Disarming Debtors, Not Thieves: The Fifth Circuit Limits Lifetime Firearm Bans for Repaid Child‑Support Felonies – Commentary on United States v. Cockerham

I. Introduction

In United States v. Cockerham, No. 24‑60401 (5th Cir. Dec. 17, 2025), the Fifth Circuit held that 18 U.S.C. § 922(g)(1) – the federal “felon‑in‑possession” statute – is unconstitutional as applied to a defendant whose sole predicate felony was a state conviction for failure to pay child support, where the debt had been fully repaid and supervision completed at the time he possessed firearms.

Writing for the court, Judge James C. Ho framed the Second Amendment as a “fundamental civil right” that cannot be treated as “second‑class,” and applied the Supreme Court’s recent text‑and‑history framework from New York State Rifle & Pistol Ass’n v. Bruen and United States v. Rahimi. The panel concluded that the historical tradition of firearm regulation supports permanent disarmament of violent and certain property felons, such as thieves, but not lifetime disarmament of debtors whose obligations have been satisfied.

The decision deepens a growing circuit split over the constitutionality of § 922(g)(1) after Bruen and places the Fifth Circuit at the forefront of as‑applied Second Amendment challenges by non‑violent felons. It also showcases an intra‑circuit debate over method: whether an appellate court should reverse on the current record or remand to allow fuller historical development under the newly articulated test in United States v. Diaz.

II. Background and Procedural Posture

A. The Parties and Underlying Facts

The United States charged Edward Cockerham, a Mississippi resident, with possessing firearms in violation of 18 U.S.C. § 922(g)(1). The predicate felony was a prior Mississippi conviction under Miss. Code § 97‑5‑3 for failure to pay child support.

Key factual points from the record and the Presentence Report (PSR):

Cockerham had pled guilty in state court to felony non‑support, an offense “punishable by imprisonment for a term exceeding one year,” though he actually received five years of probation, not imprisonment.
He ultimately repaid the child‑support arrears and successfully completed probation. At the time of the federal firearms possession, the government conceded he was no longer delinquent and was no longer on probation.
In the incident leading to the federal indictment, Mississippi Bureau of Narcotics agents stopped Cockerham’s vehicle for lack of a license plate after he left a motel. He admitted a gun was under the driver’s seat and said he was on probation for child support. Agents discovered two loaded handguns and drugs (methamphetamine, cocaine, and marijuana) and over $2,000 in cash.
Cockerham fled on foot during arrest, and officers later found drugs along the route of his flight. The PSR also listed prior arrests and charges (including aggravated assault, domestic violence, trafficking, and stalking), but these were unproven allegations, not convictions.

B. Procedural History

The federal indictment charged Cockerham with drug and firearm offenses, including a § 922(g)(1) count predicated solely on his child‑support felony. He moved twice to dismiss the § 922(g)(1) count, arguing that:

§ 922(g)(1) is unconstitutional as applied to him under the Second Amendment;
§ 922(g)(1) is facially unconstitutional under the Second Amendment;
the statute violates the Commerce Clause and Equal Protection Clause; and
the statute is void for vagueness.

The district court, bound at the time by pre‑Diaz Fifth Circuit precedent such as United States v. Jones, rejected his Second Amendment arguments and denied both motions. It also rejected his Commerce Clause, equal protection, and vagueness claims, consistent with then‑controlling circuit authority.

Cockerham entered a conditional guilty plea, preserving his right to appeal his constitutional challenges. On appeal, the Fifth Circuit held that all of his claims except the as‑applied Second Amendment challenge were foreclosed by precedent:

Facial Second Amendment challenge: barred by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), which had already rejected a facial attack on § 922(g)(1).
Commerce Clause: foreclosed by United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013).
Equal Protection and vagueness: foreclosed by United States v. Branson, 139 F.4th 475 (5th Cir. 2025).

The only live issue was the Second Amendment as‑applied challenge. The Majority reversed the conviction on that ground. Judge Ho also wrote a separate concurrence defending the Fifth Circuit’s earlier approach in Rahimi. Judge Higginson dissented, urging remand for further historical development rather than immediate reversal.

