United States v. Simpson: Violent Predicate Felonies—including Vehicular Flight—Sustain § 922(g)(1) Against As‑Applied Second Amendment Challenges

Court: United States Court of Appeals for the Fifth Circuit

Decision Date: September 10, 2025

Panel: Chief Judge Jennifer Walker Elrod (author), Judges Duncan and Engelhardt

Docket: No. 24-50284

Introduction

This Fifth Circuit decision adds another substantive brick to the post‑Bruen framework governing the felon‑in‑possession statute, 18 U.S.C. § 922(g)(1). In United States v. Simpson, the court affirms the denial of an as‑applied Second Amendment challenge by a defendant who pleaded guilty to violating § 922(g)(1). The opinion synthesizes recent Supreme Court and Fifth Circuit authorities to reaffirm a core principle: the Second Amendment permits disarming individuals whose prior felony convictions involve violence or who otherwise pose a clear threat of physical harm. The decision also clarifies that the predicate felony need not involve misuse of a firearm; violent conduct—here, a vehicular flight from police culminating in a crash—suffices.

The case arises from an incident in Odessa, Texas, where Deimon Nolan Simpson, believing he retained rights to a residence from which he had been evicted, armed himself, attempted forced entry, and shot the new tenant’s dog. Charged as a felon in possession, Simpson moved to dismiss the indictment, arguing § 922(g)(1) is unconstitutional as applied to him. The district court denied the motion, and Simpson pleaded guilty. On appeal, he presses an as‑applied Second Amendment challenge and raises facial and Commerce Clause challenges that he concedes are foreclosed by existing Fifth Circuit precedent.

Summary of the Opinion

The Fifth Circuit affirms the denial of Simpson’s motion to dismiss and his conviction under § 922(g)(1).
Applying New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, the court holds the government satisfied its burden to show § 922(g)(1) is consistent with the Nation’s historical tradition of firearm regulation, at least as applied to individuals with violent felony predicates.
The panel emphasizes that historical “going‑armed” laws and related measures support disarmament of those who pose clear threats of violence and that permanent arms forfeiture as a penalty has a sufficiently similar burden and purpose.
Evading arrest or detention with a vehicle under Texas law qualifies as violent conduct for this purpose. The court may review the conduct underlying the predicate offense, and misuse of a firearm is not required to justify disarmament.
Simpson’s facial Second Amendment claim and Commerce Clause challenge are foreclosed by Fifth Circuit precedent (United States v. Diaz; United States v. Alcantar).

