United States v. Mitchell: Limiting Permanent Felon Disarmament When the Predicate is a Marijuana-User Offense

I. Introduction

United States v. Mitchell, No. 24-60607 (5th Cir. Nov. 21, 2025), is a significant addition to the rapidly developing Second Amendment jurisprudence after District of Columbia v. Heller, N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, and United States v. Rahimi.

The central question is narrow but important: may Congress permanently disarm, under 18 U.S.C. § 922(g)(1), a person whose only felony is a prior conviction under § 922(g)(3) (unlawful user of a controlled substance in possession of a firearm), where the record does not show that he was actually intoxicated while possessing the firearm?

The Fifth Circuit majority (Judge Clement, joined by Chief Judge Elrod) answers “no.” Applying Bruen’s text-and-history test and its own intervening precedents, the court holds that the government failed to identify a “relevantly similar” historical analogue that justifies permanent disarmament of a habitual marijuana user whose predicate offense involved gun possession but not proven contemporaneous intoxication. Section 922(g)(1) is therefore unconstitutional as applied to Mitchell, and his conviction and sentence are vacated.

Judge Haynes dissents, arguing that the case is controlled by United States v. Contreras and that Mitchell’s heavy marijuana use and later violent conduct on supervised release permit treating him as intoxicated and dangerous for Second Amendment purposes, or at least warrant holding the appeal in abeyance pending Supreme Court review in United States v. Hemani.

The decision cements two core principles in the Fifth Circuit:

• Felon-in-possession prosecutions under § 922(g)(1) must be justified by historical tradition with respect to the specific predicate felony, not by an open-ended assessment of the defendant’s entire life history.
• Founding-era intoxication laws support temporary disarmament of persons who are presently intoxicated while armed, but do not support permanent disarmament based solely on habitual marijuana use unconnected to proven contemporaneous intoxication with a firearm.

II. Background and Procedural Posture

A. Mitchell’s criminal history and first federal conviction (§ 922(g)(3))

In 2018, at age nineteen, Mitchell was arrested on outstanding warrants. Police searched the vehicle and found a loaded .40 caliber pistol and a small bag of marijuana. Mitchell admitted being a “drug user,” denied ownership of the gun and drugs at the scene, but later acknowledged in a recorded jail call that the gun – reported stolen – had been in his possession.

He pleaded guilty to possession of a firearm by an unlawful user of a controlled substance under 18 U.S.C. § 922(g)(3), a felony. The Presentence Investigation Report recorded that he smoked about three marijuana cigarettes daily and had used marijuana for the prior three years. He later tested positive for marijuana while on supervised release in 2022. Mitchell was sentenced to 21 months’ imprisonment and three years’ supervised release.

Importantly for this appeal, the opinion notes that there is no evidence in the record that Mitchell was actually intoxicated at the moment he possessed the gun in the 2018 incident beyond the presence of a small quantity of marijuana and his status as a regular user.

B. The 2023 felon-in-possession charge (§ 922(g)(1))

In November 2023, an FBI task force arrested Mitchell on state charges (auto theft and flight). A search of the room he occupied uncovered two handguns: a 9mm handgun and a 9mm Beretta.

The federal government charged him under 18 U.S.C. § 922(g)(1) – the “felon in possession” statute – with his prior § 922(g)(3) conviction serving as the sole predicate felony. At this time Mitchell admitted to daily marijuana use and tested positive for marijuana on several occasions while on supervised release and at his initial appearance.

Mitchell moved to dismiss the indictment on multiple constitutional grounds, including an as-applied Second Amendment challenge under Bruen. The district court denied the motion in a relatively cursory order that did not meaningfully address the interaction between § 922(g)(1) and the § 922(g)(3) predicate under the new Bruen framework.

Mitchell then entered a conditional guilty plea, preserving his right to appeal the denial of his Second Amendment challenge. He received 64 months’ imprisonment and three years’ supervised release and timely appealed.

C. Issues on appeal

Mitchell advanced five constitutional challenges to § 922(g)(1):

1. As-applied Second Amendment violation.
2. Facial Second Amendment violation.
3. Vagueness.
4. Commerce Clause violation.
5. Equal Protection violation.