III. Summary of the Fifth Circuit’s Decision

The court’s core conclusions can be distilled as follows:

Second Amendment coverage: The Second Amendment “plain text” covers Cockerham’s conduct – possession of firearms – and he is among “the people” protected by the Amendment, even though he is a felon.
Government’s historical burden: Under Bruen and Rahimi, once coverage is established, the government must show that applying § 922(g)(1) to this defendant is consistent with the Nation’s “historical tradition of firearm regulation,” using historical analogues.
Theft vs. debtor analogy:
- In Diaz, the Fifth Circuit upheld § 922(g)(1) as applied to a theft felon, finding a historical tradition of permanently punishing thieves, including by capital punishment and estate forfeiture.
- Here, the government attempted to analogize failure to pay child support to theft and pointed to debtors’ prisons as supporting disarmament.
- The court instead treated Cockerham as a “debtor,” not a thief, noting that at the Founding debtors were imprisoned only until their debts were paid, whereas thieves were punished permanently regardless of restitution.
No historical basis for lifetime disarmament of repaid debtors: Because debtors at the Founding were freed – and thus re‑armed in principle – upon paying their debts, the government failed to show a historical tradition supporting lifetime disarmament for a paid‑up debtor like Cockerham.
Timing matters: The government conceded that, at the moment Cockerham possessed firearms, he was neither delinquent on child support nor on probation. Thus, any historical support for temporary disarmament of debtors did not justify his ongoing, lifetime ban.
Unproven allegations irrelevant: Although Cockerham had been arrested for violent and other serious offenses, Fifth Circuit precedent prohibits relying on unproven conduct or broader criminal history to uphold § 922(g)(1). The as‑applied analysis is limited to the nature of the predicate conviction.
Result and remedy: Applying its prior decision in Diaz and related cases, the court held that Cockerham’s conviction under § 922(g)(1) violates the Second Amendment. It reversed the conviction and remanded for proceedings consistent with the opinion, leaving open the theoretical possibility of future prosecution under a theory supported by adequate historical evidence (as in Daniels).

IV. Doctrinal and Precedential Framework

A. Bruen’s Two‑Step Text-and-History Test

The Supreme Court’s decision in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), governs modern Second Amendment analysis. It rejected traditional “means–end” balancing (such as intermediate scrutiny) and prescribed a two‑step approach:

Textual coverage: Courts first ask whether “the Second Amendment’s plain text covers an individual’s conduct.” If it does, the Constitution “presumptively protects that conduct.”
Historical tradition: The burden shifts to the government to show that the challenged regulation is “consistent with this Nation’s historical tradition of firearm regulation.” Courts look for “relevantly similar” historical analogues, focusing on “how” and “why” the regulation burdens armed self‑defense.

Bruen emphasizes analogical reasoning:

Courts do not need a “historical twin,” but they must identify well‑established and representative analogues, not outliers.
The government cannot justify modern restrictions solely by pointing to contemporary policy judgments; history, not “hoplophobia” (fear of weapons), governs.

B. Heller and “Presumptively Lawful” Felon‑in‑Possession Bans

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court recognized an individual right to keep and bear arms for self‑defense, while also noting that nothing in the opinion should be taken to cast doubt on “longstanding prohibitions” on possession of firearms by felons and the mentally ill. The Court labeled such regulations “presumptively lawful.”

Crucially for Cockerham, the Fifth Circuit reads “presumptively lawful” as leaving room for as‑applied challenges. The majority cites Justice O’Connor’s opinion in United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010), which reasoned that if felon bans are only “presumptively lawful,” some applications must be potentially unconstitutional.

