Error Threshold: Simmons did not raise the Second Amendment objection below, so plain-error review applied. The panel nevertheless undertook a full merits analysis and found no error at all, obviating the remainder of the plain-error inquiry.
Step One – Coverage: Refusing to carve out “domestic-violence misdemeanants” from “the people,” the court consulted Heller, Bruen, and Zherka, emphasizing that the Second Amendment’s text protects all members of the political community.
Step Two – History & Tradition:
- Historical sources (surety laws, “going armed” statutes, class-wide bans on perceived dangerous groups) demonstrate a tradition of disarming persons threatening public or private safety.
- Rahimi underscored that individuals who pose a “clear threat of physical violence” may be disarmed; domestic-violence misdemeanants squarely meet this description.
- The statute’s lack of a particularized judicial finding or a strict time limit did not undermine constitutionality because early American legislatures imposed broad, sometimes permanent, status-based prohibitions. Moreover, § 922(g)(9) contains a restoration mechanism (expungement, pardon, or rights restoration).
Mootness: Once Simmons served his custodial term, any dispute about its length ceased to affect an extant liberty interest. No realistic prospect existed that the district court would curtail supervised release if the case were remanded.
Guidelines Question: The court treated Minter as controlling: because New York’s definition of cocaine is broader than federal law, a conviction under N.Y. Penal Law § 220.16(1) is not a “controlled substance offense.” The Government’s cross-appeal was therefore abandoned and formally denied.

3.3 Potential Impact of the Judgment

Nationwide Consensus: With the Second Circuit now aligned with the Fourth, Sixth, Eighth, and Tenth Circuits, challenges to § 922(g)(9) are increasingly unlikely to succeed. A circuit split is improbable, reducing the likelihood of further Supreme Court review.
Dangerousness Lens Expanded: Simmons reinforces that the touchstone for firearms dispossession is dangerousness, not the felony/misdemeanor label. Legislatures may feel emboldened to craft additional status-based firearm restrictions (e.g., stalking misdemeanors, violent-threat misdemeanors) so long as they can tether them to historical analogues.
Sentencing Appeals and Mootness: The court’s strict application of mootness for already-served prison terms signals to defense counsel the importance of litigating custodial-length objections promptly and seeking relief on supervised release if they hope to keep the controversy alive.
Guidelines Consistency: By reiterating Minter, the Second Circuit cements the “categorical” approach to controlled-substance predicates, affecting many firearms and career-offender calculations in New York cases.

4. Complex Concepts Simplified

Plain-Error Review: An appellate standard applied when an issue was not raised in the trial court. The appellant must show a clear or obvious error that affected substantial rights and seriously impugned the fairness of proceedings.
The Bruen Test:
1. Does the Second Amendment’s text cover the conduct?
2. If yes, does the government show the regulation is consistent with historical firearm regulations?
Surety Laws: Early laws requiring potentially dangerous persons to post a financial bond (a “surety”) to keep the peace; failure could result in forfeiture or weapons impoundment.
Going Armed Statutes: Colonial and early-Republic laws penalizing the carrying of dangerous weapons in a manner that terrorized the public.
Categorical Match (Guidelines): A prior state conviction counts as a federal predicate only if every method of committing the state offense fits within the federal definition. If the state statute is broader, it does not categorically match.
Mootness: A constitutional limitation requiring a “live” dispute. If the court cannot provide any effectual relief, the issue is moot and must be dismissed.

5. Conclusion

United States v. Simmons crystallizes an emerging post-Bruen principle: “The historical power to disarm dangerous individuals supports modern, status-based firearm prohibitions.” By affirming § 922(g)(9) the Second Circuit solidifies the doctrinal link between 18^th- and 19^th-century practices and contemporary efforts to address intimate-partner violence. The decision also clarifies the limited survivability of sentencing appeals once a custodial term ends and underscores the continuing force of Minter in Guidelines jurisprudence. Practitioners should note the court’s readiness to look past the felony-misdemeanor divide and to evaluate new gun-control measures through the lens of historical notions of dangerousness.