After Rahimi, McCane Still Rules: Tenth Circuit Reaffirms § 922(g)(1) Against Nonviolent-Felon As-Applied Challenges (United States v. Forbis & Smith)

After Rahimi, McCane Still Rules: Tenth Circuit Reaffirms § 922(g)(1) Against Nonviolent-Felon As-Applied Challenges (United States v. Forbis & Smith)

Court: U.S. Court of Appeals for the Tenth Circuit

Date: September 30, 2025

Panel: Judges Tymkovich (author), Carson, and Federico

Disposition: Reversed and remanded; indictments reinstated

Precedential Status: Order and judgment—nonprecedential except under law-of-the-case, res judicata, and collateral estoppel; citable for persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1

Introduction

This consolidated appeal—United States v. Forbis and United States v. Smith—tests whether the Supreme Court’s decisions in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi abrogated the Tenth Circuit’s longstanding holding in United States v. McCane (2009) that 18 U.S.C. § 922(g)(1), the felon-in-possession statute, does not violate the Second Amendment. Both defendants, nonviolent felons, persuaded the district court to dismiss their indictments on the view that Rahimi displaced McCane and rendered § 922(g)(1) unconstitutional as applied to them. The government appealed.

While the appeals were pending, the Tenth Circuit decided Vincent v. Bondi (Vincent III), holding that Rahimi did not “indisputably and pellucidly abrogate” McCane and that McCane remains binding circuit precedent—foreclosing as-applied Second Amendment challenges to § 922(g)(1) by nonviolent felons. Applying Vincent III, the panel reversed the dismissals and remanded for further proceedings.

The ruling clarifies two important doctrines: (1) the Tenth Circuit’s prior-panel-precedent rule and its high abrogation threshold when litigants claim that intervening Supreme Court decisions overruled circuit precedent; and (2) preservation principles when a district court sua sponte raises and decides a dispositive legal question.

Summary of the Opinion

  • Jurisdiction and Review: Exercising jurisdiction under 28 U.S.C. § 1291, the court reviewed the constitutional dismissals de novo.
  • Preservation: The government’s reliance on McCane was preserved because the district court itself raised and decided the McCane issue sua sponte at Forbis’s sentencing, triggering an exception to the ordinary preservation rule.
  • Merits: In light of Vincent III, McCane remains binding. Neither Bruen nor Rahimi abrogates it. Because McCane did not distinguish between violent and nonviolent felons, § 922(g)(1) is constitutional as applied to both Forbis and Smith.
  • Holding: The panel reversed the district courts’ dismissals of the indictments and remanded. Both defendants conceded that Vincent III required reversal.

Background and Procedural Posture

Forbis

A grand jury indicted William James Forbis under § 922(g)(1) based on prior nonviolent drug felonies. Relying on Bruen, he moved to dismiss, and the district court granted the motion after concluding that Bruen abrogated McCane. Following the Tenth Circuit’s decision in Vincent v. Garland (Vincent I), which held that Bruen did not abrogate McCane, the government secured reconsideration and reinstatement of the indictment. Forbis pled guilty, and the court set sentencing. Before sentencing, however, the Supreme Court decided Rahimi and then granted, vacated, and remanded Vincent I (Vincent II). Believing McCane no longer controlled post-Rahimi, the district court invited Forbis to move to dismiss; it did so and granted the motion, dismissing the indictment as unconstitutional as applied to Forbis.

Smith

A grand jury indicted Daniel Duane Smith, Jr., under § 922(g)(1) based on nonviolent felonies including fraud and a prior felon-in-possession conviction. After Vincent II, Smith moved to dismiss, arguing that Bruen and Rahimi abrogated McCane and that § 922(g)(1) was unconstitutional as applied. The district court agreed and dismissed the indictment.