C. Rahimi (Supreme Court) and the Role of Surety Laws

United States v. Rahimi, 602 U.S. 680 (2024), applied Bruen to 18 U.S.C. § 922(g)(8), which bars firearm possession by persons subject to certain domestic‑violence restraining orders. The Supreme Court upheld § 922(g)(8), relying in part on historical “surety” laws:

Surety laws allowed courts to require a person suspected of being dangerous to post a bond as a condition of carrying arms, and sometimes to disarm them if they failed to comply.
Although Bruen had previously downplayed surety laws as mere “financial incentives” and “not bans,” the Supreme Court in Rahimi treated them as confirming that historically dangerous individuals could be disarmed.

In his concurrence in Cockerham, Judge Ho underscores this doctrinal shift: he argues that the Fifth Circuit’s earlier invalidation of § 922(g)(8) in its own Rahimi decision faithfully applied Bruen as written at the time, and that the Supreme Court “corrected” its own prior reading of surety laws, not the Fifth Circuit’s.

D. The Fifth Circuit’s Evolving § 922(g)(1) Jurisprudence

Cockerham sits within a rapidly evolving Fifth Circuit line of cases applying Bruen to § 922(g)(1):

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) The court held:
- Felons are part of “the people” protected by the Second Amendment; the government cannot simply define them out of the right.
- “Simply classifying a crime as a felony does not meet the level of historical rigor required by Bruen.”
- As‑applied challenges must focus on the nature of the predicate offense, asking whether permanently disarming persons convicted of that offense accords with historical tradition.
- Surveying colonial and founding‑era law, the court found that theft was severely and often permanently punished (including death and permanent forfeiture of property), and thus upheld lifetime disarmament for a theft felon.
United States v. Mitchell, _ F.4th _ (5th Cir. 2025) The court concluded that the Nation’s historical tradition does not allow the government to categorically disarm all individuals convicted of a “non‑violent offense,” rejecting a blanket rule for non‑violent felons.
United States v. Doucet, 2025 WL 3515404 (5th Cir. 2025) Applying the same framework, the court held § 922(g)(1) unconstitutional as applied to a defendant whose predicate felony was attempted marijuana cultivation, treating it as insufficiently analogous to historically disarmed categories.
United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025) The Fifth Circuit upheld § 922(g)(1) as applied to a defendant still serving his sentence on supervised release. It analogized to the founding‑era practice of disarming convicts during their period of punishment and supervision, even if not physically incarcerated.
United States v. Hernandez, 159 F.4th 425 (5th Cir. 2025) & United States v. Kimble, 142 F.4th 308 (5th Cir. 2025) These decisions crystallize the Fifth Circuit’s rule that the as‑applied analysis under § 922(g)(1) is limited to:
- the nature and elements of the predicate conviction(s); and
- not the defendant’s broader criminal history or “dangerousness” apart from proven convictions.
The court “sift[s] the elements of a defendant's prior convictions through Bruen's analogical framework, and not the defendant himself.”
United States v. Daniels, 124 F.4th 967 (5th Cir. 2025) In the § 922(g)(3) context (unlawful users of controlled substances), the court reversed a conviction for lack of adequate historical support but remanded, explicitly allowing the government to reprosecute on a different, historically grounded theory.
United States v. Smith, 2025 WL 2938691 (5th Cir. 2025) Post‑Diaz, the Fifth Circuit vacated the denial of a motion to dismiss a § 922(g)(1) indictment and remanded for the district court to undertake the required historical analysis in the first instance, signaling that trial courts must now build detailed historical records.

Taken together, these cases lay the groundwork that Cockerham applies: as‑applied scrutiny focusing on the predicate offense; willingness to invalidate applications of § 922(g)(1) where history does not support permanent disarmament; and an insistence that modern policy judgments cannot substitute for historical analogues.

E. Other Circuits and the Emerging Split

The Fifth Circuit acknowledges it is diverging from the majority of circuits. The opinion cites several decisions upholding § 922(g)(1) categorically:

Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025)
United States v. Hunt, 123 F.4th 697 (4th Cir. 2024)
United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024)
United States v. Duarte, 137 F.4th 743 (9th Cir. 2025) (en banc)
Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025)
United States v. Dubois, 94 F.4th 1284 (11th Cir. 2023)

By contrast, the Third and Sixth Circuits have been more open to as‑applied challenges focusing on individual defendants and their predicates, as in:

Range v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024) (en banc)
United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

Cockerham aligns more closely with Range and Williams than with the circuits adopting categorical deference to § 922(g)(1).

