United States v. Hernandez: Categorical Disarmament of Violent Felons and the Continued Exclusion of Short-Barreled Shotguns from Second Amendment Protection

I. Introduction

In United States v. Hernandez, No. 24-50589 (5th Cir. Nov. 20, 2025), the Fifth Circuit confronted a post‑Bruen Second Amendment challenge to two federal firearms statutes:

• 18 U.S.C. § 922(g)(1): the felon‑in‑possession statute; and
• 26 U.S.C. § 5861(d): the National Firearms Act provision criminalizing possession of an unregistered firearm, here a short‑barreled shotgun.

The defendant–appellant, Marcos Hernandez, is a repeat domestic abuser with multiple convictions for felony assault of a family member under Texas law. In 2023, he was found walking along railroad tracks in El Paso carrying a 12‑gauge short‑barreled shotgun with no serial number and no registration in the National Firearms Registration and Transfer Record. He pled guilty to both counts but preserved constitutional objections.

Hernandez raised three principal constitutional theories:

1. § 922(g)(1) violates the Second Amendment, both facially and as applied to him;
2. § 922(g)(1) exceeds Congress’s power under the Commerce Clause; and
3. § 5861(d) violates the Second Amendment as applied to him.

The Fifth Circuit—reviewing de novo—held that his facial Second Amendment and Commerce Clause challenges were foreclosed by existing circuit precedent and that his as‑applied Second Amendment challenges failed on the merits. The opinion solidifies two important strands of doctrine in the post‑Bruen landscape:

• Short‑barreled shotguns remain outside the core protection of the Second Amendment under United States v. Miller and District of Columbia v. Heller, and lower courts must treat the Supreme Court’s statements on that point as binding.
• Within the Fifth Circuit, as‑applied challenges to § 922(g)(1) are resolved categorically by looking to the nature of the predicate felony, not by engaging in an individualized assessment of a particular felon’s current dangerousness. Violent felonies, including Texas felony assault of a family member, categorically justify disarmament.

II. Summary of the Opinion

The panel (Judges Southwick, Higginson, and Wilson) issued a per curiam opinion affirming Hernandez’s convictions and sentences. The core holdings are:

• Facial Second Amendment challenge to § 922(g)(1): Foreclosed by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024). The court does not revisit it.
• Commerce Clause challenge to § 922(g)(1): Also foreclosed by Diaz. The court declines to discuss it further.
• As‑applied Second Amendment challenge to § 5861(d): Fails because short‑barreled shotguns are not protected "arms" under the Second Amendment, per Miller and Heller.
• As‑applied Second Amendment challenge to § 922(g)(1):
  • The Fifth Circuit adheres to its own post‑Bruen framework: courts examine the predicate felony, not the defendant’s full history or individualized dangerousness.
  • The court recognizes three categories of predicate offenses that "doom" an as‑applied challenge to § 922(g)(1): theft, violence, and possessing arms while on parole in violation of release conditions, as already articulated in United States v. Kimble, 142 F.4th 308 (5th Cir. 2025).
  • Texas felony assault of a family member under Tex. Penal Code § 22.01 is a crime of violence; thus, Hernandez’s violent felonies place him squarely in a category of persons whom Congress may constitutionally disarm.

On that basis, the panel concludes that all of Hernandez’s constitutional arguments are either foreclosed by binding precedent or fail under existing Fifth Circuit doctrine. The judgment is affirmed.

III. Detailed Analysis

A. Factual and Procedural Background

The court recounts in unusual detail Hernandez’s history of domestic violence against Jessica Murillo, the mother of his child:

• August 2017: Arrest for assaulting Murillo and violating a protective order; misdemeanor convictions result.
• November 2017: Arrest after punching Murillo—twelve weeks pregnant—"in the face with both his fists"; another misdemeanor family-violence conviction.
• April 2018: Third incident; Murillo presents with swelling, bruises, and multiple bite marks after Hernandez allegedly bit her "like a dog" and punched her several times; charged with felony assault of a family member due to prior convictions; receives ten years’ deferred adjudication probation.
• July 2018: Fourth assault; Hernandez punches Murillo three times while their two‑month-old baby is in a stroller nearby; ultimately leads to:
  • a new felony family‑violence conviction, and
  • entry of judgment on the earlier deferred adjudication.
  He is sentenced to 45 months’ imprisonment.

