McCane Still Controls After Rahimi: Tenth Circuit Reaffirms § 922(g)(1)’s Constitutionality and Clarifies Preservation When the District Court Acts Sua Sponte

Introduction

In United States v. Forbis (consolidated with United States v. Smith), the United States Court of Appeals for the Tenth Circuit reversed district court orders dismissing indictments brought under 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute. The panel—Judges Tymkovich, Carson, and Federico—held that its preexisting circuit precedent, United States v. McCane, 573 F.3d 1037 (10th Cir. 2009), remains binding after the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680 (2024), as confirmed by the Tenth Circuit’s recent decision in Vincent v. Bondi (Vincent III), 127 F.4th 1263 (10th Cir. 2025).

The case involved two defendants—William James Forbis and Daniel Duane Smith, Jr.—each indicted by separate grand juries for violating § 922(g)(1). Both had underlying nonviolent felony convictions. After shifting Second Amendment doctrine and intervening appellate developments, district courts dismissed the indictments on the view that Bruen and Rahimi abrogated McCane and rendered § 922(g)(1) unconstitutional as applied to these nonviolent felons. The government appealed.

The central questions presented were: (1) whether the government preserved its argument that McCane controls when the district court sua sponte invited dismissal, and (2) whether, in light of Vincent III, § 922(g)(1) remains constitutional as applied to nonviolent felons within the Tenth Circuit.

The Tenth Circuit answered yes on preservation and yes on constitutionality, reversed the dismissals, and remanded for further proceedings.

Summary of the Opinion

Jurisdiction: The court exercised appellate jurisdiction under 28 U.S.C. § 1291.
Standard of Review: Although dismissal of an indictment is generally reviewed for abuse of discretion, de novo review applies to dismissals grounded in constitutional rulings. The panel applied de novo review.
Preservation: The government’s McCane-based argument was preserved because the district court sua sponte raised and resolved McCane’s applicability on the merits, obviating the need for the government’s separate objection.
Merits: Following Vincent III, which held that Rahimi did not “indisputably and pellucidly abrogate” McCane, the panel held that McCane remains binding law. Because McCane upholds § 922(g)(1) against Second Amendment challenges and draws no distinction between violent and nonviolent felons, the defendants’ as-applied challenges are foreclosed.
Disposition: The panel reversed the district court dismissals and remanded for further proceedings. The defendants conceded that Vincent III required reversal.
Precedential Status: The disposition is an “Order and Judgment” issued without oral argument. It is not binding precedent except under law-of-the-case, res judicata, and collateral estoppel, but may be cited for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Analysis

Precedents Cited and Their Influence

The panel’s reasoning turns on the Tenth Circuit’s intra-circuit stare decisis rules and recent Second Amendment decisions:

United States v. McCane, 573 F.3d 1037 (10th Cir. 2009): The foundational Tenth Circuit precedent upholding § 922(g)(1) against Second Amendment challenges. Crucially, McCane does not carve out a carve a distinction for “nonviolent” felons; it sustained the prohibition categorically.
District of Columbia v. Heller, 554 U.S. 570 (2008): Although the panel does not revisit Heller in depth, both Bruen and Rahimi recognize Heller’s dictum that “longstanding prohibitions” on felon firearm possession are “presumptively lawful.” That recognition underpins the Tenth Circuit’s view that neither Bruen nor Rahimi implicitly overruled McCane.
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): Bruen announced the now-familiar historical-tradition test: when the Second Amendment covers an individual’s conduct, government must justify regulation as consistent with the Nation’s historical tradition. In Vincent I, the Tenth Circuit held that Bruen did not abrogate McCane, given Bruen’s reaffirmation of Heller’s carveouts for felon-in-possession laws. Although Vincent I was later vacated, this reasoning reemerged in Vincent III.
United States v. Rahimi, 602 U.S. 680 (2024): Rahimi applied Bruen’s test to § 922(g)(8) (domestic violence restraining order recipients), concluding the statute passed constitutional muster because the Second Amendment permits disarming persons judicially found to pose a credible threat to others’ physical safety. Notably for the Tenth Circuit, Rahimi also recognized the continued “presumptive lawfulness” of bans on possession by felons, echoing Heller. That recognition was pivotal in Vincent III and, by extension, here.
Vincent v. Garland (Vincent I), 80 F.4th 1197 (10th Cir. 2023), vacated by Vincent v. Garland (Vincent II), 144 S. Ct. 2708 (2024), and reaffirmed in substance by Vincent v. Bondi (Vincent III), 127 F.4th 1263 (10th Cir. 2025): Vincent I held Bruen did not abrogate McCane; the Supreme Court GVR’d (granted, vacated, and remanded) in light of Rahimi (Vincent II). On remand, Vincent III held Rahimi likewise did not abrogate McCane, explicitly reaffirming that § 922(g)(1) remains constitutional in the Tenth Circuit, including as applied to nonviolent felons.
Preservation and standard-of-review authorities: Singleton v. Wulff, 428 U.S. 106 (1976) (general rule against considering issues not passed upon below); Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144 (10th Cir. 2012) (party must alert district court and seek a ruling to preserve); United States v. Todd, 446 F.3d 1062 (10th Cir. 2006) and United States v. Hernandez-Rodriguez, 352 F.3d 1325 (10th Cir. 2003) (exception where district court sua sponte raises and resolves an issue on the merits); United States v. Guinn, 89 F.4th 838 (10th Cir. 2023) (party may challenge such rulings on addressed grounds); United States v. Doe, 58 F.4th 1148 (10th Cir. 2023); United States v. Friday, 525 F.3d 938 (10th Cir. 2008); United States v. Chavarria, 140 F.4th 1257 (10th Cir. 2025) (standards distinguishing abuse-of-discretion from de novo review where constitutional rulings are involved).
Other circuits’ post-Bruen approaches (not controlling but illustrating the landscape): The panel notes divergent approaches: some circuits remain bound by pre-Bruen precedent upholding § 922(g)(1) even as to nonviolent felons (Fourth, Eighth, Ninth en banc, and Eleventh), others apply Bruen and uphold the statute as applied in various circumstances (Fifth and Sixth), while the Third Circuit has found § 922(g)(1) unconstitutional as applied in a case before it. See, e.g., 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); United States v. Dubois, 139 F.4th 887 (11th Cir. 2025); United States v. Diaz, 116 F.4th 458 (5th Cir. 2024); United States v. Williams, 113 F.4th 637 (6th Cir. 2024); Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024) (en banc).

Legal Reasoning

1) Standard of Review and Preservation

The panel begins by clarifying that because the dismissals were based on constitutional grounds, de novo review applies. That framing determines how the court evaluates the district courts’ legal conclusions about the Second Amendment.

On preservation, although the government did not contemporaneously object to the district court’s invitation to dismiss in Forbis’s case, the panel invokes the well-established exception under which an issue is preserved when a district court “sua sponte raises and explicitly resolves” a legal question on the merits. Because the district court itself raised McCane’s viability after the vacatur of Vincent I, invited a motion to dismiss, and then ruled that McCane had been abrogated by Rahimi, the government’s contrary position was preserved for appellate review. The panel thus reviews the constitutional issue de novo “as if” it had been properly raised below.

2) Merits: McCane’s Continuing Force After Bruen and Rahimi

The panel’s core merits holding is straightforward: McCane controls unless and until it is overruled by the Supreme Court or the Tenth Circuit sitting en banc. Under the Tenth Circuit’s “indisputably and pellucidly abrogate” standard, a Supreme Court decision implicitly abrogates circuit precedent only when the conflict is clear and inescapable. Vincent III applied that standard to Rahimi and held that Rahimi did not abrogate McCane. Indeed, Rahimi acknowledged the continued presumptive lawfulness of felon-dispossession laws, tracking Heller’s dictum.

Because McCane did not distinguish between violent and nonviolent felons, and because Vincent III explicitly stated that the Second Amendment “doesn’t prevent application of § 922(g)(1) to nonviolent offenders,” the panel holds that both Forbis’s and Smith’s as-applied challenges are foreclosed in this circuit. The district courts’ contrary decisions—made in the gap between the Supreme Court’s GVR of Vincent I and the Tenth Circuit’s issuance of Vincent III—are reversed.

The panel also notes that both defendants concede that Vincent III requires reversal, eliminating any residual dispute about the controlling effect of circuit precedent.

