Home Invasion as a “Dangerousness” Predicate Upholding 18 U.S.C. § 922(g)(1) After Hembree

1. Introduction

In United States v. Lewis (5th Cir. Sept. 4, 2026) (per curiam) (unpublished), the Fifth Circuit rejected an as-applied Second Amendment challenge to the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), brought by defendant-appellant Theopless Lewis. The United States prosecuted Lewis after police executed a search warrant at his home in Monroe, Louisiana and found multiple firearms.

Lewis entered a conditional guilty plea to Counts Two and Three (felon-in-possession and possession of a firearm in furtherance of drug trafficking), preserving his right to appeal the denial of his motion to dismiss Count Two. The central issue on appeal was whether § 922(g)(1) is unconstitutional as applied to Lewis, particularly in light of his Louisiana prior convictions for possession of cocaine (2010) and home invasion (2018).

The case sits squarely in the Fifth Circuit’s post-N.Y. State Rifle & Pistol Ass'n v. Bruen landscape, where courts evaluate firearms regulations by asking whether the regulation is consistent with the Nation’s historical tradition of firearm regulation once the Second Amendment’s text is shown to cover the conduct.

2. Summary of the Opinion

The Fifth Circuit affirmed Lewis’s conviction under § 922(g)(1). While acknowledging its recent holding that simple drug possession “standing alone” does not justify disarmament under § 922(g)(1), the panel held that Lewis’s prior Louisiana home invasion conviction—especially given the underlying conduct of breaking into an occupied home at night and striking the occupant—places him within a historically disarmable class of violent and dangerous persons.

The court concluded that disarming people convicted of home invasion “fits comfortably” within the historical tradition of preventing those who threaten physical harm to others from misusing firearms.

3. Analysis

A. Precedents Cited

  • United States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014)
    Role in Lewis: Supplies the standard of review—because Lewis preserved his constitutional claim by moving to dismiss the indictment, the Fifth Circuit reviewed the as-applied challenge de novo.
  • N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022)
    Role in Lewis: Provides the controlling two-step framework as articulated in the opinion: (1) if the Second Amendment’s plain text covers the conduct, it is presumptively protected; (2) the government must then show the regulation aligns with the Nation’s historical tradition of firearm regulation.
    Key point applied: An analogue need not be “a dead ringer,” focusing instead on relevant similarity.
  • United States v. Diaz, 116 F.4th 458 (5th Cir. 2024)
    Role in Lewis: Establishes in this circuit that the Second Amendment’s “plain text” covers the conduct prohibited by § 922(g)(1), shifting the burden to the government on historical tradition.
    Doctrinal move: Frames the inquiry as whether there is a tradition of disarming persons with a criminal history analogous to the defendant’s.
  • United States v. Simpson, 152 F.4th 611 (5th Cir. 2025)
    Role in Lewis: Authorizes consideration not only of the fact of a predicate conviction, but also the conduct underlying the predicate offense when evaluating an as-applied challenge. The Lewis panel leaned heavily on this permission by emphasizing Lewis’s late-night break-in and assaultive conduct.
  • United States v. Hembree, 165 F.4th 909 (5th Cir. 2026)
    Role in Lewis: The pivotal limiting precedent: the court noted that “simple drug possession, standing alone, does not justify applying Section 922(g)(1).” The government conceded Lewis’s cocaine possession conviction could not support disarmament after Hembree, forcing the appeal to turn on the home invasion conviction.
    Practical effect: Narrows the set of nonviolent felonies that can serve—without more—as historically consistent bases for permanent disarmament.
  • United States v. Kimble, 142 F.4th 308 (5th Cir. 2025)
    Role in Lewis: Supplies the governing “dangerousness” principle in the Fifth Circuit’s Bruen-era doctrine: “The Second Amendment allows Congress to disarm classes of people it reasonably deems dangerous,” and as-applied challenges fail where the predicate felony involves violence.
    How Lewis uses it: Frames the controlling question as whether home invasion properly categorizes Lewis as part of a violent/dangerous class.
  • United States v. Schnur, 132 F.4th 863 (5th Cir. 2025)
    Role in Lewis: Reinforces that a conviction for a “crime of violence” indicates a threat to public safety, and that regulation of such persons’ firearm possession is consistent with historical tradition.
    Lewis’s response: Lewis attempted to distinguish Schnur (aggravated battery causing great bodily injury) as more severe violence than home invasion; the panel rejected the need for a near-identical historical match.
  • United States v. Bullock, 123 F.4th 183 (5th Cir. 2024)
    Role in Lewis: Cited by Lewis as distinguishable because it involved aggravated assault and manslaughter. The panel treated Bullock as part of a broader line of violence-based disarmament cases, not a ceiling that limits disarmament to only the most extreme violent felonies.
  • Taylor v. United States, 495 U.S. 575 (1990)
    Role in Lewis: Not a Second Amendment case; invoked for its description of burglary’s inherent risk: entry to commit a crime often creates the possibility of violent confrontation with an occupant. The panel imported this “confrontation risk” reasoning to home invasion, emphasizing that home invasion requires an occupant’s presence, intensifying dangerousness.
  • United States v. Rahimi, 602 U.S. 680 (2024)
    Role in Lewis: Provides a high-level historical-tradition formulation: firearm regulation is consistent with tradition when it aims at “preventing individuals who threaten physical harm to others from misusing firearms.” The panel used this language to “fit” home invasion disarmament within tradition.