These felony family‑violence convictions are the "predicate offenses" supporting § 922(g)(1) in the present federal case.

In May 2023, officers discovered Hernandez walking along railroad tracks in El Paso with a 12‑gauge shotgun that:

• had a 14.25‑inch barrel (making it a short‑barreled shotgun regulated under the National Firearms Act),
• had no serial number, and
• was not registered to him in the National Firearms Registration and Transfer Record.

A December 2023 federal indictment charged:

1. Count 1: Possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1);
2. Count 2: Possession of an unregistered firearm (the short‑barreled shotgun), 26 U.S.C. § 5861(d).

Hernandez moved to dismiss, arguing:

• Both statutes are unconstitutional under the Second Amendment, facially and as applied, in light of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
• § 922(g)(1) exceeds Congress’s authority under the Commerce Clause.

The district court rejected these arguments. Hernandez then pled guilty to both counts, admitting:

• his prior felony convictions,
• possession of the short‑barreled shotgun and ammunition, and
• that the shotgun was unregistered to him.

He received concurrent 57‑month terms of imprisonment, followed by three years of supervised release on each count (concurrent). He timely appealed, presenting essentially the same constitutional challenges.

B. Precedents Cited and Their Influence

1. Supreme Court Firearms Cases: Miller, Heller, and Bruen

The opinion’s treatment of Second Amendment coverage is anchored in two Supreme Court decisions:

• United States v. Miller, 307 U.S. 174 (1939).
  The Supreme Court upheld the National Firearms Act’s regulation of short‑barreled shotguns by reasoning that there was no evidence such a weapon had any reasonable relationship to the preservation or efficiency of a "well regulated militia." Thus, the Court concluded the Second Amendment did not guarantee a right to keep and bear such a weapon.
• District of Columbia v. Heller, 554 U.S. 570 (2008).
  Heller recognized an individual right to keep and bear arms for self‑defense, but it also read Miller to stand for a limiting principle: the Second Amendment does not protect "those weapons not typically possessed by law‑abiding citizens for lawful purposes, such as short‑barreled shotguns." (554 U.S. at 625.) The Hernandez panel quotes and relies on this reading.
• New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
  Bruen rejected means‑end scrutiny and articulated a textual‑and‑historical test: if the Second Amendment’s plain text covers the individual’s conduct, the government must show that the challenged regulation is consistent with the Nation’s historical tradition of firearm regulation.

The key move in Hernandez is to use Miller and Heller to hold that short‑barreled shotguns are simply not within the Second Amendment’s protection at all. If a weapon is outside the scope of "arms" the Amendment protects, then Bruen’s historical‑analogy inquiry never even begins. This is why the panel can say that this point alone is "fatal" to Hernandez’s Second Amendment challenges to both § 922(g)(1) and § 5861(d).

2. Supreme Court Precedent Hierarchy: Rodriguez de Quijas

In a crucial footnote, the panel addresses Hernandez’s argument that Heller and Miller’s discussions of short‑barreled shotguns are merely dicta and have been implicitly overruled by Bruen. The court rejects both moves:

• It invokes Garrett v. Lumpkin, 96 F.4th 896, 902 & n.4 (5th Cir. 2024), to emphasize that the Fifth Circuit treats Supreme Court "explications of law" as binding, whether or not they are strictly necessary to the result.
• It then cites Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989), for the rule that lower courts may not treat Supreme Court precedent as implicitly overruled:

  "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."

This establishes a clear directive: whatever else Bruen might suggest about the scope of the Second Amendment, lower courts cannot declare Heller and Miller overruled by implication, especially on the specific point that short‑barreled shotguns are outside the Amendment’s protection.