Detailed Analysis

1) Precedents and Authorities Cited—and Their Role

  • United States v. McCane, 573 F.3d 1037 (10th Cir. 2009): Found § 922(g)(1) constitutional under the Second Amendment. Crucially, McCane does not carve out exceptions for nonviolent felons. It is the controlling Tenth Circuit precedent unless and until overruled en banc or abrogated by a Supreme Court decision that “indisputably and pellucidly” conflicts with it.
  • District of Columbia v. Heller, 554 U.S. 570 (2008): Recognized an individual right to keep and bear arms while noting that certain longstanding restrictions—like felon-in-possession laws—are “presumptively lawful.” Heller set the baseline on which both Bruen and Rahimi elaborated, and on which the Tenth Circuit relies to maintain McCane’s vitality.
  • New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): Adopted a historical-tradition test for gun regulations. In Vincent I, the Tenth Circuit held that Bruen did not abrogate McCane, especially given Bruen’s reaffirmation of Heller’s “presumptively lawful” felon prohibitions.
  • United States v. Rahimi, 602 U.S. 680 (2024): Applied Bruen’s historical test to § 922(g)(8) (restraining orders), upholding disarmament for those found to pose a credible threat. The Tenth Circuit in Vincent III emphasized that Rahimi again recognized the “presumptively lawful” nature of felon-in-possession bans and thus did not abrogate McCane.
  • Vincent Trilogy:
    • Vincent v. Garland (Vincent I), 80 F.4th 1197 (10th Cir. 2023): Held Bruen did not abrogate McCane. Later GVR’d in Vincent II.
    • Vincent v. Garland (Vincent II), 144 S. Ct. 2708 (2024): Supreme Court granted cert, vacated, and remanded in light of Rahimi.
    • Vincent v. Bondi (Vincent III), 127 F.4th 1263 (10th Cir. 2025), cert. petition filed (No. 24-1155): On remand, reaffirmed that Rahimi did not abrogate McCane. Hence, McCane controls and forecloses as-applied challenges by nonviolent felons to § 922(g)(1).
  • Preservation Authorities:
    • Singleton v. Wulff, 428 U.S. 106 (1976) (general rule against considering issues not passed on below).
    • Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144 (10th Cir. 2012) (preservation requires alerting the district court and seeking a ruling).
    • United States v. Todd, 446 F.3d 1062 (10th Cir. 2006), and United States v. Hernandez-Rodriguez, 352 F.3d 1325 (10th Cir. 2003): Exceptions when the district court raises and decides an issue sua sponte; appellate review proceeds as if preserved.
    • United States v. Guinn, 89 F.4th 838 (10th Cir. 2023): Party may challenge a ruling on grounds addressed by the district court even if not raised below.
  • Standards of Review:
    • United States v. Chavarria, 140 F.4th 1257 (10th Cir. 2025), and United States v. Friday, 525 F.3d 938 (10th Cir. 2008): Dismissals of indictments are ordinarily reviewed for abuse of discretion.
    • United States v. Doe, 58 F.4th 1148 (10th Cir. 2023): Constitutional dismissals are reviewed de novo—which governed here.
  • Survey of Sister-Circuit Positions (as described by the panel):
    • Bound by pre-Bruen precedent upholding § 922(g)(1), even as applied to nonviolent felons: Fourth (Hunt), Eighth (Jackson), Ninth en banc (Duarte), Eleventh (Dubois).
    • Not bound but upholding § 922(g)(1) as applied in at least some circumstances: Fifth (Diaz), Sixth (Williams).
    • Holding § 922(g)(1) unconstitutional as applied on the facts before the court: Third en banc (Range).

2) Legal Reasoning

a) The Prior-Panel-Precedent Rule and Abrogation Standard

The Tenth Circuit’s prior-panel-precedent doctrine binds later panels to earlier circuit decisions unless a higher authority “indisputably and pellucidly abrogate[s]” the prior ruling. In Vincent III, the court reaffirmed that neither Bruen nor Rahimi meets that stringent threshold with respect to McCane. Both Supreme Court decisions embraced Heller’s acknowledgement of felon disarmament as “presumptively lawful,” undermining any claim that they implicitly overruled McCane.

b) Rahimi’s Limited Reach vis-à-vis Felon-In-Possession

Rahimi applied Bruen’s historical tradition test to § 922(g)(8), a provision focused on individuals judicially found to pose a credible threat to another’s physical safety. In doing so, the Supreme Court again recognized the constitutionality of disarming categories of dangerous persons and, importantly for the Tenth Circuit, did not disturb the “presumptively lawful” characterization of felon-in-possession bans. Vincent III read Rahimi as consistent with—rather than contrary to—McCane.

c) No Violent/Nonviolent Distinction under McCane

McCane does not distinguish between violent and nonviolent felons. Consequently, as Vincent III emphasized, the Second Amendment “doesn’t prevent application of § 922(g)(1) to nonviolent offenders.” That reaffirms a bright-line rule within the Tenth Circuit: a defendant’s status as a nonviolent felon does not open the door to an as-applied Second Amendment invalidation of § 922(g)(1).

d) Preservation: District Court’s Sua Sponte Ruling Saves the Issue

Although appellate courts typically decline to consider issues not raised below, an exception applies when the district court raises and expressly resolves a legal question on its own. Here, the district court, at Forbis’s sentencing, initiated discussion of McCane’s viability post-Rahimi, invited a motion to dismiss, and then ruled on the constitutional question. Under Todd and Hernandez-Rodriguez, that sua sponte adjudication permitted the government to press the McCane argument on appeal. The panel therefore reviewed de novo, as if preserved.