The Fifth Circuit resolves the case on the first ground alone: it holds § 922(g)(1) unconstitutional as applied to Mitchell and thus does not reach the other arguments.

III. Summary of the Opinion

A. Holding

The majority holds that:

• The Second Amendment’s plain text covers Mitchell’s possession of firearms, even as a felon.
• Under Fifth Circuit precedent, the court’s analysis must focus only on the predicate felony for the § 922(g)(1) conviction – here, the prior § 922(g)(3) marijuana-user-in-possession conviction – and may not rely on Mitchell’s misdemeanors or other conduct.
• The government bears the burden, under Bruen and Rahimi, of identifying historical firearm regulations that are “relevantly similar” in both “why” and “how” they burden the right to keep and bear arms.
• The government’s analogues – “going armed” laws and harsh recidivist punishment statutes – are too broad and not sufficiently analogous to Mitchell’s § 922(g)(3) predicate offense.
• The closest historical analogue for § 922(g)(3) is colonial and founding-era intoxication laws, which permitted temporary disarmament of those presently intoxicated while armed, but not permanent disarmament based on non-contemporaneous or habitual use.
• Because the record does not show that Mitchell was actually intoxicated while armed during either his § 922(g)(3) offense or his later § 922(g)(1) conduct, permanent disarmament under § 922(g)(1) is not consistent with the Nation’s historical tradition.

Accordingly, § 922(g)(1) is unconstitutional as applied to Mitchell. The panel reverses the denial of the motion to dismiss, vacates the conviction and sentence, and denies as moot the government’s motion to supplement the record.

B. Scope and limits of the ruling

The opinion is deliberately narrow:

• It does not declare § 922(g)(1) facially unconstitutional.
• It does not decide whether Mitchell may be disarmed under other subsections, such as § 922(g)(9) (misdemeanor crimes of domestic violence), which the government did not charge.
• It does not rest on the constitutionality of § 922(g)(3) itself; indeed, it notes that a separate case, United States v. Hemani, is pending before the Supreme Court on that question, but emphasizes that the issue here is different: the constitutionality of permanent disarmament under § 922(g)(1) given a particular predicate felony.

IV. Doctrinal Framework and Precedents

A. Bruen’s two-step test and Rahimi’s elaboration

Bruen requires a two-step inquiry:

1. Textual coverage (Step One). Does the “plain text” of the Second Amendment cover the individual’s proposed conduct? If yes, the conduct is presumptively protected.
2. Historical justification (Step Two). The government must show that the challenged law is “consistent with this Nation’s historical tradition of firearm regulation.” This is done by identifying “well-established and representative historical analogues,” focusing on both:
   • Why the historical law burdened arms-bearing (the problem it aimed to solve), and
   • How it burdened that right (the severity and nature of the restriction, such as temporary vs. permanent disarmament, total ban vs. narrow context).

Rahimi (upholding § 922(g)(8) as applied to individuals subject to qualifying domestic violence restraining orders) illustrates this approach: the Court relied on surety laws and “going armed” laws where judges made case-specific findings that someone posed an actual or threatened risk of violence. Rahimi’s key takeaway, which the majority in Mitchell emphasizes, is that disarmament must be tied to a historically grounded category of persons or conduct that specifically implicates public safety.

B. As-applied versus facial challenges

A facial challenge argues that a statute is unconstitutional in all its applications. An as-applied challenge concedes that the law may be constitutional in some circumstances but argues that it is unconstitutional as applied to the challenger’s particular facts.

The Fifth Circuit has stressed that to preserve an as-applied challenge, a defendant must explicitly press it in the district court, not merely hint at it. Here, Mitchell did identify an “as-applied” challenge, and the district court (albeit briefly) acknowledged it. That was enough for the panel to apply de novo review rather than the more restrictive “plain error” standard.