3. Fifth Circuit Second Amendment Framework: Diaz, Kimble, and Schnur

The panel leans heavily on a developing line of Fifth Circuit authority setting out how to assess Second Amendment challenges to § 922(g)(1) after Bruen:

• United States v. Diaz, 116 F.4th 458 (5th Cir. 2024)
  • Forecloses both a facial Second Amendment challenge and a Commerce Clause challenge to § 922(g)(1). Hernandez concedes this.
  • Articulates that the "relevant consideration is a defendant's 'prior convictions that are punishable by imprisonment for a term exceeding one year,' not unproven conduct or prior non‑felonious conduct." The panel quotes Diaz for this proposition, underscoring the Fifth Circuit’s focus on predicate felony convictions themselves.
• United States v. Kimble, 142 F.4th 308 (5th Cir. 2025)
  • Holds that "Congress can categorically disarm individuals convicted of violent felonies like drug trafficking," and this conclusion "does not depend on an individualized assessment" of the defendant’s dangerousness.
  • Set out that the Fifth Circuit does not "look beyond" the defendant’s predicate conviction to examine broader history or characteristics when analyzing as‑applied challenges under § 922(g)(1).
  • Identified three categories of predicate offenses that automatically defeat as‑applied challenges: theft, violence, and possessing arms while on parole in violation of release terms.
• United States v. Schnur, 132 F.4th 863 (5th Cir. 2025)
  • Held that Florida’s aggravated battery statute is a "crime of violence" for § 922(g)(1) purposes.
  • Described the underlying principle: a "crime of violence indicates that [a defendant] poses a threat to public safety and the orderly functioning of society," and regulating such a person’s firearm possession is consistent with the historical tradition of disarming those convicted of violent offenses.

Hernandez explicitly incorporates and applies these principles: if the predicate felony is a "crime of violence," the as‑applied challenge fails; no individualized dangerousness assessment is required.

4. Other Circuits’ Diverging Approaches: Duarte, Williams, and Pitsilides

The panel highlights a deepening split among the circuits on how to evaluate § 922(g)(1) as‑applied challenges under Bruen:

• Ninth Circuit: United States v. Duarte, 137 F.4th 743 (9th Cir. 2025) (en banc)
  • Adopts an especially broad view: flatly rejects as‑applied challenges to § 922(g)(1) and upholds disarmament of those who claim their felonies were "non‑violent."
  • Holds that disarming "non‑violent felons" is constitutional, which means the Ninth Circuit does not even open the door to the individualized or categorical as‑applied inquiries entertained elsewhere.
• Sixth Circuit: United States v. Williams, 113 F.4th 637 (6th Cir. 2024)
  • Requires a more individualized assessment for as‑applied challenges.
  • States that such a challenge "necessarily requires considering the individual's entire criminal record—not just the predicate offense for purposes of § 922(g)(1)." The panel quotes this directly.
• Third Circuit: Pitsilides v. Barr, 128 F.4th 203 (3d Cir. 2025)
  • Similarly emphasizes an individualized, record‑based assessment.
  • Requires courts to consider the individual’s entire criminal history and post‑conviction conduct "indicative of dangerousness," along with the predicate offense, to decide whether continued disarmament is warranted.

By juxtaposing these cases with its own precedent, the Fifth Circuit firmly aligns itself with a categorical, predicate‑offense‑focused approach—a middle ground between:

• the Ninth Circuit’s blanket rejection of as‑applied challenges, and
• the Third and Sixth Circuits’ highly individualized dangerousness inquiry.

The panel notes that some Fifth Circuit judges (e.g., in concurrences and dissents in Mancilla and Kimble) have expressed sympathy for a more individualized approach, but emphasizes that the controlling rule in this circuit remains categorical and predicate‑based.