V. The Majority’s Legal Reasoning in Cockerham

A. Step One: Second Amendment Coverage

The Majority, echoing Diaz, summarily resolves the first Bruen step:

Possessing a firearm is at the core of the “keep and bear arms” right.
Felons are part of “the people” referenced in the Second Amendment; the government may not categorically exclude them from the scope of the right by mere label.

Accordingly, Cockerham’s conduct is presumptively protected by the Second Amendment, and the analysis turns to historical justification.

B. Step Two: Historical Tradition and the Theft–Debtor Distinction

1. The Government’s Theft Analogy and Reliance on Diaz

The government argued that:

Failure to pay child support is akin to “theft” – unlawfully withholding money that rightfully belongs to a child and custodial parent.
Under Diaz, there is a robust historical tradition of severely and permanently punishing theft, which would justify permanent disarmament.
The Sentencing Guidelines themselves treat non‑support as analogous to theft for guideline‑calculation purposes.

The Majority rejects this analogy on two main grounds:

Bruen demands historical, not modern, analogues: The Sentencing Guidelines are a contemporary policy instrument and cannot substitute for founding‑era laws. If modern legislative or commission judgments sufficed, Bruen’s historical test would be effectively nullified.
Founding‑era law distinguished thieves from debtors: Historical authorities and scholarship on debtors’ prisons show that:
- Debtors were imprisoned “until they repaid” or creditors allowed release.
- Imprisonment ended upon satisfaction of the debt – making disarmament temporary and conditional.
- Thieves, by contrast, remained punished (including by death or long terms) regardless of whether the stolen property was restored; returning stolen goods did not “undo” the criminality of larceny.

Because the founding generation treated debtors and thieves differently, the Majority holds it is improper, under Bruen’s analogical reasoning, to treat a child‑support debtor as a thief for firearms purposes.

2. Debtors’ Prisons and Temporal Disarmament

The opinion relies on several secondary sources describing debtors’ prisons in early American law to establish the temporal nature of disarmament for debtors:

Debtors were held “until they repaid or the creditor decided to let them go.”
Statutes often explicitly tied release to payment or creditor consent, reinforcing that incarceration was a coercive device, not a permanent punitive mark like felony theft.

In modern analogical terms:

Founding‑era debtors were disarmed indirectly because they were physically imprisoned.
Once the economic harm was rectified (debt paid), the justification for confinement – and concomitant disarmament – ended.
That model supports, at most, disarmament only while the person is in default (or under sentence), not a lifetime disability.

3. Application to Cockerham: Status at the Time of Firearm Possession

The timing of events is central to the Majority’s reasoning:

Cockerham’s felony non‑support conviction was in the past.
He paid the arrears and completed probation.
The government conceded at oral argument that he was neither delinquent nor under supervision at the time he was found in possession of firearms.

Under the debtor analogy, any historical justification for disarmament would track the period of default or imprisonment. Once the debt is satisfied and punishment complete, the analogy ceases to support further firearm restriction.

The government suggested that Cockerham might have incurred new child‑support debts by the time of his arrest. The Majority rejects this for two reasons:

Section 922(g)(1) turns on convictions, not on uncharged or unproven allegations of new wrongdoing.
Fifth Circuit precedent (e.g., Kimble) forbids basing § 922(g)(1) analysis on “unproven conduct.”

Thus, the court holds there is “no historical justification” to disarm Cockerham when he possessed a firearm, “never mind for the rest of his life.”