C. The Fifth Circuit’s felon-disarmament line: Diaz, Kimble, Bullock, Morgan

Several Fifth Circuit decisions frame how § 922(g)(1) must be analyzed under Bruen:

• United States v. Diaz, 116 F.4th 458 (5th Cir. 2024).
  • Held that the “plain text” of the Second Amendment covers felons; felons are within “the people.”
  • Adopted a predicate-felony focus: in an as-applied challenge to § 922(g)(1), courts consider only prior convictions punishable by more than one year. Misdemeanors and mere arrests are “not relevant.”
  • Upheld § 922(g)(1) as applied to Diaz because his predicate felonies – including theft – were analogized to founding-era felonies historically punishable by death and forfeiture, making permanent disarmament a “lesser included” historical consequence.
  • Expressly left open that § 922(g)(1) might be unconstitutional as applied to “some felons” with different predicates.
• United States v. Kimble, 142 F.4th 308 (5th Cir. 2025).
  • Applied Diaz and upheld § 922(g)(1) as applied to a defendant with drug-trafficking felonies.
  • Characterized drug trafficking as a “violent” or inherently dangerous felony historically associated with firearm misuse, justifying categorical disarmament.
  • Emphasized that the court’s focus is on the predicate felonies, not unproven conduct or misdemeanors.
• United States v. Bullock, 123 F.4th 183 (5th Cir. 2024).
  • Rejected an as-applied challenge where the felonies were aggravated assault and manslaughter involving shooting an unarmed bouncer and firing into a crowd, killing a bystander.
  • Reaffirmed that historically, legislatures may disarm “dangerous people,” but tied that conclusion to violent predicate offenses involving misuse of firearms, consistent with Diaz.
• United States v. Morgan, 147 F.4th 522 (5th Cir. 2025).
  • Reaffirmed Diaz’s “predicate-only” scope for § 922(g)(1) as-applied challenges and clarified that facts “beyond a single qualifying conviction” can matter if they are part of, or closely tied to, the predicate felony itself.

Together, these cases establish that in the Fifth Circuit, § 922(g)(1) survives as-applied challenges where the predicate felonies are historically comparable to violent or death-eligible offenses (such as serious theft, violent assault, or drug trafficking), but they leave space for defendants with distinct predicates to prevail under Bruen.

D. § 922(g)(3) and drug-user disarmament: Connelly, Daniels, and Contreras

Three Fifth Circuit cases are crucial to understanding Mitchell:

• United States v. Connelly, 117 F.4th 269 (5th Cir. 2024).
  • Involved a non-violent marijuana user who occasionally smoked for sleep and anxiety and kept firearms at home. There was no evidence she was intoxicated while armed during the offense.
  • The court rejected three historical analogues (mentally ill disarmament, general “dangerousness” regulations, and broad intoxication laws) as insufficiently comparable to § 922(g)(3)’s per se ban on “unlawful users.”
  • Held that American historical tradition supports, “at most, a ban on carrying firearms while an individual is presently under the influence.”
  • Thus, § 922(g)(3) was held unconstitutional as applied to Connelly, while the statute was not held facially unconstitutional because it could validly apply to persons shown to be presently intoxicated while armed.
• United States v. Daniels, 124 F.4th 967 (5th Cir. 2025).
  • Another § 922(g)(3) as-applied challenge. Daniels was a frequent marijuana user often observed with marijuana and guns in his truck; one incident involved burning marijuana and loaded weapons within arm’s reach.
  • Nonetheless, the jury instructions allowed conviction based on “recent enough” drug use, without requiring proof that Daniels used marijuana “on a particular day” or “within weeks” of his gun possession.
  • The court held that, because the jury was not required to find Daniels actually intoxicated while armed, § 922(g)(3) was unconstitutional as applied to him, reaffirming Connelly’s central holding: “disarming individuals solely for their prior, occasional, or habitual marihuana use” lacks historical support.
• United States v. Contreras, 125 F.4th 725 (5th Cir. 2025).
  • Involved § 922(g)(1) with a § 922(g)(3) predicate. Contreras had two prior marijuana misdemeanors and one § 922(g)(3) felony. In his g(3) offense, he was intoxicated while armed – officers smelled marijuana, found larger quantities, paraphernalia, and a loaded gun.
  • The Fifth Circuit, applying Diaz, limited its analysis to the g(3) felony and then looked to historical intoxication laws, concluding there was a robust tradition of disarming presently intoxicated individuals.
  • Because Contreras was intoxicated while armed during both his g(3) and later g(1) conduct, § 922(g)(1) was constitutional as applied to him.
  • The court additionally noted a separate historical basis for disarming people while completing sentences (e.g., on supervised release), which also covered Contreras.