B. Legal Reasoning

  1. Text coverage and burden shift. Following United States v. Diaz and Bruen, the panel accepted that Lewis’s conduct—possessing firearms—falls within the Second Amendment’s plain text, so the burden shifted to the government to show historical consistency.
  2. Predicate selection after Hembree. The district court had relied “primarily” on the cocaine possession conviction, but on appeal the government conceded that United States v. Hembree foreclosed using “simple drug possession, standing alone” as the historical basis for disarmament. The case thus turned on whether home invasion is the kind of predicate that places Lewis in a disarmable class.
  3. Dangerousness as the governing historical analogue. The panel applied the Fifth Circuit’s “dangerous class” approach from United States v. Kimble and United States v. Simpson: the Second Amendment permits disarming individuals who “pose a clear threat of violence to others” or whose predicate felony “involve[s] violence.”
  4. Home invasion as inherently confrontational and dangerous. The court analyzed Louisiana’s definition of home invasion (La. Rev. Stat. § 14:62.8) and emphasized:
    • It entails unauthorized entry into an inhabited dwelling while a person is present.
    • It includes intent to use force/violence or to vandalize/deface/damage property.
    Even if committed with an intent focused on property damage, the panel treated the scenario as inherently dangerous because forced entry into an occupied home significantly elevates the likelihood of a violent encounter. To support that proposition, it analogized to burglary risk reasoning from Taylor v. United States.
  5. Conduct-specific reinforcement (Simpson). Invoking United States v. Simpson, the panel used Lewis’s underlying conduct to confirm dangerousness: he broke in late at night and physically assaulted the occupant by grabbing her hair and striking her head. This factual emphasis helped the court avoid a close case over the statute’s alternative intents (violence vs. vandalism) by demonstrating that Lewis’s real-world offense was violent.
  6. Rejecting “qualitative violence” distinctions. Lewis argued that United States v. Bullock and United States v. Schnur involved more severe violence and that historical going-armed/affray laws would not analogize to home invasion. The panel answered with Bruen’s instruction that analogues need not be “dead ringer[s]” and reframed the inquiry: the question is class membership—violent/dangerous felon—rather than matching degree of injury across predicate crimes.
  7. Conclusion under historical tradition. Anchoring the final step in United States v. Rahimi, the panel held disarming home-invasion felons fits the tradition of preventing those who threaten physical harm from misusing firearms; therefore, Lewis’s as-applied challenge failed.

Notably unresolved: The government also argued home invasion could be justified due to its relationship to burglary, and suggested an additional felony (illegal possession of stolen things) might also justify disarmament. The panel affirmed on the “dangerousness/violence” basis and expressly did not reach those alternative grounds.

C. Impact

  • Post-Hembree pathway for § 922(g)(1) prosecutions. After United States v. Hembree narrowed the use of simple drug possession as a disarmament predicate, Lewis illustrates a durable prosecution path: the government can sustain § 922(g)(1) as-applied against defendants with predicate convictions that are inherently confrontational or violence-linked, particularly when the record supports dangerous conduct.
  • Home invasion treated as categorically dangerous for Second Amendment purposes. The opinion signals that home invasion—especially of an occupied dwelling—will likely be treated as a paradigmatic “dangerousness” predicate in the Fifth Circuit because it entails a heightened risk of violent confrontation (reinforced by Taylor v. United States logic).
  • Greater role for underlying facts. By leaning on United States v. Simpson to emphasize Lewis’s underlying violence, the panel underscores that defendants may face a fact-sensitive inquiry in as-applied challenges. Where the record shows real-world violence, courts may avoid fine-grained debates over statutory elements and instead rely on conduct-based dangerousness.
  • Limits of the decision as precedent. The court noted the opinion is not designated for publication (5th Cir. R. 47.5). While it reflects the circuit’s current trajectory, its formal precedential weight is limited compared to published opinions—though its reasoning may still be persuasive, especially because it synthesizes published Fifth Circuit cases (Diaz, Kimble, Simpson, Schnur, Hembree).

4. Complex Concepts Simplified

As-applied challenge
A claim that a law may be constitutional in general but is unconstitutional when applied to a particular person given their specific circumstances (here, Lewis’s particular criminal history).
Bruen “text-and-history” approach
If the Second Amendment’s text covers the conduct (possessing a firearm), the government must justify regulation by showing it fits the Nation’s historical tradition of firearm regulation—often by pointing to historical analogues aimed at similar problems (e.g., disarming dangerous persons).
Historical analogue (not a “dead ringer”)
A past regulation need not match modern law exactly. It must be sufficiently similar in purpose and burden to show that the modern regulation is consistent with historical tradition.
Predicate offense
The prior conviction that triggers § 922(g)(1). The statute applies to persons convicted of crimes punishable by more than one year in prison.
Considering “underlying conduct”
Under Fifth Circuit law (as cited here), courts may look beyond the label of the prior conviction to what the defendant actually did in committing it when evaluating dangerousness for as-applied Second Amendment analysis.
Conditional guilty plea
A guilty plea that preserves a specific issue for appeal—here, Lewis preserved the right to appeal the denial of his motion to dismiss the § 922(g)(1) count.

5. Conclusion

United States v. Lewis reinforces the Fifth Circuit’s post-Bruen framework that § 922(g)(1) remains constitutional as applied to individuals whose prior convictions mark them as violent or dangerous. Critically, the panel accepted that United States v. Hembree removes simple drug possession, standing alone, as a sufficient basis for disarmament—yet it held that home invasion, especially involving an occupied home and actual assaultive conduct, fits within the historical tradition of disarming those who threaten physical harm. The decision therefore illustrates how, even as some nonviolent predicates lose force under modern Second Amendment scrutiny, crimes involving confrontational intrusion and violence-linked risk remain strong grounds for upholding § 922(g)(1) in as-applied challenges.