5. Prior Fifth Circuit "Crime of Violence" Decisions: Texas Assault Statute

To classify Hernandez’s prior convictions as "crimes of violence," the panel cites several earlier Fifth Circuit decisions interpreting the Texas assault statute:

• United States v. Rocha Flores, 921 F.3d 1133 (5th Cir. 2019) – Held that assault of a public servant under Tex. Penal Code § 22.01(b)(1) is a crime of violence under 8 U.S.C. § 1326(b)(2).
• United States v. Gracia‑Cantu, 920 F.3d 252 (5th Cir. 2019) (per curiam) – Held that "Assault—Family Violence," Tex. Penal Code § 22.01(b)(2), is a "crime of violence," relying on the en banc decision in United States v. Reyes‑Contreras, 910 F.3d 169 (5th Cir. 2018).
• United States v. Shelton, 325 F.3d 553 (5th Cir. 2003) – Held that § 22.01(a)(1) is a "crime of violence" for purposes of 18 U.S.C. § 921(a)(33)(A) (the federal "misdemeanor crime of domestic violence" definition).

These cases collectively establish that Texas assault involving bodily injury, including family‑violence assault, is a "crime of violence" under various federal definitions. Hernandez leverages those holdings to place Hernandez solidly within the "violent felon" category for § 922(g)(1) purposes.

C. The Court’s Legal Reasoning

1. Threshold Disposition of Foreclosed Claims

The panel quickly dispatches two of Hernandez’s arguments:

• Facial Second Amendment challenge to § 922(g)(1) – Hernandez concedes it is foreclosed by Diaz, and the court accepts that concession.
• Commerce Clause challenge to § 922(g)(1) – Also foreclosed by Diaz. The opinion does not re‑explain the underlying reasoning; it simply notes the precedent and moves on.

This approach underscores a structural point: litigants challenging § 922(g)(1) in the Fifth Circuit post‑Diaz will be confined to as‑applied Second Amendment arguments; facial and Commerce Clause attacks are not viable in that court.

2. Short‑Barreled Shotguns and the Scope of the Second Amendment

The central conceptual move in the opinion is to treat Hernandez’s weapon—a short‑barreled shotgun—as outside the Second Amendment’s coverage. The panel directly quotes Heller, which in turn quoted Miller:

"[I]n the absence of any evidence tending to show that the possession or use of a [short‑barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." (Heller, 554 U.S. at 622 (quoting Miller, 307 U.S. at 178).)

Heller further explained that Miller stands for the rule that:

the Second Amendment does not protect those weapons not typically possessed by law‑abiding citizens for lawful purposes, such as short‑barreled shotguns. (Id. at 625.)

The Fifth Circuit takes this at face value and concludes:

• Short‑barreled shotguns are not the type of "arm" protected by the Second Amendment.
• Therefore, Hernandez’s conduct—possessing such a weapon—falls outside the Amendment’s scope.
• As a result, his Second Amendment challenges to § 922(g)(1) and § 5861(d) fail at the first step of the Bruen inquiry; the government need not show any historical analogs to sustain the regulation.

By explicitly stating that this alone is "fatal" to Hernandez’s challenges, the panel signals that when a case involves unprotected weapons (short‑barreled shotguns, destructive devices, etc.), Bruen’s historical burden-shifting framework does not apply at all.

3. As‑Applied Challenge to § 922(g)(1): The Fifth Circuit’s Categorical Approach

Even if Hernandez’s conduct were within the Second Amendment’s coverage, the panel explains that his as‑applied challenge to § 922(g)(1) would still fail under the Fifth Circuit’s established framework.

a. Competing Models: Categorical vs. Individualized

The opinion contrasts three models:

1. Ninth Circuit (categorical upholding) – Duarte rejects as‑applied challenges entirely; disarmament of all felons, including those claiming their crimes were non‑violent, is valid.
2. Third and Sixth Circuits (individualized dangerousness) – Williams and Pitsilides require case‑by‑case assessments of the defendant’s full criminal history and post‑conviction behavior.
3. Fifth Circuit (categorical disqualification based on predicate offense) – The court focuses on the type of predicate felony, not on individualized assessments of current dangerousness.