Mitchell sits squarely at the intersection of these lines: it is a § 922(g)(1) case anchored to a § 922(g)(3) predicate, but unlike Contreras, there is no strong evidence of contemporaneous intoxication.

V. Detailed Analysis of the Majority Opinion

A. Preservation and standard of review

The government argued (initially) that Mitchell’s as-applied challenge might not be preserved. The panel disagreed. Mitchell’s motion to dismiss expressly argued that § 922(g)(1) was unconstitutional “as applied to him,” and the district court’s order acknowledged and rejected that as-applied challenge, albeit briefly.

Relying on Reyes, Morgan, and Zinnerman, the panel holds that this was sufficient for preservation and applies de novo review to the Second Amendment question. The court also notes that the government, in its briefing, effectively conceded preservation before changing its tune at oral argument – a fact that, while not controlling, reinforces de novo review.

B. Step One under Bruen: Second Amendment coverage and the Diaz predicate rule

The court quickly disposes of Step One. Under Diaz and Morgan, felons are among “the people” protected by the Second Amendment, and § 922(g)(1) burdens their possession of firearms, so the statute impinges on a right protected by the Amendment.

The critical move comes in defining the scope of the inquiry. The panel reiterates Diaz:

• Courts may examine only “predicate offenses” that are “punishable by imprisonment for a term exceeding one year.”
• Other convictions, arrests, or conduct are “not relevant” to the § 922(g)(1) as-applied analysis.

For Mitchell, the only such predicate is his § 922(g)(3) conviction. His other misconduct – especially his serious domestic violence misdemeanors and threats while on supervised release – cannot be used to justify disarmament under § 922(g)(1) in this analytic framework. Although the government urges the court to look at the “entire record” to assess “dangerousness,” the panel refuses, citing the Fifth Circuit’s rule of orderliness: one panel cannot overrule Diaz.

C. Rejecting “dangerousness” as a free-standing disarmament test

The government’s main rhetorical theme is that Mitchell is “dangerous” and a recidivist whose behavior would have been “met with harsh punishment” at the Founding. It supports this with:

• Rahimi’s statement that when an individual poses a “clear threat of physical violence,” he may be disarmed.
• Fifth Circuit dicta in Bullock that legislatures may prohibit “dangerous people” from having guns.
• Third and Sixth Circuit cases (Pitsilides, Williams) that permit courts to examine a defendant’s entire record to decide whether he is dangerous enough to disarm.

The majority carefully cabins this “dangerousness” language:

• Rahimi is read narrowly as addressing only § 922(g)(8), which applies after a judicial finding that the defendant poses a “credible threat” under a specific restraining order; Rahimi does not establish “dangerousness” as the general constitutional test for all firearm regulations.
• Bullock is reconciled with Diaz because the dangerousness there flowed directly from the violent nature of the predicate felonies (aggravated assault and manslaughter), not from extraneous conduct.
• Out-of-circuit decisions allowing courts to consider the entire record are declined in favor of Diaz’s predicate-only rule, which is binding in the Fifth Circuit absent Supreme Court or en banc reversal.

The majority does not deny that “dangerousness” can matter; rather, it insists that:

• Dangerousness must derive from the predicate felony itself or be closely tied to it (e.g., a violent way in which the predicate was committed), not from other uncharged or lesser conduct; and
• Dangerousness must be anchored in historical analogues, not derived from the court’s free-floating modern risk assessment.

D. Step Two: Evaluating the government’s historical analogues

1. Going-armed laws

Historically, “going armed” laws punished individuals who “rode or went armed” with “dangerous or unusual weapons” in a manner that terrified others or disturbed the peace. Such offenses could result in imprisonment, fines, and sometimes disarmament.

The majority acknowledges that going-armed laws and § 922(g)(1) share the same basic “how” in some instances: both may impose substantial, even permanent, restrictions on arms possession after a disqualifying offense.

