Simple Methamphetamine Possession Is Not a Historically Supported Predicate for Lifetime Disarmament Under 18 U.S.C. § 922(g)(1)

1. Introduction

United States v. Hembree sits squarely in the Fifth Circuit’s rapidly developing post-New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022) jurisprudence testing when (and for whom) the federal felon-in-possession ban, 18 U.S.C. § 922(g)(1), can constitutionally impose lifetime disarmament.

Charles Hembree pleaded guilty to possessing a firearm as a felon. His sole disqualifying felony was a 2018 Mississippi conviction for simple possession of methamphetamine. Preserving only an as-applied Second Amendment challenge, he argued that—under Bruen and the Fifth Circuit’s intervening decision in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024)—the Government could not show a historical tradition justifying disarming him based on that predicate.

The core question: Does the Nation’s history and tradition of firearm regulation support permanently disarming a person whose only felony is simple drug possession?

2. Summary of the Opinion

The Fifth Circuit (Judge Higginson) held that § 922(g)(1) violates the Second Amendment as applied to Hembree because the Government failed to carry its burden to identify a relevantly similar historical analogue supporting lifetime disarmament for the predicate felony of simple possession of methamphetamine.

The panel rejected two Government theories:

• “Contraband possession” analogues (e.g., Founding-era severe punishments for receiving stolen goods, mail theft, counterfeiting) were not sufficiently similar.
• A generalized “dangerous persons” rationale could not be used to treat simple possession as inherently dangerous in the way the Fifth Circuit has treated drug trafficking, and the Government could not rely on “orbital” facts outside the predicate conviction to recharacterize Hembree as a trafficker.

Because the conviction was reversed on the preserved as-applied Second Amendment ground, the court declined to reach Hembree’s additional unpreserved challenges (facial Second Amendment, vagueness, Commerce Clause, Equal Protection), and also granted his motion to supplement the record.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

Supreme Court framework and burden

• New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022)
  Provided the governing two-step inquiry: (1) whether the Second Amendment’s text covers the conduct; and if so, (2) whether the Government demonstrates the regulation is consistent with the Nation’s historical tradition of firearm regulation. Hembree operates almost entirely at step two, because Fifth Circuit precedent already treats step one as satisfied for § 922(g)(1).
• United States v. Rahimi, 602 U.S. 680 (2024)
  Reinforced that courts do not require a “historical twin,” only a “historical analogue,” but also anchored the Fifth Circuit’s insistence (quoted through later cases) that the Government bears a “heavy burden” to show relevant similarity. The panel also relied on Fifth Circuit readings of Rahimi to resist turning “dangerousness” into a free-standing, all-purpose standard.

Fifth Circuit’s post-Bruen § 922(g)(1) architecture

• United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied, 145 S. Ct. 2822 (U.S. June 23, 2025)
  This is the opinion’s central engine. Diaz (i) held the Second Amendment’s text covers conduct prohibited by § 922(g)(1) (step one), (ii) required the Government to identify a relevant historical tradition justifying disarmament (step two), (iii) adopted a predicate-focused approach, and (iv) expressly permitted as-applied challenges by defendants with different predicate convictions. Hembree treats Diaz as controlling and extends its felony-by-felony approach to a new predicate (simple meth possession).
• United States v. Connelly, 117 F.4th 269 (5th Cir. 2024)
  Supplied the Fifth Circuit’s “why/how” analogue test: historical and modern laws must share a comparable problem (“why”) and impose a comparable burden (“how”). Hembree uses this lens to conclude the Government’s proposed analogues fail the “why” inquiry.
• United States v. Kimble, 142 F.4th 308 (5th Cir. 2025)
  Crucial for two constraints that decide the case: (1) the analysis is tethered to the predicate conviction, not unproven conduct or contemporaneous facts; and (2) even where “dangerousness” matters, the fit must be shown at the level of the predicate felony. Kimble upheld disarmament for drug trafficking predicates, but emphasized the Government’s analogues were “a closer fit for drug traffickers than for occasional drug users.” Hembree turns that limiting language into a rule of decision: simple possession is not trafficking.
• United States v. Mitchell, 160 F.4th 169 (5th Cir. 2025)
  Reinforced the Government’s “heavy burden,” cautioned against reading Rahimi as making “dangerousness” the new universal test, and—importantly—illustrated the Fifth Circuit’s insistence on contextual, historically grounded analogies rather than abstract dangerousness assertions. Hembree echoes this resistance to dangerousness as a shortcut.
• United States v. Doucet, No. 24-30656, 2025 WL 3515404 (5th Cir. Dec. 8, 2025) (unpublished)
  Functioned as direct, near-term guidance. Doucet rejected the same “contraband” analogues the Government offered here, concluding those Founding-era crimes concerned “theft, fraud, or deceit,” not drug production/consumption. Hembree treats Doucet as foreclosing the Government’s “contraband possession” theory for drug possession predicates.