The Fifth Circuit confirms that it adheres to the third model. It explicitly rejects the individualized approach:

• "We thus do not embrace the view that courts should 'look beyond' a defendant’s predicate conviction and assess whether the felon's history or characteristics make him likely to misuse firearms." (Kimble, quoted in Hernandez.)
• "The relevant consideration is a defendant's 'prior convictions that are punishable by imprisonment for a term exceeding one year,'" not unproven or non‑felonious conduct.

In the Fifth Circuit, then, the question is: What kind of felony? not How dangerous is this person in fact?

b. The Three Disqualifying Categories of Offenses

Kimble (as quoted in Hernandez) identifies three categories of prior felonies that automatically defeat an as‑applied § 922(g)(1) challenge:

1. Theft (understood as a category of offenses indicating disregard for others’ property and social order);
2. Violence (offenses involving force or threatened force against persons); and
3. Possessing arms while on parole in violation of the terms of release (indicating a willingness to flout legal constraints concerning weapons).

If a defendant’s predicate felony fits into one of these categories, the Fifth Circuit holds that there is a sufficient historical basis to categorically disarm that person, without needing individualized evidence of dangerousness.

c. Applying the Framework to Hernandez

Hernandez’s predicate offenses are felony convictions for assault of a family member under Texas Penal Code § 22.01. The statute defines assault to include:

• intentionally, knowingly, or recklessly causing bodily injury to another;
• threatening another with imminent bodily injury; or
• offensive or provocative physical contact.

The panel relies on prior Fifth Circuit case law (Rocha Flores, Gracia‑Cantu, Shelton) to conclude that such assault offenses are "crimes of violence." It then applies the Schnur logic:

• A crime of violence indicates that the defendant "poses a threat to public safety and the orderly functioning of society."
• Regulating the ability of such persons to possess firearms aligns with historical traditions of disarming people convicted of violent offenses.

Because Hernandez’s predicate felonies are plainly violent, the court states:

"[I]f a defendant's predicate felony involves ... violence, his as‑applied challenge to § 922(g)(1) will fail."

Accordingly, even if short‑barreled shotguns were protected arms, the categorical rule that violent felons may be disarmed would still defeat Hernandez’s as‑applied challenge.

4. Treatment of "Dicta" and "Implicit Overruling"

The court’s footnote discussion is doctrinally significant:

• Hernandez argued that Heller’s and Miller’s language about short‑barreled shotguns was dicta.
• He further contended that Bruen implicitly overruled that language.

The panel, citing Garrett and Rodriguez de Quijas, rejects both arguments:

• Even if some Supreme Court discussions are technically dicta, lower courts are to treat them as authoritative statements of law unless and until the Supreme Court itself revises them.
• Lower courts are forbidden from concluding that Supreme Court precedent has been overruled "by implication" unless the Court itself has expressly done so.

This reinforces the hierarchy of authority: Bruen cannot be used, at the court of appeals level, to discard specific doctrinal pronouncements in Heller and Miller about the non‑protection of short‑barreled shotguns.

D. Impact and Future Implications

1. As‑Applied § 922(g)(1) Challenges in the Fifth Circuit

The opinion cements a very high bar for as‑applied Second Amendment challenges to § 922(g)(1) in the Fifth Circuit:

• Violent felons: If the predicate felony is a "crime of violence" (including domestic violence under Texas law), the as‑applied challenge will almost certainly fail.
• Theft and parole‑violating gun possession: These are also in the set of categorical disqualifiers identified in Kimble, so felons with these predicates will likewise face insurmountable hurdles.
• Non‑violent offenses: Although the opinion does not directly address them, Kimble’s categorization suggests that defendants with non‑violent, non‑theft, non‑parole‑violation predicates may still attempt as‑applied challenges, but those efforts will have to grapple with the Fifth Circuit’s historically grounded but offense‑type‑based analysis.

Notably, the opinion:

• Rejects individualized assessments of a felon’s rehabilitative progress or current dangerousness.
• Signals that trial courts in the Fifth Circuit cannot adopt the Third or Sixth Circuit’s more defendant‑specific approach unless and until the Fifth Circuit sitting en banc, or the Supreme Court, reshapes the governing framework.