Analysis

Precedents Cited and Their Role

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
Bruen’s core contribution is methodological: when the Second Amendment’s text presumptively covers the conduct (here, possession), the burden shifts to the government to justify the regulation as consistent with the Nation’s historical tradition. Simpson’s case begins from that presumption and proceeds to the historical‑analogue inquiry, including the “why” and “how” similarity analysis the Fifth Circuit has elaborated since Bruen.
United States v. Rahimi, 602 U.S. 680 (2024).
Rahimi articulates the principle that individuals who pose a clear threat of physical violence may be disarmed. The Court also explains that modern laws may be justified by historical analogues when they impose similar restrictions to address similar problems. The Fifth Circuit relies on Rahimi both for the general threat‑based disarmament principle and the analytic lens for comparing “why” (purpose) and “how” (means/burden).
United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied, --- S. Ct. ---, 2025 WL 1727419 (2025).
Diaz supplies two key points. First, possession falls within the Second Amendment’s text, triggering the government’s burden. Second, Diaz recognizes that § 922(g)(1) can be analogized to historical regimes that imposed permanent arms forfeiture after conviction, creating a “comparable burden” when applied to individuals convicted of disqualifying offenses. Simpson’s opinion quotes Diaz’s framing of permanent arms forfeiture and its congruence with Founding‑era approaches.
United States v. Connelly, 117 F.4th 269 (5th Cir. 2024).
Connelly refines Bruen’s “relevantly similar” requirement by emphasizing common “why” (the public‑safety problem the law addresses) and “how” (the mechanism and burden). Simpson’s opinion applies this template to conclude that going‑armed laws and similar historical restrictions share both a purpose and a method sufficiently akin to § 922(g)(1) as applied to violent felons.
United States v. Rahimi (as cited in Simpson) and Fifth Circuit authorities on dangerousness and violent predicates:
- United States v. Reyes, 141 F.4th 682 (5th Cir. 2025): Recognizes a historical tradition of disarming those found to pose a credible threat to others; treats vehicular evasion as violent conduct supporting § 922(g)(1).
- United States v. Bullock, 123 F.4th 183 (5th Cir. 2024): Emphasizes legislatures’ authority to prohibit dangerous people from possessing guns, quoting then‑Judge Barrett’s dissent in Kanter v. Barr. This dangerousness principle undergirds the violent‑predicate line.
- United States v. Morgan, 147 F.4th 522 (5th Cir. 2025): Holds that Founding‑era going‑armed laws are relevant analogues to § 922(g)(1) and confirms courts may consider the conduct underlying the predicate offense in as‑applied Second Amendment analysis.
- United States v. Kimble, 142 F.4th 308 (5th Cir. 2025), and United States v. Schnur, 132 F.4th 863 (5th Cir. 2025): Both endorse affirming § 922(g)(1) convictions where the predicate felony “involves violence,” with Schnur clarifying that the predicate need not involve firearms to indicate a threat to public safety.
- United States v. Betancourt, 139 F.4th 480 (5th Cir. 2025): Another vehicular‑flight case; excessive speed and dangerous driving causing serious injuries supported rejecting an as‑applied challenge.
- United States v. Contreras, 125 F.4th 725 (5th Cir. 2025): Confirms the permissibility of looking to underlying conduct rather than a purely categorical elements‑only approach in this Second Amendment context.
Facial and Commerce Clause foreclosures:
- United States v. Diaz (facial challenges foreclosed): The panel notes Diaz forecloses facial Second Amendment challenges to § 922(g)(1) in this circuit.
- United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013): Forecloses Commerce Clause attacks on § 922(g)(1) in the Fifth Circuit.
Texas law context:
Duvall v. State, 367 S.W.3d 509 (Tex. App.—Texarkana 2012, pet. ref’d) describes the legislative purpose behind elevating vehicular evasion to a felony: discouraging forceful conflicts between police and suspects. This purpose reinforces the violent and public‑safety‑threat characterization of the predicate offense at issue.

Legal Reasoning

Triggering the Bruen inquiry: Because § 922(g)(1) regulates “possession,” and the Second Amendment protects “the right of the people to keep and bear Arms,” the statute presumptively covers protected conduct. Under Bruen (as applied via Diaz), the burden shifts to the government to demonstrate historical consistency.
Historical analogues—“why” and “how” congruence: The court looks to going‑armed laws and related Founding‑era regulations. These laws shared the “why” of mitigating demonstrated threats of physical violence and the “how” of imposing arms restrictions, including permanent arms forfeiture as a penalty following conviction. Citing Morgan and Diaz, the panel reiterates that § 922(g)(1)’s burdens are sufficiently comparable to historical mechanisms and do not go beyond what was done at the Founding in this context.
Who may be disarmed: Relying on Rahimi’s principle (those who pose clear threats can be disarmed) and Fifth Circuit precedent (Reyes, Bullock), the court articulates the operative rule: the Constitution permits disarming individuals whose predicate felony convictions involve violence or who present a credible threat to physical safety.
Scope of record—conduct underlying the predicate: The Fifth Circuit permits examination of the defendant’s underlying conduct in determining whether the predicate is “violent” for Second Amendment purposes (Morgan, Reyes, Betancourt, Contreras). This is not a categorical, elements‑only analysis; factual context matters in the as‑applied framework.
Application to Simpson:
- Simpson’s relevant predicate felony is evading arrest or detention with a vehicle under Texas Penal Code § 38.04(b). The record reflects that to avoid a traffic stop, he accelerated, lost control, and crashed into a brick wall while in possession of cocaine and a loaded revolver.
- Fifth Circuit precedent treats vehicular evasion as “violent conduct” that endangers others (Reyes; Betancourt). The Duvall rationale underscores the statute’s design to reduce forceful police‑suspect encounters.
- Accordingly, § 922(g)(1) is constitutional as applied to Simpson because his predicate involves violence and places him within the historically disarmable class.
Rejection of the “firearm‑misuse predicate” theory: Simpson argued the predicate felony must involve misuse of a firearm. The panel rejects that position, citing Schnur and Betancourt: violent conduct threatening public safety suffices, whether or not a gun was used in the predicate offense. In any event, Simpson did possess a loaded revolver during his vehicular flight.
Other challenges foreclosed: Simpson’s facial Second Amendment challenge (Diaz) and his Commerce Clause challenge (Alcantar) are foreclosed by binding circuit precedent, and the panel does not revisit them.

