Introduction

In United States v. Smith, the Fifth Circuit vacated in part and affirmed in part the district court’s denial of a motion to dismiss an indictment under 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute. The defendant, Larry Donnell Smith, was indicted for possessing a firearm after two Alabama felony convictions—breaking and entering a vehicle and receiving stolen property. He lodged multiple constitutional attacks on § 922(g)(1), principally under the Second Amendment in light of New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).

The key issue on appeal was whether, in an as-applied Second Amendment challenge to § 922(g)(1), the government must identify Founding-era historical analogues that are “relevantly similar” to the defendant’s specific predicate felonies, rather than relying on general assertions that all felons or “dangerous” individuals may be disarmed. The Fifth Circuit held that the district court had not had a fair opportunity to conduct the predicate-specific Bruen analysis, and remanded for the government to meet its burden under Bruen as clarified by the circuit’s recent precedents.

The court also affirmed the district court’s rejection of Smith’s facial Second Amendment challenge, vagueness, Commerce Clause, and Fifth Amendment equal protection claims, as each is foreclosed by binding Fifth Circuit precedent.

Summary of the Opinion

• The Fifth Circuit vacated the district court’s denial of Smith’s as-applied Second Amendment challenge and remanded for a historical analysis tethered to Smith’s particular predicate felonies, consistent with Bruen and the circuit’s recent decisions.
• The court emphasized that, under United States v. Kimble, 142 F.4th 308 (5th Cir. 2025), courts may not look beyond the defendant’s predicate felony convictions to consider broader criminal history or non-felony conduct when adjudicating § 922(g)(1) as-applied challenges.
• The government bears the burden on remand to present Founding-era laws “relevantly similar” to § 922(g)(1) as applied to Smith’s specific offenses, applying the comparability test endorsed in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), and related decisions.
• The court affirmed the district court’s rejection of four other constitutional theories as foreclosed by circuit law: facial Second Amendment challenge (Diaz), vagueness (United States v. Branson, 139 F.4th 475 (5th Cir. 2025)), Commerce Clause (United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013)), and equal protection (United States v. Goody, 143 F.4th 617 (5th Cir. 2025) (per curiam)).

Analysis

Precedents Cited and Their Role

• New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022): Provides the controlling Second Amendment framework: when the Second Amendment’s plain text covers an individual’s conduct, the government must justify regulation by showing consistency with the Nation’s historical tradition of firearm regulation. The Smith panel applies Bruen’s burden-shifting and its emphasis on historical analogues.
• United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied, 145 S. Ct. 2822 (2025): Diaz frames the § 922(g)(1) inquiry as whether “the government [has demonstrated] that the Nation has a longstanding tradition of disarming someone with a criminal history analogous to” the defendant’s predicate felonies. Smith quotes and relies on this predicate-specific approach and on Diaz’s comparability analysis (burdens and justifications).
• United States v. Kimble, 142 F.4th 308 (5th Cir. 2025): Kimble holds that courts should not “look beyond a defendant’s predicate conviction” to assess broader dangerousness or non-felony conduct in § 922(g)(1) as-applied challenges. Smith foregrounds this rule, rejecting the government’s reliance on misdemeanor convictions and recidivism to justify permanent disarmament.
• United States v. Daniels, 124 F.4th 967 (5th Cir. 2025), petition for cert. filed (No. 24-1248): Cited for the “relevantly similar” analogical standard and the methodology for comparing modern and historical regulations (as articulated through Bruen/Diaz).
• United States v. Richard, 775 F.3d 287 (5th Cir. 2014): Provides the standard of review: the constitutionality of a federal statute is reviewed de novo.
• United States v. Orozco, No. 24-50104, 2025 WL 2623429 (5th Cir. Sept. 11, 2025) (Higginson, J., concurring in judgment): Cited for the observation that the law in this area is rapidly evolving and for collecting relevant cases; it underscores the dynamic context in which Smith is decided.
• United States v. Branson, 139 F.4th 475 (5th Cir. 2025): Forecloses a vagueness challenge to § 922(g)(1) in the Fifth Circuit; Smith affirms on that basis.
• United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013): Forecloses Commerce Clause attacks on § 922(g); Smith applies Alcantar to affirm.
• United States v. Goody, 143 F.4th 617 (5th Cir. 2025) (per curiam): Forecloses equal protection challenges to § 922(g)(1) in the Fifth Circuit; Smith follows suit.

Legal Reasoning

The panel begins by noting the standard of review (de novo) and isolating the only non-foreclosed claim: the as-applied Second Amendment challenge. Leaning heavily on Diaz and Kimble, the court reiterates two core requirements for adjudicating § 922(g)(1) as-applied challenges post-Bruen:

• Predicate-specific historical analysis: The government must demonstrate a historical tradition of disarming persons whose criminal histories are analogous to the defendant’s predicate felony convictions, not felons in the abstract.
• No reliance on broader “dangerousness” profile: Courts may not justify § 922(g)(1) as applied by looking beyond the qualifying felonies to the defendant’s misdemeanors, pattern of recidivism, or other non-felony conduct. Kimble expressly disclaims this broader approach.

The record showed that, in the district court, the government did not present Founding-era analogues keyed to Smith’s two predicate felonies. On appeal, the parties’ initial briefing likewise did not address the Fifth Circuit’s intervening decisions (including Kimble) that sharpened the analytical framework. After the panel solicited supplemental briefing, the government continued to emphasize “dangerousness,” rather than offering predicate-specific historical sources.

The panel identified that both sides had proffered potentially relevant but conflicting historical claims—e.g., that some Founding-era jurisdictions punished receipt of stolen goods as misdemeanors versus others treating receipt of stolen horses as a serious felony. The court declined to resolve these disputes in the first instance. Instead, invoking both the “party presentation” principle and the district court’s superior capacity to develop an evidentiary record, the panel remanded for a full predicate-specific Bruen inquiry.