2. Domestic Violence and Firearms Rights

Hernandez underscores that felony domestic assault convictions are firmly within the "violent felony" category that justifies ongoing firearm prohibition. Coupled with earlier cases classifying domestic violence as a "crime of violence," the opinion:

• Strengthens the federal government’s ability to disarm repeat domestic abusers.
• Reinforces the view that domestic violence poses a grave threat to public safety warranting categorical disarmament.
• Indicates that § 922(g)(1) is constitutionally secure, at least as applied to those with such predicates, notwithstanding Bruen.

3. National Firearms Act and Short‑Barreled Firearms After Bruen

By reaffirming that short‑barreled shotguns are not protected "arms," the opinion has significant implications for litigation under the National Firearms Act:

• Challenges to § 5861(d) (and related provisions) premised on Bruen are unlikely to succeed in the Fifth Circuit when they involve short‑barreled shotguns.
• The government is not required to produce historical analogues for regulating such weapons; courts can summarily reject Second Amendment challenges on coverage grounds.
• The logic may extend to other "unusual and dangerous" weapons historically regulated under the NFA (e.g., destructive devices), though that remains for future cases.

The decision thus anchors NFA short‑barrel regulations firmly within existing Supreme Court precedent and shields them from Bruen-based attacks—unless and until the Supreme Court revisits Miller and Heller’s weapon‑type distinctions.

4. Doctrinal Clarity on Dicta and Lower Court Obligations

The opinion has a broader jurisprudential impact by restating the rule that:

• Courts of appeals must follow the Supreme Court’s specific doctrinal statements, even when later cases (like Bruen) may be read as tension with them.
• Lower courts cannot themselves declare that tension sufficient to treat older cases as implicitly abrogated.

Practically, this will:

• Discourage creative lower‑court efforts to treat Bruen as silently overruling weapon‑type or person‑type limitations in earlier Supreme Court decisions.
• Channel any structural rethinking of those limitations exclusively through the Supreme Court itself.

5. Circuit Split and Potential for Higher Court Review

The opinion acknowledges, and sharpens, a growing divide among the circuits:

• The Ninth Circuit maintains near-total deference to Congress’s choice to disarm all felons.
• The Third and Sixth Circuits endorse individualized, record‑based assessments of dangerousness.
• The Fifth Circuit positions itself in a middle category: it recognizes that some felons (perhaps non‑violent ones) may raise colorable as‑applied challenges, but it resolves those challenges by looking solely at the type of predicate felony.

This mismatch in methodology—categorical vs. individualized—creates a doctrinal split that could eventually attract Supreme Court attention, particularly as as‑applied challenges proliferate in the wake of Bruen. Until then, Hernandez fixes the Fifth Circuit’s approach firmly on the predicate‑offense axis.

IV. Complex Concepts Simplified

1. Facial vs. As‑Applied Constitutional Challenges

• Facial challenge: Argues that a law is unconstitutional in all its applications. If successful, the law is invalidated generally.
• As‑applied challenge: Argues that a law, even if generally valid, is unconstitutional as applied to a particular person or set of facts.

In Hernandez, the facial Second Amendment challenge and the Commerce Clause facial challenge to § 922(g)(1) were already rejected in prior cases, so only the as‑applied Second Amendment arguments were open.

2. The Commerce Clause Challenge to § 922(g)(1)

The Commerce Clause gives Congress power to regulate commerce among the states. Some defendants have argued that § 922(g)(1) (which often requires that the firearm have traveled in interstate commerce) exceeds Congress’s commerce power.

Diaz already held that § 922(g)(1) was within Congress’s power, so the Fifth Circuit treats the Commerce Clause issue as settled and does not revisit it in Hernandez.

3. "Crime of Violence"

"Crime of violence" is a term used in multiple federal statutes and guidelines. Broadly, it refers to crimes that:

• have as an element the use, attempted use, or threatened use of physical force against another person, or
• otherwise involve a substantial risk that physical force may be used.

