UNITED STATES v. GOMEZ (2025)

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

The Second Amendment protects the natural, pre-existing right of the people to keep and bear arms. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures ․ think that scope too broad.” District of Columbia v. Heller, 554 U.S. 570, 634–35, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Thus, laws regulating firearms must be consistent with the Second Amendment's text, history, and tradition. Here, the government claims that Gomez's possession of a firearm was illegal because he previously was convicted of felony marijuana possession. Seeking dismissal, Gomez asserts that the felon-in-possession statute is unconstitutional as applied to him because there is no historical tradition of disarming those convicted of marijuana possession. In an attempt to prove otherwise, the government contends that marijuana possession is analogous to three Founding-era laws that resulted in permanent disarmament—horse theft, mail theft, and forgery. But under Fifth Circuit precedent, these laws are not relevantly similar to marijuana possession. The principles underpinning them are entirely different than the principles underpinning marijuana regulations. The government has likewise failed to show another potential basis for disarmament—that Gomez poses a credible threat of violence. Nothing about his possession of a bag of marijuana nearly 12 years ago, while unarmed and cooperative with law enforcement, indicates that he poses a credible threat of violence to others. The motion to dismiss is granted.

These issues stem from Gomez's motion to dismiss the indictment. The government charged Gomez with unlawful possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). In 2014, Gomez pled guilty to a state jail felony for simple possession of over four ounces of marijuana. He has no other disqualifying convictions or relevant criminal history. The government bears the burden of demonstrating that depriving Gomez of his Second Amendment rights is “consistent with this Nation's historical tradition of firearm regulation.” United States v. Diaz, 116 F.4th 458, 464 (5th Cir. 2024) (quoting N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 17, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022)). But the best it can do is point to three property crimes—horse theft and accessory to horse theft, mail theft, and counterfeiting and forgery—and assert that they represent a historical tradition severely punishing the possession of contraband. A close reading of the laws, however, makes clear that each is materially different than marijuana possession. And the Court's own research indicates that Founding-era vice laws, such as prohibitions on gambling items, did not result in permanent disarmament. Thus, the government has failed to identify a representative historical analogue that is relevantly similar to Gomez's possession-of-marijuana conviction. Bruen, 597 U.S. at 29–30, 142 S.Ct. 2111. The government has also failed to show that Gomez “pose[s] a credible threat to the physical safety of another” based on his conviction. United States v. Rahimi, 602 U.S. 680, 702, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024). Therefore, the Court concludes that the government has not met “its heavy burden” to show that disarming Gomez “is consistent with the principles that underpin our [Nation's] regulatory tradition.” United States v. Connelly, 117 F.4th 269, 273–74 (5th Cir. 2024) (quoting Rahimi, 602 U.S. at 692, 144 S.Ct. 1889). For the reasons explained below, the Court dismisses the indictment because Section 922(g)(1) is unconstitutional as applied to Gomez, and it orders that Gomez be released from federal custody.

1. Factual and Procedural Background

A. Factual Background

In August 2013, Jaime Xavier Gomez was arrested for possession of marijuana. Dkt. No. 31 at 4. A Lubbock police officer stopped Gomez for speeding, smelled marijuana, and searched the vehicle with Gomez's consent. Dkt. No. 31-5 at 6–7. The officer located a bag containing seven ounces of marijuana in the vehicle, along with a small amount of cash, a digital scale, and empty plastic baggies. Id. at 7. Gomez did not have any weapons or other drugs in the vehicle. Id. at 6–7. Gomez was cooperative with the police; he did not attempt to fight or flee from officers. See id. Nor did he threaten, impede, or resist officers in any way. See id. Gomez eventually pled guilty to a state jail felony for possession of marijuana in an amount over four ounces but less than five pounds. Dkt. No. 31 at 4.

The punishment range for Texas state jail felonies is usually a minimum of 180 days' confinement up to a maximum of two years' confinement in a state jail facility, but the state court sentenced Gomez to only 90 days in a county jail to be served on weekends. Id.; Dkt. No. 31-6 at 2; Tex. Penal Code §§ 12.35, 12.44(a) (permitting sentences below the mandatory minimum “if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice”). Twenty years old at the time, Gomez had two prior Class-B misdemeanor convictions for possession of small amounts of marijuana and several juvenile adjudications for various non-violent property crimes. Dkt. Nos. 31 at 2–4; 31-1 at 1–17; 31-2 at 1–2; 31-3 at 4; 31-4 at 5. Thus, the 2013 offense resulted in Gomez's first and only felony conviction, and he completed his sentence without incident. See Dkt. No. 31-1 at 15.

Fast forward to June 2024. Gomez had not been convicted of, charged with, or arrested for any crime in over a decade. See id. at 14–17. By all appearances, Gomez served out his sentence for possessing over four ounces of marijuana and then lived out his 20s as a “law-abiding, responsible citizen”—raising his family and making a living in Lubbock, Texas. Heller, 554 U.S. at 635, 128 S.Ct. 2783; Dkt. Nos. 16-1 at 1–2; 31-1 at 14–17.

