Conviction-Based Disarmament After Bruen: The Fifth Circuit Upholds 18 U.S.C. § 922(g)(9) (Domestic-Violence Misdemeanants) as Historically Analogous to Surety and “Going Armed” Laws

I. Introduction

In United States v. Allred (5th Cir. July 15, 2026), the Fifth Circuit addressed—apparently for the first time in the circuit after New York State Rifle & Pistol Ass'n v. Bruen—whether the federal ban on firearm possession by persons convicted of a misdemeanor crime of domestic violence, 18 U.S.C. § 922(g)(9), is constitutional.

The defendant, Jeremy Scott Allred, had a 2004 Texas misdemeanor conviction for “Assault Causing Bodily Injury to a Family Member” tracking Tex. Penal Code § 22.01(a)(1). Federal prosecutors later charged him with possessing a firearm in violation of § 922(g)(9). Allred moved to dismiss the indictment, arguing:

  • Commerce Clause (facial challenge): § 922(g)(9) exceeds Congress’s commerce power; and
  • Second Amendment (as-applied challenge): applying § 922(g)(9) to him fails the Bruen historical-tradition test, particularly because the predicate offense can be committed “recklessly.”

The district court denied the motion; Allred entered a conditional guilty plea preserving the constitutional issues for appeal; and the Fifth Circuit affirmed.

II. Summary of the Opinion

The court rejected both challenges:

  1. Commerce Clause: Although Allred acknowledged United States v. Alcantar foreclosed a commerce challenge to § 922(g)(1), he argued it did not control § 922(g)(9). The panel disagreed, holding that Alcantar’s reasoning applies equally to § 922(g)(9), thus rejecting the facial Commerce Clause attack.
  2. Second Amendment (as applied): Applying Bruen as elaborated by United States v. Rahimi, and using this circuit’s “why/how” analogical framework (as stated in United States v. Hembree), the court held § 922(g)(9) constitutional as applied to Allred. The panel reasoned that domestic-violence misdemeanants fall within the historical tradition of disarming those “perceived to be dangerous,” analogizing § 922(g)(9) to Founding-era surety and “going armed” laws relied on in Rahimi, and to class-based disarmament described in United States v. Kimble. The court adopted a categorical, conviction-based approach and declined to rest on the case-specific facts of Allred’s prior offense.

Judge Graves concurred in the judgment only, arguing that Fifth Circuit precedent and Bruen require individualized assessment in as-applied challenges, and criticizing the panel for extending Kimble’s categorical method to § 922(g)(9).

III. Analysis

A. Precedents Cited and Their Role

1. Commerce Clause: United States v. Alcantar

Allred conceded that United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013) foreclosed a Commerce Clause challenge to § 922(g)(1), but attempted to distinguish § 922(g)(9). The panel acknowledged Alcantar addressed a different subsection, yet treated its reasoning as transferable: if § 922(g)(1)’s interstate-commerce nexus suffices, so does the analogous nexus structure in § 922(g)(9). Thus, Alcantar functioned as the doctrinal bridge to reject the facial Commerce Clause attack without re-litigating Congress’s authority in depth.

2. Second Amendment Framework: New York State Rifle & Pistol Ass'n v. Bruen and United States v. Rahimi

The constitutional core is New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), which requires the government to justify a firearm regulation by showing consistency with “the Nation’s historical tradition of firearm regulation” once the regulated conduct is covered by the Second Amendment’s plain text.

The panel leaned heavily on United States v. Rahimi, 602 U.S. 680 (2024), where the Supreme Court upheld § 922(g)(8)(C)(i) (domestic-violence restraining orders). Rahimi supplied the key historical analogues:

  • Surety laws (bond requirements to prevent anticipated violence); and
  • “Going armed” laws (punishing carrying weapons in a terrifying or threatening manner, including with imprisonment).