C. Rejecting Modern Policy Rationales and Overcriminalization Concerns

The Majority underscores that § 922(g)(1) is “wildly overinclusive,” echoing critiques by scholars and civil rights groups:

It applies to many non‑violent offenses and even to some misdemeanors treated as felonies under federal definition.
It imposes a lifetime ban even on people who have never served a day in prison.
In an era of “overcriminalization,” where numerous regulatory offenses are felonies, almost anyone can be ensnared by § 922(g)(1).
Hypotheticals like the “ex‑felon father” who temporarily seizes a gun from his child to ensure safety illustrate overbreadth – the statute criminalizes even quasi‑heroic conduct involving firearms.

These policy concerns bolster the court’s insistence on a rigorous historical showing before the government may permanently strip Second Amendment rights. However, consistent with Bruen, these arguments are not treated as independent policy balancing; they function more as reasons to be especially skeptical in the absence of solid historical analogues.

D. Limiting the Inquiry to the Predicate Conviction, Not the Person

In Section III of the opinion, the Majority acknowledges that Cockerham’s PSR lists arrests and charges for aggravated assault, domestic violence, trafficking, and stalking. Nevertheless:

The government expressly declined to rely on those incidents to justify his disarmament, recognizing that they are unproven.
The Fifth Circuit has “not taken” the approach of some other circuits (e.g., the Sixth Circuit’s Williams) that consider a defendant’s entire criminal record to gauge dangerousness.
Instead, circuit precedent “espouses evaluating as‑applied challenges to § 922(g)(1) by focusing on the nature of the predicate offense rather than on the defendant’s broader criminal history or individual characteristics.”

This predicate‑focused approach:

Promotes administrability by tying the analysis to objective, adjudicated facts – the elements of the conviction.
Reinforces the court’s refusal to let “dangerousness” become an amorphous, judicially invented criterion that could swallow the Second Amendment.

E. Remedy and Engagement with the Dissent

The Majority devotes a substantial section to addressing Judge Higginson’s dissent, focusing on procedure and remedy as much as substance.

1. Reverse vs. Remand‑Only

The dissent urges the court to remand “to permit the parties, and the district court, to address” the historical and factual issues in the first instance, citing:

the novelty of the predicate offense (child‑support non‑payment);
the lack of a robust historical record below; and
the intervening shift in Fifth Circuit law under Diaz.

Judge Ho responds that:

In Daniels, the court reversed the conviction outright for lack of historical support and then allowed the government a “second bite” on remand.
In Smith, the court vacated the district court’s denial of a motion to dismiss and remanded, but did so by vacating the operative decision – a form of relief more substantial than the dissent’s proposed “remand only.”
Here, the government, when asked at oral argument, flatly rejected the idea of a remand to build further history and insisted the Fifth Circuit should decide the historical question now. Under party‑presentation principles, the court honors that choice.

Thus, the Majority reverses the conviction (as in Daniels) but, consistent with that precedent, notes that the government could – in principle – bring a new prosecution under a different legal theory supported by historical evidence.

2. Party Presentation and Factual Concessions

The dissent questions whether the record clearly establishes that Cockerham had fully repaid child support and completed probation, suggesting the district court should resolve such “determinative factual circumstances.” The Majority replies that:

The government made explicit concessions at oral argument on both points.
It would be inconsistent with party presentation and basic adversarial principles for the appellate court to disregard those concessions and “litigate the case” for the government.

3. Scope of the Historical Inquiry

The dissent also criticizes the Majority for selecting one plausible historical analogy (debtor) over another (thief) without a fuller evidentiary record and without more extensive historical analysis. Judge Ho responds that:

The government itself admitted that debtors and thieves were treated differently at the Founding, dooming its analogy.
The Majority’s analysis is not gender‑ or victim‑specific; it applies to all debts, not just child support, just as Rahimi was not limited by historic mistreatment of women.

VI. The Concurrence: Vertical Stare Decisis and Rahimi

Judge Ho’s separate concurrence primarily defends the Fifth Circuit’s earlier decision in United States v. Rahimi (5th Cir. 2023), which had invalidated § 922(g)(8) but was later reversed by the Supreme Court.