But in June 2024, Gomez was drinking with his wife and discussing trauma she suffered as a child at the hands of a family member. GX 10 at 22:20, 26:17, 41:10. Gomez—likely intoxicated from alcohol—became angry that this family member was not in prison after allegedly abusing his wife and others. Id. at 22:20, 41:10. Gomez then walked outside the front of his home—located inside the Lubbock city limits—with a small .22-caliber pistol. Dkt. No. 31-7 at 5, 11 (noting that the gun was a Jennings J-22 .22-caliber pistol that was not stolen). He allegedly fired five rounds up into the air before walking back inside and putting the empty gun back in a dresser drawer. Id. at 5–8. Lubbock police officers responded to a shots-fired call and located Gomez in the bathroom inside his home. Id. at 4–5. Gomez admitted that he had been drinking, and he eventually admitted that he fired the .22 pistol in the air. GX 10 at 22:20, 26:17. Gomez told officers where to locate the pistol and gave them consent to seize it. Id. at 26:17; Dkt. No. 31-7 at 7. Officers located the unloaded .22 pistol in the house. Dkt. No. 31-7 at 6–7. They did not locate any ammunition, other weapons, drugs, or drug paraphernalia, and there was no indication that Gomez had been using marijuana. See generally GX 10; Dkt. No. 31-7 at 4–8.

While on scene, dispatch informed officers that Gomez had a warrant for his arrest stemming from an unpaid speeding ticket ¹ and that he was a convicted felon. Dkt. No. 31-7 at 5. Officers arrested Gomez for possessing a firearm as a felon in violation of Texas Penal Code § 46.04, a felony offense, and for discharging a firearm in a municipality in violation of Texas Penal Code § 42.12, a misdemeanor offense. Dkt. No. 31-7 at 4. Gomez did not resist officers and was largely cooperative throughout the encounter. GX 10 at 45:15 (officer describing Gomez as “very cooperative”). Gomez was not arrested for aggravated assault or deadly conduct. See Tex. Penal Code §§ 22.02, 22.05. His shots were not directed toward any person, structure, or vehicle. GX 10 at 28:12. And there was no indication that Gomez fired the pistol in any direction except up in the air or for any reason other than to vent his frustration. Id. at 27:50. Gomez is alleged to have acted recklessly that night, not violently. See Tex. Penal Code § 42.12(a) (“A person commits an offense if the person recklessly discharges a firearm inside the corporate limits of a municipality having a population of 100,000 or more.”).

B. Procedural Background

After the Lubbock County District Attorney's Office rejected the state felon-in-possession charge, the United States Attorney's Office charged Gomez with unlawful possession of a firearm as a felon under 18 U.S.C. § 922(g)(1).² A federal grand jury indicted Gomez in August 2024. Dkt. No. 3. In October, Gomez moved to dismiss the indictment, contending that Section 922(g)(1) is facially unconstitutional under the Commerce Clause, facially unconstitutional under the Second Amendment, and unconstitutional as applied to him under the Second Amendment. Dkt. No. 26. In January 2025, the Court continued the trial and ordered the government to respond to Gomez's motion to dismiss. Dkt. Nos. 27; 28. In the Court's order, the Court asked both parties to brief several issues regarding Gomez's as-applied challenge based on the Second Amendment. Dkt. No. 28. In February, the government responded (Dkt. No. 31), and Gomez replied (Dkt. No. 32). Both parties submitted well-written, thorough, and thoughtful briefs that addressed the issues raised by the Court. See Dkt. Nos. 28; 31; 32. The motion is now ripe for decision.

2. Legal Standards

A. Second Amendment Jurisprudence

Before addressing the parties' arguments, the Court briefly surveys the “still-developing area” of Second Amendment jurisprudence, which is very much “still in the relatively early innings.” Rahimi, 602 U.S. at 736, 144 S.Ct. 1889 (Kavanaugh, J., concurring).

As always, the Court starts with the text of the Constitution. The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In Heller, the Supreme Court held that “the Second Amendment confer[s] an individual right to keep and bear arms” and “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592, 595, 128 S.Ct. 2783. The Heller Court nevertheless cautioned that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626, 128 S.Ct. 2783.

After Heller, the Fifth Circuit—along with most other circuits—adopted a two-part test to analyze laws that may implicate the Second Amendment. Hollis v. Lynch, 827 F.3d 436, 446–47 (5th Cir. 2016), abrogated by Diaz, 116 F.4th at 465. Under this test, the court first asked whether the challenged law infringed upon a right protected by the Second Amendment. Id. If it did, the court asked whether intermediate or strict scrutiny applied and then analyzed the challenged law under that level of scrutiny. Id.

This changed when the Supreme Court broke its silence on Heller in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). In Bruen, the Supreme Court held “that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.” 597 U.S. at 10, 142 S.Ct. 2111. More generally, the Bruen Court rejected the two-part test adopted by the circuit courts in favor of only the first question—whether the challenged law infringes on rights protected by the Second Amendment. Id. at 17, 142 S.Ct. 2111. If it does, “the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation.” Id. As a result, courts must now “assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding.” Id. at 26, 142 S.Ct. 2111. The Bruen Court recognized that, to do so, courts will often have to reason by analogy to determine “whether a historical regulation is a proper analogue for a distinctly modern firearm regulation.” Id. at 28–29, 142 S.Ct. 2111.