Impact and Prospective Significance

1) Immediate Effects Within the Tenth Circuit

District courts in the Tenth Circuit remain bound by McCane to uphold § 922(g)(1) against Second Amendment challenges, including as-applied challenges by nonviolent felons.
Pending and future motions to dismiss § 922(g)(1) indictments based on Bruen and Rahimi should be denied absent further instruction from the Tenth Circuit en banc or the Supreme Court.
Prosecutors can rely on this decision as persuasive confirmation—alongside Vincent III—that § 922(g)(1) prosecutions remain viable in the Tenth Circuit post-Rahimi.

2) Preservation Doctrine Clarified in Criminal Appeals

When a district court raises and decides an issue sua sponte, a party’s failure to object does not bar appellate review of that issue. This matters in dynamic constitutional areas where district courts may proactively revisit controlling law.
Counsel should still object where feasible, but this opinion underscores a safety valve that prevents forfeiture when the district court has already squarely decided the legal question on the merits.

3) National Landscape and the Possibility of Supreme Court Review

The panel catalogues a still-developing disagreement among circuits on the scope and application of § 922(g)(1) after Bruen and Rahimi, especially for nonviolent offenders.
Vincent III itself is the subject of a petition for certiorari (No. 24-1155). Should the Supreme Court grant review, nationwide guidance on the historical-tradition test’s application to felon dispossession could follow.
Until then, McCane (as reaffirmed by Vincent III) anchors the Tenth Circuit’s approach, limiting as-applied Second Amendment challenges by nonviolent felons.

4) Persuasive Weight of This Disposition

This case is an unpublished “Order and Judgment,” which is not binding precedent except under the doctrines of law-of-the-case, res judicata, and collateral estoppel. It is, however, citable for its persuasive value.
Its persuasive force is enhanced by its faithful application of Vincent III, which is precedential within the circuit.

Complex Concepts Simplified

As-Applied vs. Facial Challenge: A facial challenge argues a law is invalid in all applications; an as-applied challenge asserts the law is unconstitutional in the specific circumstances of a given defendant. Forbis and Smith mounted as-applied challenges, arguing that disarmament is unconstitutional as applied to nonviolent felons like themselves. The Tenth Circuit, bound by McCane, rejected that argument.
“Abrogation” of Circuit Precedent: A panel is bound by earlier circuit precedent unless the Supreme Court or the circuit en banc overrules it. In the Tenth Circuit, a Supreme Court decision implicitly abrogates circuit precedent only if it “indisputably and pellucidly” conflicts with that precedent. The court held Bruen and Rahimi do not abrogate McCane.
Historical-Tradition Test (Bruen): Once conduct is within the Second Amendment’s text, the government must show its regulation is consistent with the Nation’s historical tradition of firearm regulation. Rahimi applied this test and simultaneously reaffirmed the acceptability of disarming dangerous persons and the presumptive lawfulness of felon dispossession.
GVR (Grant, Vacate, and Remand): The Supreme Court’s GVR in Vincent II did not decide the merits; it asked the Tenth Circuit to reconsider in light of Rahimi. On remand, Vincent III reaffirmed McCane’s vitality.
Sua Sponte Rulings and Preservation: If a district court raises and decides an issue without prompting from either party, a party may still challenge that ruling on appeal; the issue is treated as preserved for appellate review.
Order and Judgment (Unpublished): An unpublished disposition doesn’t create binding precedent for future cases, but it can be cited for persuasive value and is binding as between the parties through doctrines like law-of-the-case.

Conclusion

The Tenth Circuit’s decision in United States v. Forbis cements, once more, the continued force of United States v. McCane in the wake of Bruen and Rahimi. By expressly relying on Vincent III, the court makes clear that § 922(g)(1) remains constitutional in this circuit, including as applied to nonviolent felons. The panel also clarifies an important procedural point: when a district court sua sponte raises and resolves a legal issue, a party may challenge that ruling on appeal without having first lodged an objection below.

Practically, this decision stabilizes § 922(g)(1) prosecutions in the Tenth Circuit pending any further developments from the Supreme Court. Doctrinally, it underscores the circuit’s strict adherence to intra-circuit stare decisis and its requirement that only clear, unmistakable conflict with Supreme Court authority can displace established circuit law. In the broader national conversation—marked by divergent circuit approaches—this case aligns the Tenth Circuit with courts that preserve the constitutionality of § 922(g)(1), while acknowledging that ultimate resolution may rest with the Supreme Court.