Dangerousness-Based Disarmament Under § 922(g)(1) After Rahimi: The Fifth Circuit’s As‑Applied Approach in United States v. Davis

Introduction

In United States v. Davis, No. 24-20258 (5th Cir. Mar. 31, 2025) (per curiam) (unpublished), the Fifth Circuit affirmed a conviction under 18 U.S.C. § 922(g)(1) for a felon in possession of a firearm, rejecting an as‑applied Second Amendment challenge. The panel’s analysis translates the Supreme Court’s post‑Bruen framework, particularly as clarified in United States v. Rahimi (2024), into the § 922(g)(1) context: a defendant’s individualized history of misusing firearms and posing a clear threat to others provides the historical justification necessary to sustain disarmament.

The case arose from an incident in which Brant Davis, admittedly intoxicated and handling a gun in a moving vehicle, discharged the weapon and later was found with a pistol in the car. He stipulated to prior felony status (including a forgery conviction) and possession, was found guilty at a bench trial, and appealed. While Davis raised facial challenges under the Second Amendment and the Commerce Clause, Fifth Circuit precedent foreclosed those arguments. The live issue on appeal was whether § 922(g)(1), as applied to him, violates the Second Amendment.

The court held that it does not. Looking beyond the nominal predicate felony (forgery), the panel emphasized Davis’s broader record of firearm-related misconduct and other serious offenses, concluding that disarming him fits within a longstanding historical tradition of disarming individuals who misuse weapons and pose threats to public safety.

Summary of the Opinion

Applying Bruen and Rahimi, the Fifth Circuit affirmed Davis’s conviction and rejected his as‑applied Second Amendment challenge to § 922(g)(1). The court reasoned that:

The government must show that a modern firearm regulation is consistent with the Nation’s historical tradition of firearm regulation when it burdens conduct within the Second Amendment’s plain text.
Rahimi directs courts to ask why and how the law burdens the right and to identify “relevantly similar” historical analogues, particularly focusing on disarmament of individuals who misuse arms to menace others.
Even if a nonviolent predicate felony such as forgery might not, standing alone, justify permanent disarmament under historical tradition, Davis’s broader record—including juvenile robbery, aggravated unlawful use of a weapon in a vehicle, and unlawful possession of a weapon by a felon—shows repeated firearm misuse and a clear threat to others.
The district court’s sentencing assessment that Davis posed a significant danger reinforced the conclusion that § 922(g)(1) is constitutional as applied to him.

The panel therefore affirmed the judgment without resolving the unresolved historical “timeframe” debate (1791 vs. 1868) because Rahimi’s principles sufficed.