Determining whether modern and historical firearms regulations are “relevantly similar” involves examining “how and why the regulations burden a law-abiding citizen's right to armed self-defense.” Id. at 29, 142 S.Ct. 2111. Whether the modern and historical regulations “impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central’ considerations” for courts engaging in this analogical inquiry. Id. at 29, 142 S.Ct. 2111 (emphasis in original) (quoting Heller, 554 U.S. at 599, 128 S.Ct. 2783). Critically, the historical analogue need not be a perfect fit, but it also must bear more than a remote resemblance:

To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F.4th 217, 226 (3d Cir. 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

Id. at 30, 142 S.Ct. 2111 (emphasis in original).

Bruen “spurred an unprecedented number of challenges to gun laws across the country—with results varying wildly” among district and circuit courts. Tyler R. Smotherman, More Rights, More Responsibilities: A Post-Bruen Proposal for Concealed Carry Compromise, 2024 Wis. L. Rev. 343, 356 (2024) (cleaned up). One major example was the Fifth Circuit's application of Bruen's text, history, and tradition approach in United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), rev'd, 602 U.S. 680, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024). There, the Fifth Circuit found 18 U.S.C. § 922(g)(8)—a statute prohibiting the possession of firearms by those subject to domestic-violence restraining orders—facially unconstitutional. Id. at 450–51. Because the Fifth Circuit found no sufficiently similar historical analogues to the restraining order that allowed Rahimi to be disarmed, it held that Rahimi's disarmament was inconsistent with the history and tradition of the Second Amendment. Id. at 456.

Upon review, an eight-Justice majority of the Supreme Court reversed, holding that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Rahimi, 602 U.S. at 702, 144 S.Ct. 1889. In Rahimi, the Supreme Court examined Founding-era surety laws and going armed laws. Id. at 695–98, 144 S.Ct. 1889. The Court's analysis of those laws confirmed that individuals at the Founding who posed a clear threat of physical violence to others could be lawfully disarmed consistent with the Second Amendment. Id. at 698, 144 S.Ct. 1889. The Court held that Section 922(g)(8)'s “prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition the surety and going armed laws represent.” Id. The Supreme Court explained that the Fifth Circuit erred by reading Bruen to require a historical twin rather than a historical analogue. Id. at 701, 144 S.Ct. 1889. More broadly, the Supreme Court stated that “some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” Id. at 691, 144 S.Ct. 1889. In contrast, the Court clarified that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791” and reminded courts that “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition” by ascertaining the extent to which it is “relevantly similar” to permissible Founding-era restrictions. Id. at 691–92, 144 S.Ct. 1889.

It is fair to interpret Rahimi as broadening Bruen's analogical reasoning requirement, but the Rahimi Court cautioned that it has never undertaken “an exhaustive historical analysis” of the Second Amendment and that its holding was a narrow one: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Id. at 702, 144 S.Ct. 1889. The Court also expressly rejected the government's contention that it could disarm Rahimi simply because he was not “responsible,” and it stated that this line of argument did not derive from Supreme Court case law. Rahimi, 602 U.S. at 702, 144 S.Ct. 1889.

Despite Rahimi's attempt to clarify this area of the law post-Bruen, lower courts continue to struggle with its application. United States v. Patino, No. 24-CR-60-DC, ––– F.Supp.3d ––––, –––– – ––––, 2024 WL 5010146, at *4–5 (W.D. Tex. Nov. 26, 2024) (noting confusion in district courts). “But this is of little surprise considering that the justices themselves seemed to disagree on th[e] exact level of specificity” required when reasoning by analogy. Id. One of the principal points of confusion and disagreement on Second Amendment issues in the courts revolves around 18 U.S.C. § 922(g)(1).

B. 18 U.S.C. § 922(g)(1) Jurisprudence

18 U.S.C. § 922(g)(1) makes it unlawful for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to “possess in or affecting commerce, any firearm or ammunition.” The earliest version of 922(g)(1), the Federal Firearms Act of 1938, “initially covered those convicted of a limited set of violent crimes such as murder, rape, kidnapping, and burglary.” Range v. Att'y Gen. U.S., 124 F.4th 218, 229 (3d Cir. 2024) (en banc) (quoting United States v. Booker, 644 F.3d 12, 24 (1st Cir. 2011)). Today, it imposes a total, lifetime ban on the possession of firearms by anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1).

The Supreme Court stated in Heller that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626, 128 S.Ct. 2783. A plurality of the Court reiterated that point in McDonald v. City of Chicago, 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), which incorporated the Second Amendment against the states. In his concurring opinion in Bruen, Justice Kavanaugh, joined by Chief Justice Roberts, wrote that felon-in-possession prohibitions are “presumptively lawful” under Heller and McDonald. 597 U.S. at 81, 142 S.Ct. 2111 (quoting Heller, 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783). Finally, the Rahimi Court reminded us that Heller “stated that many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’ ” 602 U.S. at 699, 144 S.Ct. 1889 (quoting Heller, 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783).

Despite its repeat appearances since, “the passing reference in Heller to laws banning felons and others from possessing firearms ․ is dicta.” Rahimi, 602 U.S. 680, 773 n.7, 144 S.Ct. 1889 (Thomas, J., dissenting). And the Fifth Circuit recently held that “[t]he mentions of felons in those [Supreme Court] cases are mere dicta.” Diaz, 116 F.4th at 466. Although the Fifth Circuit agreed that courts “are generally bound by Supreme Court dicta,” it held “that dicta cannot supplant the most recent analysis set forth by the Supreme Court in Rahimi.” Id. Ultimately then—despite these references by the Supreme Court—without Supreme Court “precedent that conducts Bruen's historical inquiry into our Nation's tradition of regulating firearm possession by felons in particular,” courts must do so themselves. Id.