The concurrence makes two key points:

Vertical stare decisis: Lower courts must follow Supreme Court precedent “even when we don’t expect the Court itself to do so.” Only the Supreme Court can overrule or modify its own decisions. The Fifth Circuit, in its earlier Rahimi decision, did exactly what Bruen required at the time, not what the panel thought the Court might later prefer.
Change in the Supreme Court’s use of surety laws:
- In Bruen, the Court had minimized surety laws as weak support for firearm bans.
- In Rahimi, the Court pivoted, using surety laws as affirmative historical support for disarming certain dangerous individuals.
- Thus, when the Supreme Court reversed the Fifth Circuit in Rahimi, it “corrected itself,” not the Fifth Circuit’s fidelity to Bruen as originally articulated.

The concurrence underscores that the same fidelity to Supreme Court precedent guides the panel’s decision in Cockerham.

VII. The Dissent: Call for Remand, Caution, and Uniformity

Judge Higginson’s dissent is not a defense of affirmance; he does not squarely endorse the government’s historical theory. Instead, he calls for remand to develop a fuller historical and factual record before applying Diaz to this novel predicate.

A. Underdeveloped Historical Record and the Role of District Courts

The dissent emphasizes:

Timing of Diaz: The district court decided Cockerham’s motion to dismiss before Diaz introduced the predicate‑offense‑specific historical inquiry. The parties and court thus did not know to compile extensive, offense‑specific history.
Bruen’s expectation of party‑compiled history: The Supreme Court envisioned that parties would build historical records in the trial court, to be tested adversarially, not reconstructed at the appellate level on sparse briefing.
Smith and Daniels as models: In Smith and Daniels, the Fifth Circuit either vacated and remanded or reversed and remanded to allow the government to satisfy its Bruen burden in the district court under new legal standards. The dissent would follow that path here.

B. Predicate Analogy: Debtor vs Thief

Judge Higginson notes that both analogies – debtor and thief – are at least “plausible”:

As Cockerham argues, child support is a novel, modern construct; historically, children were often treated as property, complicating direct analogies.
The government’s analogy likening willful non‑support to theft, or to evasion of taxes and similar obligations, likewise has intuitive appeal.

Because the historical inquiry is contestable and under‑developed, the dissent believes it is premature for the appellate court to select one analogy definitively and then invalidate a long‑standing federal statute’s application on that basis.

C. Article III Modesty and Piecemeal Carving of § 922(g)(1)

The dissent expresses institutional and practical concerns:

Role of appellate courts: Intermediate courts are supposed to correct legal errors, not make first‑instance factual findings or compile history. That work is best done by district courts with the input of experts and full adversarial testing.
Piecemeal doctrine and notice: As the Fifth Circuit creates increasingly granular “categories” of predicate felonies that do or do not justify lifetime disarmament (theft, violence, supervised release, drug trafficking, some drug use, attempted cultivation, etc.), it becomes difficult for ordinary citizens with felony records to know whether they may lawfully possess firearms.
Vagueness‑like concerns: Without clear statutory or doctrinal lines, the dissent fears the doctrine risks resembling a de facto vagueness problem: individuals cannot reliably predict when § 922(g)(1) constitutionally applies to them.

D. National Disuniformity and “Dangerousness”

Judge Higginson is particularly troubled by the resulting national disuniformity:

In “at least six circuits,” all felons remain barred from possessing firearms; in two others, courts conduct individualized dangerousness assessments that would likely uphold restrictions for someone with Cockerham’s PSR.
Thus, “if Cockerham had pled guilty in any other circuit, his conviction would stand,” whereas in the Fifth Circuit he is constitutionally entitled to possess firearms.

He views this as “intolerable” and questions whether the Fifth Circuit is using “dangerousness” implicitly – despite disclaiming it – to sort acceptable and unacceptable predicates, instead of doing the hard historical work Bruen requires.