Analysis

Precedents Cited and Their Role

New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022): Bruen replaced interest balancing with a history-and-tradition test. When the Second Amendment’s plain text covers conduct, the government must demonstrate consistency with historical tradition. Davis invokes Bruen; the panel applies it by seeking historical analogues for disarming people like Davis.
United States v. Rahimi, 602 U.S. 680 (2024): The Supreme Court emphasized that the constitutionality inquiry turns on why and how a regulation burdens the right, and recognized a historical tradition of barring those who misuse weapons to menace others. Rahimi confirms that disarming persons posing a clear threat of physical violence is historically grounded. The panel uses Rahimi as the decisive framework, finding Davis’s record fits the category of “threatening individuals” who may be disarmed.
United States v. Diaz, 116 F.4th 458 (5th Cir. 2024): Diaz forecloses facial Second Amendment challenges to § 922(g)(1) in the Fifth Circuit and explains that the statute’s purpose is to keep guns from those who cannot be trusted without endangering others. At the same time, Diaz cautions that “felony” labels alone are not historically dispositive; courts must examine history and tradition. Davis builds on Diaz by applying an individualized, record-based approach.
Range v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024) (en banc): Range held that disarmament was not justified for a defendant whose sole offense was a nonviolent, non-dangerous false statement on a benefits application, especially in light of evolving post‑founding treatment of forgery. The Davis panel distinguishes Range because Davis’s record, unlike Range’s, shows repeated firearm misuse and risk to others. Range is thus informative on nonviolent offenses but does not control when the defendant’s history evidences dangerousness.
United States v. Bullock, No. 23‑60408, 2024 WL 4879467 (5th Cir. Nov. 25, 2024) (unpublished), and United States v. Collette, No. 22‑51062, 2024 WL 4457462 (5th Cir. Oct. 10, 2024) (unpublished): These decisions support considering a defendant’s broader criminal record in the as‑applied analysis and recognize that, because the Second Amendment inquiry is legal and history-driven, the government may provide additional legal support on appeal. The panel cites these cases to reject Davis’s forfeiture argument and to justify looking beyond the single predicate felony.
United States v. Perryman, 965 F.3d 424 (5th Cir. 2020): Forecloses facial Commerce Clause challenges to § 922(g)(1) in the Fifth Circuit. Although raised by Davis, the panel does not revisit the issue.
United States v. Howard, 766 F.3d 414 (5th Cir. 2014): Provides de novo review for preserved constitutional challenges, framing the appellate standard here.
United States v. Torres‑Jaime, 821 F.3d 577, 582 (5th Cir. 2016): Confirms that unpublished decisions may be persuasive, contextualizing the panel’s reliance on Bullock and Collette, and noting that Davis itself is unpublished under Fifth Circuit Rule 47.5.

Legal Reasoning

The panel follows Bruen and Rahimi’s two-step orientation in a streamlined way. It accepts that Davis’s possession is conduct within the Second Amendment’s plain text, then asks whether § 922(g)(1)’s burden on his right is consistent with historical tradition. Rahimi supplies the key principle: from the earliest days of the common law, governments have disarmed individuals who misuse weapons to harm or menace others. The panel therefore centers the “why and how” of § 922(g)(1)’s application to Davis—why the law burdens Davis (to protect the public from an individual with a proven pattern of misusing guns) and how it does so (by disarming him).

Critically, the court declines to resolve whether the predicate offense of forgery, standing alone, maps onto a founding-era analogue that would justify permanent disarmament. That question—sharply debated in Range and elsewhere—remains open in the Fifth Circuit. Instead, the court places dispositive weight on Davis’s broader record, which includes:

Juvenile robbery (a serious offense punishable by more than one year),
Aggravated unlawful use of a weapon/vehicle (with facts closely mirroring this case—passing a loaded gun around in a car), and
Unlawful possession of a weapon by a felon under state law.

The panel expressly sets aside arrests, pending charges, misdemeanors, and offenses lacking sufficient information (battery, aggravated assault, family violence) and treats forgery as non-dispositive in light of Range’s doubts about nonviolent, nonmenacing offenses. The focus is the pattern of firearm misuse demonstrating a present danger. The facts of the instant offense—handling a loaded gun while drunk in a moving vehicle, an accidental discharge that struck an FBI vehicle, and later possession—underscore the ongoing risk.

The sentencing court’s on-the-record findings amplify the constitutional analysis: the district judge characterized Davis’s conduct as part of an ongoing pattern, warned that innocents (including his family) could be killed, and concluded an upward variance was necessary to protect the community and deter further misconduct. The appellate panel treats those findings as consistent with Rahimi’s “clear threat” touchstone.

Finally, on procedure, the panel rejects Davis’s forfeiture contention that the government could not rely on his broader record on appeal. Citing Bullock, it reasons that the Second Amendment inquiry is a legal, history-driven question, permitting the government to provide additional legal support on appeal. That authorization matters practically, because it signals that the as‑applied analysis may rest on the whole record of dangerousness, not just the nominal predicate felony that triggers § 922(g)(1).