Post Rahimi, circuit courts around the country have disagreed about the as-applied constitutionality of Section 922(g)(1). The Fourth, Eighth, and Tenth Circuits have held Section 922(g)(1) constitutional in all of its applications. United States v. Hunt, 123 F.4th 697 (4th Cir. 2024); United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024); Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025). But other circuits have held that 922(g)(1) is or could be unconstitutional as applied to certain defendants. The Seventh Circuit recently “assume[d] for the sake of argument that there is some room for as-applied challenges” to 922(g)(1) but held that this assumption did not help an appellant who had “been convicted of 22 felonies, including aggravated battery of a peace officer.” United States v. Gay, 98 F.4th 843, 846–47 (7th Cir. 2024), reh'g denied, No. 23-2097, 2024 WL 3816648 (7th Cir. Aug. 14, 2024) (emphasis in original). The Sixth Circuit went a step further and conducted an in-depth analysis of 922(g)(1)'s as-applied constitutionality in United States v. Williams, 113 F.4th 637 (6th Cir. 2024). There, the court asked “whether an individual has met his burden to demonstrate that he is not dangerous, and thus falls outside of § 922(g)(1)'s constitutionally permissible scope.” Id. at 657. The court focused on the particular crimes underlying the felon-in-possession charge, holding that “certain categories of past convictions are highly probative of dangerousness, while others are less so.” Id. at 658. Ultimately, the Sixth Circuit determined that Williams's as-applied challenge failed because his felony convictions for aggravated robbery and attempted murder demonstrated his dangerousness. Id. at 662.

Likewise, the Third Circuit, in Range v. Attorney General United States, 124 F.4th 218 (3d Cir. 2024) (en banc), recently held that 922(g)(1) was unconstitutional as applied to a defendant who was convicted of food-stamp fraud in 1995. 124 F.4th at 222. The court rejected the government's arguments that felons are not part of “the people” under the Second Amendment, that Range's conviction was sufficiently analogous to Founding-era laws punishing forgery with death, and that all felons constitute a category of “dangerous” people who may be permanently disarmed. Id. at 228–32. After a lengthy analysis, the en banc court held that the government did not meet its burden to prove “that the principles underlying the Nation's historical tradition of firearms regulation support depriving Range of his Second Amendment right to possess a firearm.” Id. at 232.

Most importantly here, the Fifth Circuit recently addressed an as-applied challenge to 922(g)(1) in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024). There, the unanimous panel denied both facial and as-applied challenges to 922(g)(1) by a defendant who had previous convictions for vehicle theft, evading arrest in a vehicle, and possessing a firearm as a felon. 116 F.4th at 462, 472. The Diaz court first clarified that the Fifth Circuit's prior 922(g)(1) precedents were abrogated in light of Bruen and Rahimi. Id. at 465. The court next rejected the government's “familiar argument that Diaz is not among ‘the people’ protected by the Second Amendment.” Id. at 466. In contrast, the court held that the right to keep and bear arms “extends to ‘the people,’ and that ‘the term unambiguously refers to all members of the political community, not an unspecified subset.’ ” Id. (quoting Rahimi, 602 U.S. at 752, 144 S.Ct. 1889 (Thomas, J., dissenting)). The court then addressed Diaz's as-applied challenge.

The Fifth Circuit began with the premise that just because “Diaz is a felon today, then, does not necessarily mean that he would have been one in the 18th century” because “[s]imply classifying a crime as a felony does not meet the level of historical rigor required by Bruen and its progeny.” Id. at 468–69. Therefore, the court examined Diaz's criminal history, but for the purposes of assessing 922(g)(1)'s applicability to Diaz, the court considered only Diaz's prior convictions for crimes punishable by more than one year. Id. at 467. For a potential historical analogue, the court focused on horse theft. Id. at 468. Because Diaz was convicted of theft of a motor vehicle—and horse theft was punishable by death at the Founding—the court held that the government met its burden “to show that applying 18 U.S.C. § 922(g)(1) to Diaz is consistent with this Nation's historical tradition of firearm regulation.” Id. at 472. But the Diaz court expressly noted that its opinion “does not foreclose future as-applied challenges by defendants with different predicate convictions.” Id. at 470 n.4. Only because Diaz's vehicle-theft conviction had a representative historical analogue in eighteenth-century laws criminalizing horse theft—which “would have led to capital punishment or estate forfeiture” at the Founding—does permanently disarming Diaz “fit neatly” into “this Nation's historical tradition of firearm regulation.” Id. at 469–70, 472.

Diaz is, of course, binding on this Court. And it compels the Court's decision below.