E. Historical Development and the Lessons of Rahimi

Finally, the dissent draws an analogy to the court’s earlier misstep in Rahimi:

Historically, women were treated as chattel, which initially made it harder to find direct historical support for domestic‑violence firearm prohibitions.
The Supreme Court nonetheless found adequate analogues for disarming dangerous domestic abusers, showing that the absence of exact “twins” does not end the inquiry.
Similarly, the fact that children were historically treated as property and child support is a modern legal construct does not mean there is no relevant tradition; it means courts must work harder to reason from related historical practices (e.g., child neglect, desertion, family support obligations).

On this view, the Majority’s statement that it is “unable to find” a historical basis for disarming repaid child‑support felons may reflect inadequate historical development rather than an actual absence of tradition – hence the call for remand.

VIII. Clarifying Key Concepts

A. As‑Applied vs Facial Constitutional Challenges

Facial challenge: Argues that a law is unconstitutional in all its applications, or at least in a large fraction of relevant cases. Cockerham’s facial Second Amendment challenge to § 922(g)(1) was foreclosed by Diaz.
As‑applied challenge: Accepts that a statute may be valid generally but claims it is unconstitutional as applied to a particular person or set of facts. Cockerham is an as‑applied challenge: the court does not strike down § 922(g)(1) in all cases, only as used against this debtor‑felon whose debt has been repaid.

B. What Is 18 U.S.C. § 922(g)(1)?

Section 922(g)(1) makes it a federal felony for any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to possess firearms or ammunition in or affecting interstate commerce. Key features:

It uses the maximum possible punishment (“punishable by”), not the sentence actually imposed or served.
It covers many state felonies and some misdemeanors with sufficiently high statutory maximums.
The ban is effectively for life unless the person’s rights are restored by pardon or other formal mechanism.

C. Historical Analogy Under Bruen

Rather than applying modern interest‑balancing tests (like strict or intermediate scrutiny), courts under Bruen:

Identify historical regulations from the relevant period (generally around 1791 for the Second Amendment).
Compare “how” those regulations burdened armed self‑defense and “why” (their justifications) they did so.
Ask whether the challenged modern law imposes a comparable burden that is comparably justified.

Here, the modern law is a lifetime felon‑in‑possession ban. The court asks whether there is a historical analogue where people with similar kinds of convictions were permanently disarmed. For thieves, Diaz found analogues in severe and permanent punishments. For repaid debtors, Cockerham found only temporary disarmament while in prison, not the sort of permanent disability § 922(g)(1) imposes.

D. Vertical Stare Decisis

“Vertical” stare decisis refers to the obligation of lower courts to follow the decisions of higher courts in the judicial hierarchy:

District courts must follow circuit precedent and Supreme Court precedent.
Circuit courts must follow Supreme Court precedent, even if they believe the Court may soon overrule or modify it.

Judge Ho’s concurrence stresses that lower courts cannot anticipate doctrinal “course corrections” by the Supreme Court; they must apply existing precedent as written until the Court changes it.

E. Debtors’ Prisons vs. Punishment for Theft

Debtors’ prisons: Historically, civil debtors – those who owed money under contracts or judgments – could be imprisoned until they paid or creditors forgave the debt. Imprisonment was coercive and ended with repayment. There was no independent stigma of criminality attaching forever once the debt was cleared.
Theft and larceny: Taking another’s property with intent to permanently deprive was criminal. Returning the property later did not erase the crime or its consequences. Punishments could be harsh and permanent, including death or forfeiture of property rights.

The Majority’s core analogical move is to classify child‑support non‑payment as modern debtor behavior rather than theft, and then to treat the end of delinquency and probation as the modern analogue to release from debtors’ prison – at which point permanent firearm disqualification no longer has historical support.

IX. Likely Impact and Future Litigation

A. Implications for Non‑Violent and Debtor‑Type Felonies in the Fifth Circuit

Cockerham, in combination with Diaz, Mitchell, and Doucet, significantly narrows the categorical reach of § 922(g)(1) within the Fifth Circuit (Texas, Louisiana, Mississippi):

Defendants whose sole predicates are non‑violent, debtor‑like offenses (e.g., certain frauds, tax non‑payment, failure to support) will have a strong basis to bring as‑applied Second Amendment challenges, especially if they have completed all sentences and made restitution.
Courts will likely be asked to classify a wide range of property and regulatory offenses as more like “theft” (historically disarmable) or “debt” (only temporarily disarmable), with consequential results for firearm rights.
Defendants who have completed sentences but remain permanently barred from firearm possession may seek post‑conviction relief or civil restoration of rights based on Cockerham’s reasoning.