In this opinion, Texas felony assault of a family member—causing bodily injury to another person—is treated as a "crime of violence." That classification is crucial because:

• It places Hernandez in the "violent felon" category that the Fifth Circuit deems historically disarmable.
• It justifies categorical denial of his as‑applied challenge to § 922(g)(1).

4. Deferred Adjudication Probation

In Texas, "deferred adjudication" is a form of probation in which a defendant pleads guilty and the court defers entering a judgment of conviction. If the defendant successfully completes probation, the case may be dismissed; if he violates conditions, the court can enter a conviction and sentence.

Hernandez initially received deferred adjudication for one felony family‑violence charge, but upon a new assault, the court entered judgment on that earlier charge and sentenced him to prison. These felony convictions later became the predicate felonies for § 922(g)(1).

5. Short‑Barreled Shotgun vs. Ordinary Shotgun

Under federal law, a "short‑barreled shotgun" typically refers to:

• a shotgun having a barrel less than 18 inches in length, or
• a weapon made from a shotgun with an overall length under a specified threshold.

Such weapons are subject to heightened regulation under the National Firearms Act (NFA). In Miller and Heller, the Supreme Court treated short‑barreled shotguns as the sort of "dangerous and unusual" weapons that are not in common lawful use and therefore fall outside the Second Amendment’s core protection.

6. Analogical Reasoning Under Bruen

Bruen requires courts to:

1. Determine whether the Second Amendment’s text covers the person’s conduct (e.g., "keeping" or "bearing" "arms").
2. If yes, ask whether the modern regulation is consistent with the historical tradition of firearm regulation by looking for analogous historical rules.

In the Fifth Circuit’s post‑Bruen framework (as seen in Kimble, Diaz, and now Hernandez), the analogical inquiry is applied to categories of offenders (e.g., violent felons) and weapons (e.g., short‑barreled shotguns)—not to individualized facts about a defendant’s current risk profile.

7. Dicta vs. Holding and "Implicit Overruling"

• Holding: The legal principle necessary to resolve the case, which is binding precedent.
• Dicta: Statements in a court opinion that go beyond what is strictly necessary to decide the case.

Even if certain statements in Heller and Miller are technically dicta, the Fifth Circuit treats them as authoritative guidance from the Supreme Court. Under Rodriguez de Quijas, a lower court must:

• follow Supreme Court cases that "directly control," and
• leave it to the Supreme Court to overrule or revise its own precedent, whether expressly or by clarifying doctrine.

Thus, Hernandez makes clear that lower courts cannot use Bruen as a basis for ignoring the Supreme Court’s express statements that certain weapon types (like short‑barreled shotguns) fall outside the Second Amendment.

V. Conclusion

United States v. Hernandez is a significant addition to the Fifth Circuit’s rapidly evolving Second Amendment jurisprudence. The decision:

• Reaffirms that short‑barreled shotguns are outside the Second Amendment’s protection under Heller and Miller, rendering Bruen’s historical‑analogy test inapplicable where such weapons are concerned.
• Solidifies a categorical, predicate‑offense‑based approach to as‑applied challenges under § 922(g)(1), rejecting individualized dangerousness inquiries and treating violent felonies—particularly domestic violence—as sufficient historical justification for permanent disarmament.
• Affirms that facial Second Amendment and Commerce Clause challenges to § 922(g)(1) are foreclosed in the Fifth Circuit by Diaz.
• Clarifies the obligations of lower courts to treat Supreme Court dicta and precedent as binding unless expressly overruled by the Supreme Court itself.

In the broader legal landscape, Hernandez positions the Fifth Circuit firmly in the camp that:

• allows some space for as‑applied challenges in theory, but
• makes success exceedingly unlikely for any defendant whose predicate felonies fall within established disqualifying categories—especially violent and domestic‑violence offenses.

Unless and until the Supreme Court revisits Miller, Heller, or clarifies Bruen’s application to felon‑in‑possession laws and NFA‑regulated weapons, Hernandez will serve as a leading authority in the Fifth Circuit for categorically sustaining firearm prohibitions against violent felons and upholding federal regulation of short‑barreled shotguns.