3. Analysis

Prior to Diaz, this Court joined the majority of its sister courts in rejecting as-applied challenges to the constitutionality of 922(g)(1) under Fifth Circuit precedent. See, e.g., United States v. Williams, Order Denying Motion to Dismiss the Indictment at 1 (Aug. 7, 2024), Dkt. No. 32, No. 5:24-CR-012-H. The Fifth Circuit long ago underwent a thorough analysis of the Second Amendment in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), abrogated by Diaz, 116 F.4th at 465, and held that “it is clear that felons ․ may be prohibited from possessing firearms.” 270 F.3d at 261 & n.21. The Fifth Circuit reaffirmed this holding in United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), abrogated by Diaz, 116 F.4th at 465, and United States v. Everist, 368 F.3d 517 (5th Cir. 2004), abrogated by Diaz, 116 F.4th at 465. 351 F.3d at 634 (“[L]egislative prohibitions on the ownership of firearms by felons are not considered infringements on the historically understood right to bear arms.”); 368 F.3d at 519 (citing Emerson for the conclusion that it “is not inconsistent with the Second Amendment” as historically understood “to limit the ability of convicted felons to keep and possess firearms”).

But Diaz changed things. Diaz held that Bruen and Rahimi constituted an intervening change in the law that rendered prior Fifth Circuit precedents obsolete. Diaz, 116 F.4th at 465. Therefore, the Fifth Circuit abandoned its previous holdings regarding the blanket constitutionality of Section 922(g)(1). Id. In light of this intervening change in Fifth Circuit law, this Court too must reassess its previous approach to evaluating constitutional challenges to 922(g)(1). It has already done so with ease in one post-Diaz as-applied challenge, but that challenge was directly and unequivocally foreclosed by Diaz. United States v. Castillo, Order Denying Motion to Dismiss at 3–4 (Jan. 31, 2025), Dkt. No. 25, No. 5:23-CR-071-H (concluding Diaz foreclosed an as-applied challenge by a defendant with a felony theft conviction but not deciding whether “other felony convictions ․ would justify disarmament under the Second Amendment”). Following Diaz, other district courts in the Fifth Circuit also have rejected as-applied challenges to 922(g)(1), but largely in distinguishable cases involving different predicate convictions.³ This case presents a closer question and demands a more thorough analysis. Cf. Bruen, 597 U.S. at 31, 142 S.Ct. 2111 (acknowledging that “applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins”).

Gomez raises three challenges to 18 U.S.C. § 922(g)(1): a facial challenge based on the Commerce Clause, a facial challenge based on the Second Amendment, and an as-applied challenge based on the Second Amendment. Dkt. No. 26 at 2–11. The Court addresses each in turn.

A. Gomez's Commerce-Clause challenge fails because it is foreclosed by binding precedent.

Gomez asserts that Section 922(g)(1) facially violates the Commerce Clause. Id. at 2–6. Gomez's facial challenge can only succeed if he establishes that “no set of circumstances exists under which [Section 922(g)(1)] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). “The fact that [Section 922(g)(1)] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid ․” Id. As the Fifth Circuit has already acknowledged, prior precedent conclusively holds that Section 922(g)(1) does not violate the Commerce Clause. Diaz, 116 F.4th at 462 (citing United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013)). Gomez acknowledges that the Fifth Circuit has already rejected this argument. Dkt. No. 26 at 3–5 (citing United States v. Rawls, 85 F.3d 240, 243 (5th Cir. 1996)). He also acknowledges that the Fifth Circuit has not overruled such holdings. Id. at 4–6; see also United States v. Jones, 88 F.4th 571, 573–74 (5th Cir. 2023). The Court has no power to depart from the holdings of the Fifth Circuit. Alvarez v. City of Brownsville, 904 F.3d 382, 398 (5th Cir. 2018) (en banc) (Ho, J., concurring). Gomez has thus failed to show that Section 922(g)(1) facially violates the Commerce Clause.

B. Gomez's facial challenge based on the Second Amendment fails because it is foreclosed by binding precedent.

Like Gomez's Commerce-Clause argument, Fifth Circuit precedent forecloses his facial attack on Section 922(g)(1) based on the Second Amendment. See Diaz, 116 F.4th at 471–72. In Diaz, the Fifth Circuit found specific circumstances to exist under which Section 922(g)(1) was valid. See id. at 467–72. Therefore, it is impossible for Gomez to show that “no set of circumstances exists under which the statute would be valid.” Id. at 471–72 (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095). Gomez acknowledges that Diaz forecloses his facial challenge based on the Second Amendment. Dkt. No. 26 at 9; see also United States v. Cisneros, 130 F.4th 472, 476–77 (5th Cir. 2025) (holding facial challenge foreclosed by Diaz); United States v. Trevino, 125 F.4th 198, 203 (5th Cir. 2024) (same). Gomez has thus failed to show that Section 922(g)(1) facially violates the Second Amendment.

C. 18 U.S.C. § 922(g)(1) is unconstitutional as applied to Gomez.

The Court turns to the heart of the case—Gomez's as-applied challenge based on the Second Amendment. Diaz and its progeny permit the Court to consider only Gomez's predicate conviction and the facts and circumstances underlying that conviction. See infra Analysis § 3.C.i. The government pursues three lines of argument in attempting to meet its burden to justify permanently disarming Gomez.

First, “the government maintains that Section 922(g)(1) is constitutional as applied to all felons and that courts need not engage in a felony-by-felony analysis.” Dkt. No. 31 at 11. But the government concedes that this argument is foreclosed by Diaz, so the Court will not address it further. See id.; Diaz, 116 F.4th at 469.