Additional Fifth Circuit authorities framing the landscape

• United States v. Hernandez, 159 F.4th 425 (5th Cir. 2025) (summarizing “three categories” that doom as-applied challenges: theft, violence, and violating release terms by possessing arms on parole). This taxonomy highlighted that simple drug possession had not been placed in a settled “doomed” category.
• United States v. Mancilla, 155 F.4th 449 (5th Cir. 2025) (Elrod, C.J., concurring), used to (i) describe the circuit split and (ii) note Kimble’s extension to predicates involving possession with intent to distribute—thereby sharpening the trafficking/possession boundary.
• United States v. Daniels, 124 F.4th 967 (5th Cir. 2025), quoted via Kimble, for the idea that analogue assessment requires “sound judgment,” not mere label-matching.
• United States v. Smith, No. 24-60600, 2025 WL 2938691 (5th Cir. Oct. 16, 2025) (unpublished), cited to emphasize doctrinal flux and the sometimes-needed remand practice.
• United States v. Morgan, 147 F.4th 522 (5th Cir. 2025), cited to justify deciding the issue without remand because the historical record and briefing were sufficient on appeal.
• United States v. Howard, 766 F.3d 414 (5th Cir. 2014), cited for de novo review of a preserved constitutional challenge to an indictment.
• United States v. Cockerham, No. 24-60401, 2025 WL 3653336 (5th Cir. Dec. 17, 2025), cited in a footnote to highlight internal debate about whether the Fifth Circuit’s approach is “felony-by-felony” and the potential notice concerns (via the dissent).
• United States v. Reyes, 141 F.4th 682 (5th Cir. 2025); United States v. Alaniz, 146 F.4th 1240 (5th Cir. 2025); United States v. Simpson, 152 F.4th 611 (5th Cir. 2025); and United States v. Kendall, No. 24-40441, 2025 WL 1983938 (5th Cir. July 17, 2025) were cited chiefly to show that simple possession had appeared in backgrounds but had not been analyzed as the decisive predicate.

Out-of-circuit “dangerousness” citations offered by the Government

• Folatjar v. Att'y Gen., 980 F.3d 897 (3d Cir. 2020) (Bibas, J., dissenting); United States v. Torres-Rosario, 658 F.3d 110 (1st Cir. 2011); and United States v. Williams, 113 F.4th 637 (6th Cir. 2024)
  The panel treated these as insufficient to carry the Government’s historical burden, particularly because they addressed drug dealing/dangerousness at a general level and did not solve the predicate-specific historical-analogue problem for simple possession under the Fifth Circuit’s Diaz/Kimble framework.

Concurrence’s enumerated-powers backdrop

Judge Willett concurred to emphasize a separate constitutional anxiety: whether § 922(g)(1) fits within Congress’s enumerated powers (especially the Commerce Clause), even though Hembree’s Commerce Clause claim was conceded as foreclosed.

• United States v. Bonner, 159 F.4th 338 (5th Cir. 2025) (Willett, J., concurring); United States v. Wilson, --- F.4th ---, 2026 WL 83506 (5th Cir. Jan. 12, 2026) (Willett, J., concurring); United States v. Morrison, 529 U.S. 598 (2000); Alderman v. United States, 131 S. Ct. 700 (2011) (Thomas, J., dissenting from the denial of certiorari); United States v. Seekins, 52 F.4th 988 (5th Cir. 2022) (Ho, J., dissenting from denial of rehearing en banc).
  These authorities support the concurrence’s theme that constitutional liberty is protected redundantly (structure plus rights) and that the commerce-power foundation for federal possession crimes remains contestable in a future case.
• United States v. Rawls, 85 F.3d 240 (5th Cir. 1996) (per curiam) (identified as foreclosing the enumerated-powers challenge within the circuit).
• United States v. Darby, 312 U.S. 100 (1941) and Gonzales v. Raich, 545 U.S. 1 (2005) (commerce-power framing, including Raich’s “three categories” of Commerce Clause regulation).

3.2 Legal Reasoning

(a) Step one (textual coverage) was effectively conceded under circuit precedent.
Following United States v. Diaz, the court treated “the plain text of the Second Amendment” as covering firearm possession, including by persons subject to § 922(g)(1). Thus, the decisive work happened at step two.

(b) Step two demanded a predicate-specific historical analogue (“why/how” fit), with the Government bearing a “heavy burden.”
Relying on Bruen, United States v. Rahimi, and Fifth Circuit applications like United States v. Connelly and United States v. Mitchell, the panel insisted that the Government must identify historical regulations addressing a comparable problem (“why”) and imposing a comparable burden (“how”).

(c) The “contraband” analogue failed because it mismatched the “why.”
The Government argued that Founding-era severe punishments for possessing illicit goods (stolen horses, mail theft, counterfeiting/forgery) implied a tradition allowing permanent disarmament for modern contraband possession (meth). The panel rejected this as already rejected: United States v. Kimble and United States v. Doucet held these examples concern theft/fraud/deceit—categorically different “problems” than drug possession/production/use. Under the Fifth Circuit’s analogue test, “illicit goods” at too high a level of generality is not the relevant “why.”