B. Prosecution Strategy and Plea Bargaining

For prosecutors in the Fifth Circuit:

They may increasingly rely on § 922(g) predicates that fall into clearly upheld categories (e.g., violent felonies, theft, drug trafficking, supervised release violations with firearms) to avoid as‑applied challenges.
In cases involving non‑violent financial or regulatory offenses, they may need to:
- build a robust historical record in the district court; or
- focus on alternative charges (e.g., drug or trafficking offenses) that carry their own firearm enhancements or predicate consequences.
Plea agreements may increasingly preserve or waive Second Amendment challenges explicitly, with defendants and counsel more attuned to the possibility of successful as‑applied challenges.

C. Supreme Court Review and National Doctrine

The sharp split between:

circuits upholding § 922(g)(1) categorically (2nd, 4th, 8th, 9th en banc, 10th, 11th); and
circuits permitting robust as‑applied challenges (3rd, 5th, 6th),

makes § 922(g)(1) a prime candidate for eventual Supreme Court review. Cockerham adds a distinct factual posture – a debtor‑like predicate fully satisfied – to the set of vehicles the Court might consider.

Key unresolved national questions include:

Whether Heller’s “presumptively lawful” language permits or requires as‑applied challenges to felon‑in‑possession bans.
Whether the relevant inquiry is:
- categorical (all felons may be disarmed);
- predicate‑based (as in the Fifth Circuit’s “thief vs debtor” approach); or
- individualized dangerousness‑based (as in some Third and Sixth Circuit opinions).
What level of historical specificity is required to justify permanent firearm bans for modern offenses that do not map neatly onto 18th‑century categories.

D. Potential Legislative and Policy Responses

If the Supreme Court does not quickly restore uniformity, states and Congress may respond by:

Creating or expanding mechanisms to restore firearm rights after a period of law‑abiding conduct, especially for non‑violent felons (as some states already do).
Revising statutory definitions of “felony” or “crime punishable by more than one year” to better align with historical categories of “dangerous” or “serious” offenses.
Enacting more targeted statuses (e.g., time‑limited bans after release, or bans keyed to specific risk factors) that may find stronger historical analogues under Bruen.

X. Conclusion

United States v. Cockerham marks a significant extension of the Fifth Circuit’s post‑Bruen Second Amendment jurisprudence. Building on Diaz and related cases, the court holds that the government cannot permanently disarm a person whose only felony conviction is failure to pay child support, once that debt has been repaid and supervision completed. Historically, thieves could be punished permanently; debtors were only temporarily imprisoned – and thus disarmed – until payment.

The decision:

Clarifies that as‑applied challenges to § 922(g)(1) remain available despite Heller’s “presumptively lawful” caveat.
Commits the Fifth Circuit to a predicate‑focused historical analysis instead of a broad dangerousness inquiry or a categorical upholding of felon‑in‑possession laws.
Highlights institutional tensions over how much historical work appellate courts should do without district‑court development, and over the appropriate remedy (reversal vs remand) when the existing record is thin.
Deepens an already pronounced circuit split that will likely invite Supreme Court intervention on the scope of the Second Amendment as it applies to individuals with criminal records.

In the broader legal landscape, Cockerham underscores how Bruen has transformed Second Amendment litigation from interest‑balancing into a complex exercise in historical analogy. Whether this debtor‑vs‑thief distinction endures nationally will depend on future Supreme Court guidance, but within the Fifth Circuit, Cockerham now stands as a key precedent limiting the federal government’s power to impose lifetime gun bans based solely on repaid debtor‑type felonies.