But it finds the “why” fatally dissimilar as applied to Mitchell:

• Going-armed laws targeted people who actually threatened or terrorized others with weapons or who were reasonably likely to provoke violence.
• Mitchell’s § 922(g)(3) predicate, by contrast, was non-violent as charged. There is no record evidence that he “menaced others with firearms” or “disrupted the public order” in the way going-armed laws addressed.
• To claim otherwise, the government must look beyond the § 922(g)(3) conviction to Mitchell’s broader misdemeanor and supervised-release conduct, which Diaz forbids.

The court thus concludes that going-armed laws are “too broad” to serve as a valid analogue for permanent disarmament based purely on a nonviolent marijuana-user-in-possession conviction.

2. Recidivism and harsh punishment statutes

The government also points to colonial and early American laws imposing the death penalty or draconian punishments for repeat offenders, including a 1748 Virginia statute authorizing the death penalty for a third hog-theft offense.

Once again, the majority concedes a superficial similarity in the “how”: execution permanently precludes firearm possession, so permanent disarmament is arguably a lesser included burden.

But it finds two fatal problems:

1. Recidivism premise fails under Diaz. Recidivism analysis presupposes multiple qualifying offenses. Under Diaz’s scope rule, the court can consider only the single § 922(g)(3) felony—Mitchell is not a “recidivist” in the relevant felonious sense.
2. Analogical mismatch in “why.” The death-penalty hog-theft law and similar statutes reflect a tradition of severely punishing certain property crimes like theft, which were historically treated as capital offenses. That tradition does not translate to marijuana use or simple drug-user gun possession, which lack a demonstrated historical analogue as capital or “infamous” crimes.

Building on Diaz and Contreras, the opinion emphasizes that Bruen’s analogical reasoning requires matching both the nature of the predicate conduct and the severity of historical punishment; it is not enough that some felons somewhere could historically be executed.

3. Intoxication laws as the “closest analogue”

Although the government did not primarily rely on intoxication laws in this case (it raised Mitchell’s marijuana use late, via a Rule 28(j) letter focused on “dangerousness”), the panel independently consults prior Fifth Circuit precedent and the broader historical record, consistent with Bullock, to identify potential analogues.

Drawing heavily on Connelly and Contreras, the court reiterates:

• The Founding generation extensively regulated the carrying of weapons by persons intoxicated by alcohol.
• Those laws generally imposed temporary restrictions on carrying while intoxicated – fines, temporary disarmament, and peacekeeping measures – not permanent status-based bans on future gun possession.
• By analogy, these laws support at most “a ban on carrying firearms while an individual is presently under the influence” of intoxicants.

In Contreras, this analogy sustained § 922(g)(1) as applied to a defendant with a § 922(g)(3) predicate where the record showed that he was actually intoxicated while armed during both his predicate and subsequent conduct.

In Mitchell’s case, however, two crucial distinctions emerge:

1. No proof of contemporaneous intoxication for the predicate. The record for Mitchell’s § 922(g)(3) offense showed:
   • Regular marijuana use (three joints per day for three years);
   • A small bag of marijuana found in the vehicle with the gun; and
   • An admission that he was a “drug user.”

   Unlike Contreras, there was no testimony about the odor of marijuana, no large quantity, no paraphernalia used in real time, and no express finding that Mitchell was high or “actively under the influence” at the moment he possessed the gun.

2. No proof of contemporaneous intoxication for the § 922(g)(1) offense. At the time of his felon-in-possession charge, Mitchell again tested positive for marijuana and admitted daily use, but the record does not show that he was impaired while possessing the firearms found in the room.

The majority emphasizes the “seismic difference” between:

• An “actively intoxicated” person (the historical target of intoxication laws), and
• An “unlawful user” as defined by § 922(g)(3) and its regulations, which can encompass a person whose last use was weeks or months earlier.

Because intoxication laws historically imposed only temporary disarmament while the individual was under the influence, they cannot justify permanent disarmament under § 922(g)(1) when there is no proof of contemporaneous intoxication in either the predicate or the subsequent offense.

4. Party presentation and supplemental historical research

The majority acknowledges Bruen’s admonition that courts normally decide cases based on the historical record the parties assemble. Yet, consistent with Diaz and Contreras, it holds that appellate courts may supplement that record with additional historical research, especially where the government’s analogues are too broad.