In the panel’s view, Rahimi generalizes beyond restraining orders: when a person has been found by lawful process to threaten others’ physical safety, disarmament fits historical tradition. That principle became the template for domestic-violence misdemeanor convictions under § 922(g)(9).

3. Fifth Circuit’s “Why/How” Analogy Method: United States v. Hembree

The panel quoted United States v. Hembree, 165 F.4th 909 (5th Cir. 2026) for the circuit’s operationalization of Bruen/Rahimi: a valid analogue must match both:

  • “Why” the regulation exists (the comparable problem addressed), and
  • “How” it burdens the right (the comparable burden imposed).

This framing structured the opinion: (1) domestic violence as a “why” comparable to historical concern with threats and violence; and (2) conviction-based firearm disability as a “how” comparable (enough) to historical surety/going-armed regimes.

4. Domestic Violence Risk and Legislative Purpose: United States v. Castleman

To justify the modern problem addressed by § 922(g)(9), the court invoked United States v. Castleman, 572 U.S. 157 (2014), for two propositions: domestic violence often escalates and firearms increase lethality; and Congress enacted § 922(g)(9) to close the “dangerous loophole” where many domestic abusers are convicted only of misdemeanors. Castleman thus reinforced the panel’s “why” analysis by describing § 922(g)(9) as aimed at preventing lethal escalation in domestic contexts.

5. Dangerousness and Class-Based Disarmament: United States v. Kimble and United States v. Schnur

The panel treated United States v. Kimble, 142 F.4th 308 (5th Cir. 2025) as the controlling Fifth Circuit model for post-Bruen status-based prohibitions. Kimble upheld § 922(g)(1) (felon-in-possession) as applied to a drug-trafficking defendant, reasoning that:

  • “Governments… long disarmed groups… deemed to be dangerous,” and
  • The Second Amendment allows Congress to disarm classes it reasonably deems dangerous.

The panel extended that logic from felons to domestic-violence misdemeanants: a qualifying § 922(g)(9) conviction is, categorically, a marker Congress may treat as “too dangerous to trust with weapons.”

The panel also cited United States v. Schnur, 132 F.4th 863 (5th Cir. 2025), which rejected an as-applied challenge to § 922(g)(1) by a defendant convicted of aggravated battery, emphasizing the conviction’s indication of a threat to public safety. That case supported the notion that violent conduct convictions fall comfortably within the “dangerousness” tradition.

6. Recklessness and Statutory Coverage: Voisine v. United States

Allred argued the predicate Texas assault could be committed recklessly and that history does not support disarming someone on that basis. The panel addressed Voisine v. United States, 579 U.S. 686 (2016), which held § 922(g)(9) covers reckless assaults. The court acknowledged Voisine is statutory interpretation, not a Second Amendment ruling, but used the decision (and its dissent) to narrow the practical force of Allred’s mens rea argument.

Specifically, the panel explained that even under the concern in Justice Thomas’s dissent about “purely reckless” conduct, Allred’s conduct fit the category where force is intentionally employed but injury is caused recklessly—conduct Justice Thomas accepted as a “use of physical force.” Thus, Voisine did not help Allred as an as-applied challenger on these facts.

7. Other Circuits Upholding § 922(g)(9)

To underscore national convergence, the panel stated it was “join[ing] every other circuit” to uphold § 922(g)(9)’s constitutionality, citing:

  • United States v. Martinez, 169 F.4th 1147 (9th Cir. 2026)
  • United States v. Simmons, 150 F.4th 126 (2d Cir. 2025)
  • United States v. Jackson, 138 F.4th 1244 (10th Cir. 2025)
  • United States v. Nutter, 137 F.4th 224 (4th Cir.)
  • United States v. Bernard, 136 F.4th 762 (8th Cir.)
  • United States v. Gailes, 118 F.4th 822 (6th Cir. 2024)

This lineup matters as an “impact” signal: § 922(g)(9), unlike some other firearm restrictions, is becoming strongly entrenched in post-Bruen appellate case law.