Second, the government proffers a trio of Founding-era laws in support of its argument that “Gomez's disarmament is consistent with this Nation's history of severely punishing those convicted of possessing contraband.” Dkt. No. 31 at 12. Because the government fails to identify a “well-established and representative historical analogue” that is “relevantly similar” to Gomez's possession-of-marijuana conviction, Bruen, 597 U.S. at 29–30, 142 S.Ct. 2111, the Court concludes that the government has not met “its heavy burden” to show that permanently disarming Gomez “is consistent with the principles that underpin our [Nation's] regulatory tradition,” Connelly, 117 F.4th at 273–74.

Third, the government argues that it may disarm Gomez because he is “dangerous.” Dkt. No. 31 at 18–36. But, because Gomez's sole disqualifying conviction shows neither that he is a member of a dangerous class disarmed at the Founding nor that he “pose[s] a credible threat to the physical safety of another,” the government's dangerousness theory likewise falls short as applied to Gomez. Rahimi, 602 U.S. at 702, 144 S.Ct. 1889. Because the government has failed to meet its burden, the Court grants Gomez's motion to dismiss the indictment for the reasons explained below.

i. Precedent permits the Court to consider only Gomez's disqualifying conviction and its underlying facts and circumstances.

The Court acknowledges that “the precise framework for evaluating statutes like § 922(g)(1) post-Bruen remains in flux.” Patino, ––– F.Supp.3d at ––––, 2024 WL 5010146, at *5. The Court also acknowledges the diversity of thoughtful post-Rahimi analysis regarding 922(g)(1) from other courts across this country. See, e.g., Range, 124 F.4th 218; Williams, 113 F.4th 637; Jackson, 110 F.4th 1120. In the absence of Supreme Court guidance, many able judges currently disagree about how to analyze an as-applied challenge to the constitutionality of Section 922(g)(1). Significant disagreement exists even among judges who espouse a commitment to constitutional originalism. See, e.g., Range, 124 F.4th 218 (Hardiman, J.); Williams, 113 F.4th 637 (Thapar, J.); Jackson, 110 F.4th 1120 (Colloton, C.J.).

This Court, however, is not operating from a blank slate. Fifth Circuit precedent controls. Here—because Diaz abrogated prior Fifth Circuit decisions on 922(g)(1)—the universe of binding precedent is limited to Diaz and its progeny, which frame the Court's analysis.

As a threshold matter, when addressing as-applied challenges to 922(g)(1), Diaz limits the Court to considering only a defendant's disqualifying convictions and the facts and circumstances surrounding those convictions. The Fifth Circuit explained that, “[f]or the purposes of assessing Diaz's predicate offenses under § 922(g)(1), we may consider prior convictions that are ‘punishable by imprisonment for a term exceeding one year.’ ” 116 F.4th at 467 (quoting 18 U.S.C. § 922(g)(1)). In doing so, the Fifth Circuit resisted looking at the whole picture of Diaz's criminal background and behavior because doing so would have been inappropriate when the sole justification for his disarmament was a disqualifying conviction under Section 922(g)(1). And it resisted doing so despite the fact that the picture was fairly concerning.

After committing several misdemeanor crimes, Diaz was convicted in 2014 in Texas state court of vehicle theft and evading arrest in a vehicle—felonies for which he was sentenced to three years' imprisonment. Id. at 462. In 2018, he was convicted in Texas state court of possessing a firearm as a felon after he was caught breaking into a car while in possession of methamphetamine and a handgun. Id. The court there sentenced Diaz to another two years' imprisonment. Id. In addition to these three felony convictions, Diaz's criminal resume included misdemeanor convictions for possession of marijuana, a dismissed charge for possession of a controlled substance in 2018, a dismissed charged for possession with intent to deliver a controlled substance in 2020, and additional counts in his federal indictment for possession with intent to distribute over 50 grams of methamphetamine and possession of a firearm in furtherance of a drug-trafficking crime. Id. at 467. In short, Diaz's criminal history was significantly more extensive and serious than Gomez's criminal history is here.

But, nevertheless, the Fifth Circuit determined that Diaz's “pertinent criminal history” consisted only of his three felony convictions. Id. The court stated that his dismissed drug felonies were “not relevant.” Id. Likewise, the court did not consider Diaz's misdemeanor convictions because they did not qualify under Section 922(g)(1), as they were not crimes punishable by more than one year in prison. Id. Finally, the court rejected consideration of the other counts in Diaz's indictment because even the other count for which he was convicted (possession with intent to distribute methamphetamine) could not “serve as a predicate for his § 922(g)(1) charge in the same indictment; that charge must instead rely on previous history.” Id. Thus, the court held that the only relevant criminal history for the purposes of evaluating Diaz's as-applied challenge was his trio of prior felony convictions. Id.

In light of Diaz, the Court asked the government and Gomez to address “[w]hether and to what extent the Court can and should go beyond a categorical approach to consider Gomez's criminal history, the particular facts of his underlying felony conviction, or his recent arrest.” Dkt. No. 28 at 3. The government contends that the Court can consider not only Gomez's prior felony conviction, but also “his criminal history more broadly.” Dkt. No. 31 at 29. The government urges the Court to consider Gomez's “juvenile history and the underlying conduct of his instant arrest.” Id. at 31. The government also leans heavily on the underlying facts of Gomez's two prior misdemeanor convictions for possession of less than two ounces of marijuana. See id. at 33. In response, Gomez contends that “Diaz squarely forecloses the government's reliance upon a series of misdemeanor convictions and juvenile adjudications,” and he states that the Court may consider “the specifics of the defendant's disqualifying conviction under § 922(g)(1), [but] not [his] entire biography.” Dkt. No. 32 at 2, 26. To the extent that Gomez contends that the Court must confine itself to “the specifics of the defendant's disqualifying conviction”—including the offense conduct underlying that conviction—the Court agrees. See id. at 26.