(d) The “dangerous persons” analogue could not convert possession into trafficking, and the court refused “orbital facts.”
The Government’s second theory was that drug crimes are inherently dangerous because possession enriches traffickers, so the Founding-era disarmament of dangerous people supplies the needed tradition. The panel accepted that Kimble upheld disarmament of drug traffickers as a class Congress deems dangerous, but treated that holding as expressly limited: the analogues there were “a closer fit for drug traffickers than for occasional drug users.” Simple possession lacks the distribution/trafficking element that made the analogy work in Kimble.

Critically, the panel enforced Kimble’s constraint that courts consider the predicate conviction itself, not (i) charges that could have been brought, (ii) contemporaneous allegations, or (iii) presentence-report narrative about the instant firearm case. This foreclosed the Government’s attempt to argue that Hembree “deals drugs” based on facts not inherent to his 2018 possession conviction.

(e) Horizontal consistency with intoxicant-related cases reinforced the outcome.
The panel analogized to Fifth Circuit reasoning about intoxicants, citing United States v. Doucet (attempted marijuana cultivation not supported historically) and the broader recognition that, historically, alcohol regulation did not disarm “ordinary citizens who consumed alcohol” (via United States v. Connelly). It also invoked Connelly and Mitchell (in the § 922(g)(3) context) to underscore that “dangerousness” is not an all-purpose substitute for historical proof.

(f) Remedy and scope.
Having found the Government’s historical showing insufficient for this predicate, the court reversed the conviction as unconstitutional as applied and—consistent with Mitchell—declined to address other issues.

3.3 Impact

Within the Fifth Circuit, Hembree establishes that simple methamphetamine possession—standing alone—does not currently qualify as a historically supported basis for lifetime disarmament under § 922(g)(1).

Doctrinally, the decision strengthens (and operationalizes) several trends:

• Predicate-specific adjudication: The Fifth Circuit’s “felony-by-felony” method continues to expand the list of predicates that fail under Bruen step two.
• Trafficking/possession line-drawing: Kimble remains a trafficking case; Hembree solidifies that the Government must do distinct historical work for non-trafficking drug possession felonies.
• Limits on “dangerousness” rhetoric: General assertions that a category of offenders is dangerous will not suffice absent a historically grounded analogue tied to the particular predicate offense (and the Fifth Circuit will resist importing individualized dangerousness inquiries that look beyond the conviction itself).
• Constraint on evidentiary maneuvering: Prosecutors cannot salvage a weak predicate by pointing to contemporaneous firearm-case facts or to dismissed/uncharged drug-trafficking theories when the predicate is simple possession.

Nationally, the opinion deepens the already-recognized circuit divergence referenced in United States v. Mancilla: while many circuits have upheld § 922(g)(1) for all felons, the Fifth Circuit continues to invalidate the statute as applied to certain predicates. The decision thus increases the likelihood of further en banc review or Supreme Court intervention to resolve both (i) the appropriate level of generality for historical analogues and (ii) whether “dangerousness” is a permissible organizing principle, and if so, how it must be proven.

4. Complex Concepts Simplified

• “As-applied” vs. “facial” challenges: An as-applied challenge claims a law is unconstitutional for this defendant in these circumstances. A facial challenge claims a law is unconstitutional in all (or nearly all) applications. Hembree won only on the as-applied theory.
• Bruen’s two-step test: If the Second Amendment’s text covers the conduct (here, possessing a firearm), the Government must justify the restriction by pointing to historical traditions of similar firearm regulation.
• “Historical analogue” (not a “historical twin”): The Government need not find an identical Founding-era statute, but must show a relevantly similar tradition addressing a comparable problem and imposing a comparable burden.
• The “why/how” test: The historical law and the modern law must match in (i) the problem addressed (“why”) and (ii) the burden imposed (“how”). In Hembree, the “why” mismatch (theft/fraud contraband vs. drug possession) was decisive.
• Predicate-focused review: Under Diaz and Kimble, the court looks to the defendant’s qualifying conviction (the predicate felony), not to broader character evidence or allegations. That is why the Government could not treat Hembree as a trafficker based on presentence-report facts about the firearm incident.

5. Conclusion

United States v. Hembree extends the Fifth Circuit’s post-Bruen project by adding a clear holding of first impression: the Government has not shown a historical tradition that supports lifetime disarmament under § 922(g)(1) for a person whose only predicate felony is simple possession of methamphetamine.

The opinion’s significance lies less in any broad invalidation of § 922(g)(1) and more in the method it enforces: a historically anchored, predicate-specific analysis that rejects high-level analogies (“contraband”) and resists generalized dangerousness arguments untethered to the predicate offense.