The operative framework on remand is clear:

• The government bears the burden to identify Founding-era laws “relevantly similar” to § 922(g)(1) that justify disarming persons with predicate felonies analogous to Smith’s—namely, breaking and entering a vehicle and receiving stolen property.
• “Relevant similarity” entails comparing whether historic and modern regulations impose a comparable burden on the right to armed self-defense and whether the burdens were comparably justified. See Diaz (quoting Bruen).
• Courts must tether the analysis to the actual elements and character of the predicate crimes, not to a generalized “felon” category or to broader behavioral assessments.

As to the other constitutional claims, the panel affirmed based on binding precedent. The court also noted, without deciding, the government’s appeal-waiver argument regarding several of those claims, explaining that it need not reach waiver because those theories are foreclosed on the merits by circuit law.

Likely Impact

Although unpublished, Smith is a forceful application of recently published circuit precedents (especially Kimble and Diaz) and signals how § 922(g)(1) as-applied challenges must be litigated in the Fifth Circuit going forward:

• District court proceedings will become more historically intensive: Parties should expect evidentiary submissions and expert materials addressing Founding-era treatment of specific offenses analogous to the predicate felonies at issue.
• Government’s burden is focused and non-fungible: The government may not “backfill” a lack of historical analogues by pointing to misdemeanors, probation breaches, or generalized recidivism. The inquiry is offense-specific.
• Heterogeneous outcomes are possible: Because predicate felonies vary (violent, nonviolent, property, regulatory), courts may reach different as-applied results depending on whether persuasive historical analogues exist for disarmament of persons convicted of offenses like receiving stolen goods versus violent burglary or robbery.
• Foreclosed claims remain off the table in the Fifth Circuit: Facial Second Amendment, vagueness, Commerce Clause, and equal protection attacks on § 922(g)(1) are settled against defendants by Diaz, Branson, Alcantar, and Goody.

In practice, Smith encourages careful charge-specific briefing: defendants will argue that certain nonviolent property offenses lacked a Founding-era basis for permanent disarmament, while the government will marshal jurisdiction-specific statutes (e.g., capital treatment of horse theft or receiving stolen horses) to argue that comparable justifications existed for categorical disarmament of certain property offenders.

Remand Roadmap: What the District Court Must Decide

• Define the predicates with precision: Identify the elements and nature of Smith’s Alabama offenses—breaking and entering a vehicle, and receiving stolen property.
• Locate Founding-era analogues: Determine whether laws circa the Founding imposed disarmament or comparable burdens on individuals convicted of analogous offenses (e.g., theft-related crimes, receiving stolen goods, breaking open carriages/wagons or other property-related break-ins).
• Apply the “relevantly similar” test: Assess whether any identified historical regulations imposed a comparable burden on the right to armed self-defense and whether the justification for such burdens aligns with the rationale for § 922(g)(1) as applied to these predicates.
• Consider duration and severity: Were historical penalties temporary disability, capital punishment, or other sanctions? How do those translate to modern permanent disarmament in terms of burden and justification?
• Exclude non-predicate conduct: Do not rely on misdemeanors, arrest history, or general dangerousness that is not encapsulated in the qualifying felonies. Kimble prohibits broadening the lens beyond the predicate convictions.

Complex Concepts Simplified

• As-applied vs. facial challenges: An as-applied challenge argues a statute is unconstitutional in the particular circumstances of a specific person; a facial challenge argues the law is unconstitutional in all (or nearly all) of its applications. Smith’s viable claim is as-applied; his facial challenge is foreclosed by Diaz.
• Predicate felony convictions: The specific felony convictions that trigger § 922(g)(1). Under Kimble, courts must focus the Second Amendment analysis on those convictions, not on the defendant’s broader history.
• Bruen historical-tradition test: Once a person’s conduct falls within the Second Amendment’s text, the government must show that the modern regulation is consistent with historical tradition. “Relevantly similar” means comparing burdens and justifications between old and new regimes.
• “Comparable burden” and “comparably justified”: The inquiry asks not for a one-to-one match, but whether historical regulations imposed similar constraints for reasons analogous to those advanced today (e.g., public safety), and whether the scope and permanence of the burden align.
• Vacate and remand: To vacate is to set aside the lower court’s decision on a particular issue; remand returns the case to the lower court for further proceedings consistent with the appellate ruling.
• Unpublished opinion (5th Cir. R. 47.5): Not designated for publication; typically not binding precedent. Still, Smith’s reasoning is anchored in published, binding decisions like Diaz and Kimble, which govern the remand.
• Party presentation principle: Appellate courts prefer to decide issues as developed by the parties and the trial court. Here, because the relevant law evolved after the district court’s decision, the Fifth Circuit returned the case for a properly framed historical analysis.

Conclusion

United States v. Smith reinforces a critical refinement in post-Bruen adjudication of § 922(g)(1): when a defendant brings an as-applied Second Amendment challenge, the government must justify disarmament by pointing to Founding-era analogues that are relevant to the specific predicate felonies at issue, not to a generalized “felon” category or to the defendant’s broader dangerousness profile. This predicate-focused methodology, crystallized in Kimble and Diaz, shapes the remand: the district court must undertake a historically grounded, offense-specific analysis comparing burdens and justifications.

At the same time, Smith confirms the Fifth Circuit’s settled law that other challenges to § 922(g)(1)—facial Second Amendment, vagueness, Commerce Clause, and equal protection—are foreclosed. While unpublished, Smith is a practical guidepost for district courts and litigants: success or failure in as-applied challenges will now often turn on the quality and specificity of historical evidence connecting Founding-era practices to the defendant’s particular predicate felonies.