Here, if the court limited itself strictly to the analogues the government pressed (going-armed and recidivist laws), it would already conclude that no relevant analogue exists. Turning to intoxication laws, which earlier Fifth Circuit cases had already identified, only confirms that there is no adequate historical justification for the specific, permanent disarmament imposed on Mitchell.

E. Relationship to the pending Supreme Court case in Hemani

The panel notes that the Supreme Court has granted certiorari in United States v. Hemani, which presents the question whether § 922(g)(3) violates the Second Amendment as applied.

The majority states that even if the Court ultimately disagrees with the Fifth Circuit’s approach to § 922(g)(3) in Connelly and Daniels, Mitchell’s case concerns a different statute and a different question: whether permanent disarmament under § 922(g)(1) is justified by history given this particular predicate. The government, the court stresses, has not carried its burden at Step Two, even assuming § 922(g)(3) itself survives.

F. Remedy and unresolved issues

The majority:

• Reverses the denial of the motion to dismiss.
• Vacates Mitchell’s conviction and sentence.
• Declines to remand for further factual development on intoxication, effectively holding that the existing record is insufficient, and the government does not get a “do-over.”
• Expressly does not decide:
  • Whether Mitchell could be disarmed under other subsections, such as § 922(g)(9) (domestic violence misdemeanors), or
  • Mitchell’s other constitutional arguments (vagueness, Commerce Clause, Equal Protection).

VI. The Dissent

A. Overview

Judge Haynes dissents, emphasizing two principal themes:

1. The district court did not commit reversible error under either de novo or plain-error review.
2. Under Contreras and the existing § 922(g) jurisprudence, Mitchell’s as-applied challenge should fail, or at minimum the case should be held pending the Supreme Court’s decision in Hemani.

B. Preservation and standard of review

The dissent suggests that Mitchell’s as-applied challenge was “very limited” in the district court and that most of his arguments should be subject to plain-error review. Under that more deferential standard, Judge Haynes would find no clear or obvious error.

C. Viewing Mitchell as intoxicated and dangerous

On the merits, the dissent reads Contreras to stand for a broader principle: that § 922(g)(1) may be upheld whenever the predicate § 922(g)(3) conviction involved an unlawful user of drugs who was intoxicated at the time he possessed a firearm.

Judge Haynes reasons that:

• Mitchell admitted to smoking marijuana three times a day;
• He never stopped his heavy use; and
• It is therefore “clear” he was intoxicated when he had the gun in the predicate offense and likely also intoxicated during the § 922(g)(1) conduct.

Where the majority requires affirmative evidence of contemporaneous intoxication, the dissent is willing to infer it from the intensity and continuity of Mitchell’s marijuana use.

The dissent also stresses Mitchell’s supervised-release conduct: choking, punching, pulling hair from, and threatening to “shoot and kill” the mother of his child. In Judge Haynes’s view, this conduct:

• Demonstrates a clear threat of violence akin to the “dangerous people” Rahimi and Bullock allow legislatures to disarm; and
• Is properly considered part of the “felony conviction” because supervised release is “part of the penalty for the initial offense” (citing Haymond).

Accordingly, she would treat Mitchell as both intoxicated and dangerous for Second Amendment purposes and would uphold § 922(g)(1) as applied.

D. Concern about arming felons and timing of decision

Judge Haynes also raises a broader normative and prudential concern: Bruen focused on “law-abiding” citizens; she sees no indication that the Supreme Court meant to enable convicted felons like Mitchell, whose conduct strongly suggests dangerousness, to possess firearms.

Given that Hemani is pending and may reshape the Fifth Circuit’s § 922(g)(3) jurisprudence, she suggests the panel should place Mitchell’s case in abeyance, waiting to see whether Connelly’s approach to intoxication and marijuana users remains viable.

E. Evaluation

The clash between the majority and the dissent reduces to:

• Methodological fidelity (majority): Strict adherence to Diaz’s predicate-only rule and Bruen’s historical-analogue requirement, even where it yields protection for a defendant who appears dangerous in a broader sense.
• Functional dangerousness focus (dissent): A willingness to consider broader supervised-release conduct and infer intoxication, in light of the perceived purpose of § 922(g) and the public safety risks of arming repeat offenders with violent tendencies.