Impact and Implications

Although unpublished, Davis provides a clear roadmap for post‑Rahimi, as‑applied challenges to § 922(g)(1) in the Fifth Circuit:

Defendant-specific focus: Courts will assess the individual’s entire relevant criminal history—especially prior firearm misconduct—to determine whether modern disarmament aligns with the historical tradition of disarming dangerous individuals.
Predicate felony not dispositive: The label “felony” and the nature of the trigger offense (e.g., forgery) may be less important than the defendant’s demonstrated dangerousness. This approach permits upholding § 922(g)(1) as applied to defendants with nonviolent predicates if their broader record shows they misuse weapons or pose a clear threat.
Rahimi’s “why and how” controls: The opinion operationalizes Rahimi’s directive that courts look to the reasons for and mechanisms of burdening the right. Where disarmament is targeted at preventing harm by an individual who has shown a propensity to misuse guns, historical analogues support the restriction.
Range distinguished, not rejected: Defendants with nonviolent, nonmenacing records may still find traction in Range’s reasoning in other circuits. In the Fifth Circuit, however, Davis signals that Range does not help where the record shows firearm misuse and danger.
Record building matters: Prosecutors are incentivized to develop a defendant-specific record of dangerousness and firearm misconduct; defense counsel should be prepared to contest what counts as “relevant” history and whether it truly evidences a present “clear threat.”
Sentencing findings can influence constitutional analysis: The panel relied on the district court’s assessment of risk and lack of deterrence, indicating that sentencing-stage findings may intersect with the as‑applied Second Amendment analysis.

The opinion also underscores that facial attacks on § 922(g)(1) remain foreclosed in the Fifth Circuit (Diaz), and that Commerce Clause challenges are likewise foreclosed (Perryman). The unresolved academic debate over whether 1791 or 1868 is the relevant historical anchor point is, for now, secondary in cases where Rahimi’s dangerousness principle clearly applies.

Complex Concepts Simplified

As‑applied vs. facial challenges: A facial challenge argues a law is unconstitutional in all or most applications; an as‑applied challenge argues that the law is unconstitutional as applied to the specific person or circumstances. Davis addresses only the as‑applied question because facial challenges are foreclosed in the Fifth Circuit.
Bruen’s historical-analogue test: Once conduct falls within the Second Amendment, the government must show that the regulation is consistent with historical tradition. Courts compare modern laws to historical analogues by looking at why and how the regulation burdens the right, not by demanding an identical historical statute.
Rahimi’s dangerousness framework: Rahimi recognizes a longstanding tradition of disarming individuals who threaten or misuse weapons. Modern disarmament is permissible where a person poses a clear threat of physical violence.
Predicate felony vs. broader record: Although § 922(g)(1) is triggered by a qualifying prior conviction, the historical analysis can, under Davis, look beyond that single conviction to the defendant’s full, relevant history to assess dangerousness.
Unpublished opinions: In the Fifth Circuit, unpublished opinions are not binding precedent but can be persuasive. Davis itself is unpublished, so it signals the court’s reasoning but does not establish binding circuit law.

Conclusion

United States v. Davis crystallizes the post‑Rahimi trajectory of § 922(g)(1) litigation in the Fifth Circuit: as‑applied challenges hinge on individualized dangerousness. By emphasizing Davis’s pattern of firearm misuse and the district court’s findings that he posed a clear threat, the panel situates § 922(g)(1)’s application within a historical tradition of disarming those who menace others with weapons. The court deliberately avoids resolving hard questions about nonviolent predicate felonies in the abstract, instead endorsing a tailored, record-based inquiry that aligns with Rahimi’s “why and how” focus.

The key takeaway is twofold. First, defendants with records evidencing misuse of firearms or threats of violence are unlikely to prevail on as‑applied challenges to § 922(g)(1) in the Fifth Circuit. Second, even when the predicate felony itself is nonviolent, courts may uphold disarmament if the broader record demonstrates dangerousness. While unpublished, Davis provides a coherent, persuasive template for lower courts and litigants navigating Second Amendment challenges to felon-in-possession prosecutions in the wake of Bruen and Rahimi.