Post-Diaz Fifth Circuit precedent supports this conclusion. First, in United States v. Bullock, 123 F.4th 183 (5th Cir. 2024), the Fifth Circuit focused on the defendant's prior felony convictions. 123 F.4th at 184–85. Two of those convictions were for aggravated assault and manslaughter. Id. Because “our country has a historical tradition of severely punishing individuals convicted of homicide, a prototypical common law felony considered ‘a very dangerous offense,’ ” the Court held that “Bullock, convicted of aggravated assault and manslaughter from his use of a firearm, may be constitutionally dispossessed of a firearm pursuant to 18 U.S.C. § 922(g)(1).” Id. (quotation omitted). In so holding, the Fifth Circuit discussed the offense conduct of those disqualifying convictions: following an altercation, Bullock “shot an unarmed bar bouncer, fired a ‘barrage of bullets’ into a nearby crowd, and killed a nineteen-year-old passerby.” Id. Because Bullock's “underlying convictions stemmed from the threat and commission of violence with a firearm,” the court held that “the justification behind [Founding-era] going armed laws, to ‘mitigate demonstrated threats of physical violence,’ supports” his disarmament.⁴ Id. (quoting Rahimi, 602 U.S. at 698, 144 S.Ct. 1889). Notably, while the Court recounted the specific conduct involved in Bullock's disqualifying conviction, it discussed neither the offense conduct of his arrest for the instant offense nor any dismissed charges, misdemeanor convictions, or other facts about Bullock's criminal history. Id.

The Fifth Circuit addressed another as-applied challenge to 922(g)(1) in United States v. Contreras, 125 F.4th 725 (5th Cir. 2025), and it applied the same approach. The court examined Contreras's criminal history and held that, although his “criminal history include[d] three offenses,” “the only pertinent offense is a user in possession of a firearm charge” because “it is the predicate offense underlying the § 922(g)(1) conviction.” Id. at 730. The court held that Contreras's two misdemeanor convictions for “possession of less than two ounces of marijuana” were “not relevant” because “they are not predicate offenses.” Id. at 730 & n.2. Immediately thereafter, the court delved into the “underlying conduct of the user in possession of a firearm conviction,” which showed that Contreras was under the influence of marijuana at the time of his arrest for the disqualifying conviction. Id. at 730, 732. Additionally, Contreras was still on supervised release for that disqualifying conviction when he was arrested for the instant offense. Id. at 730. Therefore, the court concluded that Contreras's Second Amendment challenge failed because our Nation has “a history and tradition of ․ taking away [felons'] weapons while they complete their sentence, and a history and tradition of disarming those that are intoxicated.” Id. at 732–33. The court again ignored the defendant's misdemeanor convictions and the offense conduct of his instant arrest, which involved possession of marijuana, packaging, and a scale in addition to the illegal firearm. Id. at 728. The court's holding in Contreras was based, at least in part, on the specific facts and circumstances underlying Contreras's disqualifying conviction.

Finally, and most recently, the Fifth Circuit addressed another as-applied challenge to 922(g)(1) in United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025), and the analysis is limited to the disqualifying conviction. There, the court held that, “[b]ecause the Constitution allows the government to disarm individuals who are carrying out criminal sentences, § 922(g)(1) is constitutional as applied to Giglio,” who was on supervised release at the time of his instant arrest. 126 F.4th at 1043. In doing so, the court stated that it “must factor in the particularities of an individual's circumstances when adjudicating as-applied challenges.” Id. at 1045. After expressly stating that “dismissed charges, convictions for crimes not punishable for more than a year, or convictions stemming from the same indictment” are all “pieces of information proscribed by Diaz,” the court assumed for the sake of argument that it was limited to considering only Giglio's prior felony conviction itself rather than also considering conduct underlying or related to that conviction. Id. at 1046. Because Giglio's disqualifying conviction included “just over two years of supervised release,” the court did not need to “look beyond that conviction to understand that it was constitutional for the government to regulate his possession of firearms for that period of time.” Id.

Taken together, Diaz, Bullock, Contreras, and Giglio limit this Court to considering only “the specifics of the defendant's disqualifying conviction,” which include the particular facts and circumstances of his arrest, charge, conviction, and sentence. Dkt. No. 32 at 26. To be sure, the government is correct that other circuits have taken a broader approach. Dkt. No. 31 at 29–31. In Williams, the Sixth Circuit held that, “[w]hen evaluating a defendant's dangerousness, a court may consider a defendant's entire criminal record—not just the specific felony underlying his § 922(g)(1) conviction.” 113 F.4th at 659–60; see also Range, 124 F.4th at 230–32 (focusing on the disqualifying conviction but also noting that “[t]he record contains no evidence that Range poses a physical danger to others”). But Williams is merely persuasive authority, and it directly conflicts with binding authority from the Fifth Circuit.