VII. Clarifying Complex Concepts

A. As-applied vs. facial challenges

Facial challenge: The statute is unconstitutional in every circumstance. The challenger must show that no set of circumstances exists under which the law would be valid.

As-applied challenge: The statute may be constitutional in some cases but is unconstitutional under the challenger’s particular facts. Courts in the Fifth Circuit have increasingly turned to as-applied analysis for Second Amendment challenges, especially after Bruen, to avoid sweeping invalidation while still enforcing constitutional limits.

B. Sections 922(g)(1) and 922(g)(3)

• § 922(g)(1): Felon in possession. Makes it unlawful for a person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to possess a firearm.
• § 922(g)(3): Unlawful user of a controlled substance in possession. Prohibits firearm possession by anyone who is an “unlawful user of or addicted to any controlled substance.” Regulations and case law interpret “unlawful user” broadly to include people whose use is recent enough to indicate active ongoing use, even if they are not intoxicated at the exact moment they possess the gun.

In Mitchell, § 922(g)(3) is not the statute directly challenged; rather, it is the predicate felony that triggers § 922(g)(1)’s permanent ban.

C. De novo vs. plain-error review

De novo review means the appellate court considers the issue anew, without deference to the district court’s legal conclusions.

Plain-error review applies when an argument was not properly preserved below. The appellant must show: (1) error, (2) that is clear or obvious, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings. This is much harder to satisfy.

The majority’s decision that the as-applied challenge was preserved is significant because it allows full-scale reconsideration of the constitutional question.

D. The “rule of orderliness”

In the Fifth Circuit, a later panel cannot overrule the decision of an earlier panel. Only the Supreme Court or the en banc court may do so. This is the “rule of orderliness.”

Here, that rule forces the panel to follow Diaz’s predicate-felony-only approach to § 922(g)(1), even though out-of-circuit authorities and policy arguments might favor a more holistic “dangerousness” inquiry.

E. “Relevantly similar” historical analogues (the “how” and “why” test)

Under Bruen, courts do not need a “dead ringer” historical law, but any analogue must be “relevantly similar.” The Supreme Court has emphasized two central metrics:

• Why? What problem did the law seek to address (e.g., preventing armed terror, ensuring domestic peace, deterring violent criminals)?
• How? What kind of burden did it impose (e.g., temporary vs. permanent, broad vs. narrow, categorical vs. individualized, civil vs. criminal sanctions)?

In Mitchell, the “why/how” mismatch is key: historical intoxication laws aimed at immediate public safety violations by intoxicated carriers and imposed temporary measures, whereas § 922(g)(1) imposes a permanent, status-based prohibition disconnected from proof of intoxication at a particular time.

F. Present intoxication vs. habitual use

The Fifth Circuit draws an important line:

• Present intoxication: Being under the influence of alcohol or drugs while armed – the focus of historical intoxication laws, which justify immediate but temporary restrictions.
• Habitual use or “unlawful user” status: Using drugs regularly or recently enough to be considered an “unlawful user” under § 922(g)(3), even if sober at the time of gun possession.

Connelly, Daniels, and now Mitchell all treat habitual use alone as insufficient to justify categorical disarmament without a tight temporal link between intoxication and firearm possession.

VIII. Likely Impact and Future Litigation

A. Immediate impact within the Fifth Circuit

Within Texas, Louisiana, and Mississippi, Mitchell strengthens and clarifies several trends:

• Defendants whose only felony is a § 922(g)(3) conviction for unlawful drug use with a firearm, without proof of contemporaneous intoxication, now have a strong basis for as-applied challenges to § 922(g)(1).
• Prosecutors seeking to disarm individuals with troubling but non-felonious histories (for example, domestic abusers with misdemeanor convictions) will be under pressure to:
  • Charge under more specific subsections, such as § 922(g)(9), where available; and/or
  • Ensure that any § 922(g)(3) prosecutions are predicated on robust evidence of actual intoxication while armed, rather than mere habitual use.
• The decision accentuates the as-applied, predicate-focused nature of § 922(g)(1) litigation in the Fifth Circuit, rejecting broader “dangerousness” theories that rely on misdemeanors or uncharged acts.