8. The Concurrence’s Precedents: the Methodological Fight Within the Fifth Circuit

Judge Graves’s concurrence highlighted an internal inconsistency in Fifth Circuit methodology for as-applied challenges, citing:

  • United States v. Reyes, 141 F.4th 682 (5th Cir. 2025) (considered criminal history in § 922(g)(1) as-applied challenge)
  • United States v. Betancourt, 139 F.4th 480 (5th Cir. 2025) (considered details of predicate offense; cited United States v. Williams, 113 F.4th 637 (6th Cir. 2024))
  • United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025) (stated as-applied challenges require factoring “particularities”)
  • United States v. Alaniz, 146 F.4th 1240 (5th Cir. 2025) (considered “entire criminal record”; cited Pitsilides v. Barr, 128 F.4th 203 (3d Cir. 2025) and Williams)
  • United States v. Morgan, 47 F.4th 522 (5th Cir. 2025) (considered conduct forming basis of conviction)

He contrasted those with post-Kimble panels applying categorical reasoning, including United States v. Mancilla, 155 F.4th 449 (5th Cir. 2025), United States v. Hernandez, 159 F.4th 425 (5th Cir. 2025), United States v. Cockerham, 162 F.4th 500 (5th Cir. 2025), and United States v. Hembree.

On doctrine, Graves invoked the Fifth Circuit’s “rule of orderliness,” citing Nivelo Cardenas v. Garland, 70 F.4th 232 (5th Cir. 2023), and criticized the panel-by-panel inconsistency as impairing predictability for district courts and litigants. He also cited United States v. Cordova, 176 F.4th 381 (5th Cir. 2026) (Oldham, J., concurring in the judgment), reflecting broader judicial concern.

Finally, Graves cited United States v. Connelly, 117 F.4th 269 (5th Cir. 2024) to illustrate the risk of overly broad status-based disarmament and argued individualized assessment better matches Bruen’s analogical method.

B. Legal Reasoning

1. Applying Bruen Step One: Covered Conduct

Because § 922(g)(9) criminalizes firearm possession, the panel treated the Second Amendment’s plain text as implicated. This shifted the burden to the government to show historical consistency.

2. The “Why”: Domestic-Violence Misdemeanor Convictions as Proxies for Dangerousness

Relying on Rahimi, Castleman, and its own “dangerousness” line (Kimble, Schnur), the panel found the governmental objective comparable to historical aims: preventing violence by those who have threatened or harmed others. The key move is categorical: a conviction for a “misdemeanor crime of domestic violence” is treated as an adequate legislative/judicial marker of dangerousness.

3. The “How”: Indefinite Disarmament Versus Historical Surety and “Going Armed” Constraints

Allred pressed the mismatch that Founding-era surety/going-armed regimes were often temporary, whereas § 922(g)(9) is effectively indefinite. The panel answered in three ways:

  • Analogue, not twin: Rahimi stated a “historical analogue” suffices; a “historical twin is not required.”
  • Judicial determination: although § 922(g)(9) lacks an explicit predictive “credible threat” finding like § 922(g)(8)(C)(i), the panel treated the criminal conviction for bodily injury to a spouse as the relevant judicial determination of a threat/harm.
  • Not necessarily permanent: the panel noted § 922(g)(9) can be lifted if the conviction is “expunged or set aside,” the person is pardoned, or civil rights are restored, citing 18 U.S.C. § 921(a)(33)(B)(ii).

4. Mens Rea and Allred’s “Recklessness” Theory

Allred’s principal as-applied theme was that a “reckless” predicate is insufficiently threatening to justify disarmament. The panel’s response was two-tiered:

  • Doctrinal: Voisine confirms Congress included reckless domestic-violence misdemeanors within § 922(g)(9) as a statutory matter.
  • As-applied narrowing: even if “purely reckless” conduct raised harder questions (as suggested by Justice Thomas’s Voisine dissent), the panel characterized Allred’s conduct as involving intentional force with reckless injury—within the dissent’s accepted category—undercutting the mens rea-based constitutional objection on these facts.