Impact and Implications

Consolidation of the “violent predicate” line: Simpson further entrenches the Fifth Circuit’s rule that § 922(g)(1) withstands as‑applied Second Amendment challenges where the predicate felony involves violence or demonstrates a credible threat to public safety.
Vehicular evasion expressly recognized as violent: Building on Reyes and Betancourt, Simpson confirms that evading arrest with a vehicle is “violent conduct” sufficient to justify permanent disarmament, given its inherent risk to bystanders, officers, and the public.
No firearm‑misuse requirement: The decision clarifies that a predicate need not involve firearms misuse. This broadens the set of predicates supporting § 922(g)(1) beyond gun‑related crimes to include dangerous, violent felonies generally.
Underlying conduct matters: The court’s acceptance of conduct‑based analysis (rather than a categorical elements test) invites prosecutors to develop factual records of the predicate offense’s dangerousness and permits defendants to contest whether their specific conduct was genuinely violent.
Facial challenges remain closed (in this circuit): Diaz continues to foreclose facial attacks on § 922(g)(1) in the Fifth Circuit, focusing litigation on as‑applied challenges and individualized dangerousness assessments.
Alignment with Rahimi’s threat‑based framework: The opinion operationalizes Rahimi’s teaching that those posing clear threats may be disarmed, using Founding‑era analogues (e.g., going‑armed laws) to justify modern restrictions applied to violent felons.
Open questions preserved: While Simpson reinforces disarmament for violent felons, it does not resolve whether and when non‑violent felony predicates might support or defeat § 922(g)(1) as‑applied challenges—a question that continues to percolate nationally.

Complex Concepts Simplified

As‑applied vs. facial challenge:
An as‑applied challenge contests a law’s constitutionality as applied to a specific person or set of facts. A facial challenge argues a law is unconstitutional in all or most applications. Simpson brought both; the facial claim was foreclosed by circuit precedent, so the court examined only the as‑applied claim.
Bruen’s historical‑tradition test:
If the Second Amendment’s text covers the conduct, the government must show the modern regulation accords with historical tradition. Courts look for representative historical analogues sharing a similar “why” (the problem addressed) and “how” (the method/burden).
Going‑armed laws:
Founding‑era laws that prohibited going armed “to the terror of the people” or otherwise disturbing the peace. They reflect a tradition of restricting arms possession or use by those who threatened public safety, often backed by sureties, seizures, or penalties, including forfeiture.
Permanent arms forfeiture as a penalty:
A consequence following conviction that deprives an individual of the right to possess firearms. The Fifth Circuit treats this as historically analogous to certain Founding‑era penalties and restrictions imposed on dangerous individuals.
Underlying‑conduct review vs. categorical approach:
In some federal contexts, courts assess offenses based only on statutory elements (categorical approach). In the Fifth Circuit’s post‑Bruen Second Amendment as‑applied analysis, courts may examine the defendant’s actual conduct underlying the predicate conviction to assess dangerousness and violence.
Commerce Clause foreclosed challenge:
§ 922(g)(1) requires possession “in or affecting commerce.” Alcantar forecloses arguments in the Fifth Circuit that Congress lacked Commerce Clause power to enact and apply § 922(g)(1), given its interstate nexus requirement.

Conclusion

United States v. Simpson reinforces the Fifth Circuit’s post‑Bruen, post‑Rahimi approach to § 922(g)(1): the statute is constitutional as applied to defendants with violent felony predicates because historical traditions support disarming individuals who pose clear threats of physical violence. The court’s reliance on going‑armed analogues, its acceptance of permanent arms forfeiture as a comparable historical burden, and its willingness to review the conduct underlying predicate convictions collectively fortify prosecutorial reliance on § 922(g)(1) in cases involving dangerous behavior.

Simpson also clarifies two practical points for future litigation. First, misuse of a firearm in the predicate is not necessary—violent conduct that endangers others (such as vehicular flight from police) suffices. Second, while facial challenges to § 922(g)(1) remain foreclosed in the Fifth Circuit, as‑applied claims turn on individualized facts, making the evidentiary record of the predicate offense’s dangerousness pivotal. In the broader legal landscape, the decision aligns the circuit’s felon‑in‑possession jurisprudence with Rahimi’s threat‑based disarmament principle and will likely influence how district courts evaluate as‑applied Second Amendment challenges where the predicate offense signals a concrete risk to public safety.