B. Continued constraints on § 922(g)(3) and marijuana users

Combined with Connelly and Daniels, Mitchell sends a clear message: marijuana use, by itself and without proof of contemporaneous intoxication while armed, is not enough to sustain federal disarmament under the Second Amendment in the Fifth Circuit.

While the Supreme Court’s decision in Hemani could alter the doctrinal underpinnings of this line, Mitchell illustrates that even if § 922(g)(3) survives on its own terms, using it as a permanent-disarmament predicate under § 922(g)(1) will require a closer historical fit than the government provided here.

C. Exacerbation of the circuit split on felon disarmament

The decision deepens an existing split:

• Several circuits (Fourth, Eighth, Ninth, Tenth, Eleventh) treat § 922(g)(1) as categorically valid as applied to all felons, often on the ground that status-based disarmament itself has historical pedigree.
• Others, including the First, Third, Fifth, Sixth, and Seventh, acknowledge that some felons – especially those convicted of non-violent or regulatory offenses – may have viable as-applied Second Amendment claims.

Mitchell pushes the Fifth Circuit further into the latter camp, concretely illustrating one type of felon (a habitual marijuana user with no proven intoxication while armed and no violent felony convictions) for whom permanent § 922(g)(1) disarmament is unconstitutional.

D. Evidentiary implications: proving intoxication and predicate facts

Prosecutors and defense counsel alike will likely adjust their strategies:

• Prosecutors seeking to preserve § 922(g)(3)-based disarmament will need to build records showing:
  • Smell of intoxicants,
  • Physical signs of impairment,
  • Temporal proximity between use and gun possession, and
  • Evidence tying use to violent or threatening behavior.
• Defense counsel will focus on:
  • Challenging any inference of contemporaneous intoxication,
  • Keeping the record clear of “dangerousness” evidence that is not part of a predicate felony, and
  • Leveraging Diaz’s predicate-only rule to exclude misdemeanors and conduct on supervised release from the § 922(g)(1) analysis.

E. Potential Supreme Court intervention

With Hemani already on the Supreme Court’s docket, and with a widening divergence among circuits on how to apply Bruen to § 922(g)(1) and § 922(g)(3), Mitchell may become part of the broader set of lower-court decisions that shape the Court’s eventual approach to:

• How “dangerousness” interacts with text-and-history analysis;
• Whether and when status-based disarmament is historically justified;
• The degree to which courts may or must engage in individualized assessments of a defendant’s circumstances in Second Amendment cases.

IX. Conclusion

United States v. Mitchell stands as an important marker in post-Bruen Second Amendment law, particularly in the Fifth Circuit. It crystallizes several key propositions:

• Felons remain within “the people” protected by the Second Amendment, and their disarmament must be historically justified.
• In as-applied challenges to § 922(g)(1), the Fifth Circuit will focus on the specific predicate felony, not on a defendant’s entire background or misdemeanor history.
• Historical intoxication laws support disarming those who are presently intoxicated while armed, but do not justify permanent, status-based disarmament of mere habitual marijuana users who are not proven to be intoxicated at the time of firearm possession.
• Generic references to “dangerousness” or harsh historical punishments for superficially similar felonies are not enough; the government must demonstrate a tight conceptual fit between the old laws and the modern restriction in both why and how they regulate arms.

At a broader level, Mitchell underscores that the Second Amendment is not a “second-class right” and that courts are prepared to scrutinize even long-standing status-based prohibitions in light of text and historical tradition. The opinion is cautious not to foreclose disarmament mechanisms for genuinely dangerous individuals; rather, it insists that those mechanisms be grounded in the Constitution’s meaning as reflected in our historical legal practices.

As the Supreme Court continues to refine Second Amendment doctrine in cases like Hemani, decisions such as Mitchell will play a central role in defining how far Congress and the states may go in permanently disarming categories of persons—and what, if anything, must be proven beyond the mere fact of a prior conviction.