5. Method: The Panel’s Categorical, Conviction-Based Approach

The panel explicitly declined to rely on the particular circumstances of Allred’s predicate offense for the core Bruen analysis, instead adopting a categorical approach: if the conviction qualifies under Congress’s definition of “misdemeanor crime of domestic violence,” then, historically and constitutionally, Congress may treat that class as too dangerous to possess firearms. The panel analogized this to its “felony-by-felony” approach discussed in Hembree, and then effectively translated it into a “qualifying-domestic-violence-misdemeanor-by-qualifying-domestic-violence-misdemeanor” approach for § 922(g)(9).

C. Impact

  • New Fifth Circuit post-Bruen precedent on § 922(g)(9): The decision establishes that, at least for a defendant convicted under a Texas assault statute encompassing intentional/knowing/reckless bodily injury to a family member, § 922(g)(9) survives an as-applied Second Amendment challenge.
  • Reinforcement of “dangerousness” and class-based disarmament: By importing Kimble and emphasizing historical disarmament of groups “deemed dangerous,” the opinion strengthens the government’s hand in defending status-based prohibitions that can be framed as targeting dangerousness.
  • Methodological stakes (categorical vs individualized): The concurrence spotlights an unresolved intra-circuit tension. Litigants may press for en banc clarification, especially because Judge Graves argued earlier Fifth Circuit cases require individualized assessment and that panel inconsistency threatens the rule of orderliness.
  • National landscape: The court’s statement that it joins every other circuit to uphold § 922(g)(9) reduces the likelihood of near-term Supreme Court intervention on this subsection—though the methodological debate about as-applied challenges may remain fertile.

IV. Complex Concepts Simplified

  • Facial vs as-applied challenge: A facial challenge argues a law is invalid in all (or nearly all) applications; an as-applied challenge argues the law is unconstitutional when applied to this defendant’s circumstances.
  • Commerce Clause authority (in § 922(g) cases): These prosecutions typically rely on a jurisdictional element that the firearm (or ammunition) traveled in interstate commerce; courts have repeatedly upheld this structure as within Congress’s commerce power.
  • Bruen test in one sentence: If the Second Amendment covers the conduct, the government must show the regulation is consistent with the nation’s historical tradition of firearm regulation.
  • Historical “analogues”: Courts look for historically comparable regulations—not identical ones. After Rahimi, surety laws and “going armed” laws are key reference points for disarming those who threaten others.
  • Surety laws: Historical laws letting magistrates require a bond from someone suspected of future misbehavior—functionally a preventive measure to deter violence.
  • “Going armed” laws: Historical prohibitions on carrying weapons in a manner that terrorized the public; violations could be punished by imprisonment.
  • Categorical vs individualized assessment: “Categorical” analysis looks to the type of conviction (the class) rather than the person’s specific life facts; “individualized” analysis considers the defendant’s particular history and conduct to assess whether disarmament is historically justified for that person.
  • Recklessness vs intentional force: “Purely reckless” harm can mean accidental injury from risky behavior; “intentional force with reckless injury” means the person deliberately used force, though the resulting injury may not have been specifically intended.

V. Conclusion

United States v. Allred cements, for the Fifth Circuit, a post-Bruen pathway to uphold § 922(g)(9): domestic-violence misdemeanor convictions are treated as constitutionally sufficient markers of dangerousness, and the statute is deemed historically analogous to surety and “going armed” laws (as applied through Rahimi) and to broader traditions of disarming dangerous classes (as emphasized in Kimble).

At the same time, Judge Graves’s concurrence frames the decision as part of a deeper methodological conflict within the circuit—categorical versus individualized as-applied review— with practical consequences for how predictably district courts can administer Second Amendment doctrine in status-based firearms prosecutions.