3) The Court’s Application to Forbis and Smith

Because Vincent III controls and McCane remains binding law, § 922(g)(1) is constitutional as applied to both defendants. The court reversed the dismissals and remanded. Notably, both defendants conceded that Vincent III required reversal.

Impact and Practical Implications

Within the Tenth Circuit

  • As-applied challenges by nonviolent felons are foreclosed: District courts must deny dismissal motions that argue § 922(g)(1) violates the Second Amendment as applied to nonviolent felons. McCane, as reaffirmed by Vincent III, controls.
  • Uniformity despite a developing national landscape: Though other circuits have diverged—some entertaining successful as-applied challenges (Range)—the Tenth Circuit remains on the side that treats felon-in-possession bans as constitutional, without a violent/nonviolent distinction.
  • Plea and litigation strategy: Defendants indicted under § 922(g)(1) in the Tenth Circuit should not expect relief via Bruen/Rahimi-based as-applied challenges premised on nonviolence. Litigation resources may be better focused on other defenses or mitigating factors at sentencing.
  • District court process management: When district courts sua sponte raise dispositive legal issues, a party’s failure to object may not forfeit appellate review. Counsel should nonetheless create a clear record, but this opinion signals that appellate courts will reach the merits when the trial court itself frames and resolves the question.
  • Binding effect: Although this disposition is an order and judgment with limited precedential effect, it faithfully applies Vincent III—a published, binding decision—making the practical rule clear throughout the circuit.

Beyond the Tenth Circuit

  • Continuing circuit divergence: The opinion catalogs competing approaches across circuits, highlighting an entrenched split on the scope of felon-in-possession prohibitions after Bruen and Rahimi.
  • Potential Supreme Court review: The panel notes that a petition for certiorari was filed in Vincent III (No. 24-1155). While pending review may alter the landscape nationally, the Tenth Circuit will adhere to McCane unless and until the Supreme Court explicitly says otherwise or the court sits en banc to reconsider.

Complex Concepts Simplified

  • As-applied challenge: Rather than arguing a law is invalid in all its applications (facial challenge), an as-applied challenge claims the law is unconstitutional as applied to a particular person’s circumstances. Here, both defendants argued § 922(g)(1) violated their Second Amendment rights because their prior felonies were nonviolent.
  • Prior-panel-precedent rule: A circuit court is bound by its earlier published decisions. A later panel cannot disregard them unless an intervening Supreme Court ruling clearly and unavoidably overrules that precedent or the circuit sits en banc to change course.
  • “Indisputably and pellucidly abrogate”: A high bar requiring an intervening Supreme Court decision to unmistakably conflict with a circuit precedent before a panel can treat that precedent as overruled.
  • GVR (Grant, Vacate, Remand): The Supreme Court can grant review, vacate a lower court’s judgment, and remand for reconsideration in light of a new decision. That occurred to Vincent I after Rahimi (Vincent II), prompting the Tenth Circuit’s clarifying decision in Vincent III.
  • Sua sponte: When a court raises an issue on its own initiative. If the court then resolves that issue, an appellate court may treat it as preserved for appeal by the parties.
  • Standard of review—de novo vs. abuse of discretion: De novo review means the appellate court independently reviews the legal question without deference to the district court. Abuse of discretion is more deferential. Constitutional rulings dismissing indictments receive de novo review.

Key Takeaways

  • Holding: In the Tenth Circuit, § 922(g)(1) remains constitutional as applied to nonviolent felons; McCane controls and was not abrogated by Bruen or Rahimi.
  • Process: The government’s reliance on McCane was preserved because the district court itself raised and decided the issue sua sponte.
  • Practice point: District courts within the Tenth Circuit should deny motions to dismiss § 922(g)(1) indictments premised on Bruen/Rahimi-based as-applied challenges by nonviolent felons unless and until McCane is expressly displaced by higher authority.
  • Future watch: The pending certiorari petition in Vincent III bears monitoring, but for now, McCane “lives on,” and Vincent III cements that reality.

Conclusion

United States v. Forbis (and its companion appeal for Smith) underscores the Tenth Circuit’s adherence to its prior-panel-precedent rule in the rapidly evolving Second Amendment arena. By applying Vincent III, the panel decisively holds that Rahimi did not unsettle McCane, and that § 922(g)(1) remains constitutional even as applied to nonviolent felons. The opinion also clarifies that when a district court sua sponte raises and decides a dispositive legal issue, appellate review of that issue is preserved. In practical terms, this order reinstates the status quo ante in the Tenth Circuit: nonviolent-felon as-applied challenges to § 922(g)(1) are foreclosed unless and until the Supreme Court or the Tenth Circuit en banc says otherwise.

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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