Moreover, the government is incorrect in contending that the “Fifth Circuit has also looked beyond a defendant's offense of conviction in assessing as-applied Second Amendment challenges.” Dkt. No. 31 at 30. The government quotes Giglio's language about “factor[ing] in the particularities of an individual's circumstances” to assert that this Court should consider Gomez's juvenile history, misdemeanor convictions, and the underlying conduct of his instant arrest. Id. at 30–36. The government overlooks Giglio's explanation that “dismissed charges, convictions for crimes not punishable for more than a year, [and] convictions stemming from the same indictment” are all “pieces of information proscribed by Diaz.” Giglio, 126 F.4th at 1046. The government misapprehends Giglio on this point.

Furthermore, the government misconstrues Contreras when it cites that case as its sole example of the Fifth Circuit “considering the underlying conduct of the instant offense.” Dkt. No. 31 at 30 (citing Contreras, 125 F.4th at 730). To the contrary, Contreras examined “the underlying conduct of the user in possession of a firearm [922(g)(3)] conviction,” which was the disqualifying conviction for the instant 922(g)(1) offense. 125 F.4th at 730. Thus, the Fifth Circuit considered the conduct associated with the predicate conviction. It did not consider the conduct associated with the instant offense.

In sum, Fifth Circuit precedent requires this Court to examine only a defendant's disqualifying convictions under Section 922(g)(1) when evaluating an as-applied Second Amendment challenge.⁵ And in light of Bullock's, Contreras's, and Giglio's consideration of the facts surrounding disqualifying convictions—and to respond to the government's arguments—this Court will also consider the particular facts and circumstances related to a prior disqualifying conviction. But doing so does not affect the result here. The question thus becomes: What are Gomez's disqualifying convictions?

a. Gomez has a single disqualifying conviction for possession of marijuana.

In total, Gomez has three criminal convictions—all for possession of marijuana.⁶ In 2010, when Gomez was 18 years old, he was arrested for possession of a marijuana blunt that weighed approximately 0.04 ounces. Dkt. Nos. 31 at 3; 31-3 at 4. He pled guilty to possession of marijuana less than two ounces—a Class-B misdemeanor—and was sentenced to one day in jail. Dkt. No. 31 at 3. At age 19, police arrested Gomez for possession of approximately 0.15 ounces of marijuana. Dkt. No. 31-4 at 5. He again pled guilty to a Class-B misdemeanor for possession of marijuana and received a 40-day sentence. Dkt. No. 16-1 at 4. But neither these misdemeanor convictions nor the offense conduct involved in them are properly considered here. See Giglio, 126 F.4th at 1046. Therefore, the Court disregards these convictions and moves to Gomez's third and final conviction.

In August 2013, when Gomez was 20 years old, a Lubbock police officer pulled him over for speeding. Dkt. No. 31-5 at 6. The officer smelled the odor of marijuana coming from Gomez's vehicle. Id. Dispatch notified the officer that Gomez had an outstanding warrant for his arrest.⁷ Id. at 7. The officer asked Gomez to step out and for consent to search the vehicle. Id. at 7. Gomez consented. Id. In the backseat of Gomez's vehicle, the officer located a lunchbox. Id. Inside the lunchbox were “a white bag that contained a green leafy substance,” as well as “a small amount of US currency, scale, and plastic baggies.” Id. The officer arrested Gomez for possession of marijuana. Id. Because the officer “had probable cause to believe the digital scale and the plastic baggies” were “used to analyze and repack illegal narcotics,” he also issued Gomez a Class-C misdemeanor citation for possession of drug paraphernalia. Id. The green leafy substance field tested positive for marijuana and had a field weight of 7.02 ounces. Id.

In June 2014, Gomez pled guilty in Texas state court to the simple possession of marijuana in an amount over four ounces but less than five pounds in violation of the Texas Controlled Substances Act (Texas Health and Safety Code § 481.121(b)(3)). Dkt. No. 31-6 at 2. This is a state jail felony punishable “by confinement in a state jail for any term of not more than two years or less than 180 days.”⁸ Tex. Penal Code § 12.35(a). Gomez did not plead guilty to delivery of marijuana or to any offense related to the production, distribution, or possession with intent to distribute a controlled substance—all of which likely would have been higher-degree felonies. Id.; see Tex. Health & Safety Code § 481.120 (criminalizing the delivery of marijuana). The state court sentenced Gomez to 90 days in county jail—to be served only on weekends—under Texas Penal Code § 12.44(a). Dkt. No. 31-6 at 2. Section 12.44(a) allows a court to punish a defendant convicted of a state jail felony “by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.” Tex. Penal Code § 12.44(a).⁹ Despite his misdemeanor-level punishment, because Gomez pled guilty to a state jail felony, he became ineligible to possess a firearm under 18 U.S.C. § 922(g)(1).

From August 2013 to June 2024, Gomez appears to have lived as a “law-abiding, responsible citizen.” Heller, 554 U.S. at 635, 128 S.Ct. 2783. He was not arrested for or charged with a single crime during this 11-year period. Dkt. No. 31-1 at 14–17. But that ended in June 2024, when Gomez was arrested for shooting his .22 pistol in the air inside city limits. Dkt. No. 31-7 at 4–5. Gomez has no other criminal history.

ii. The government fails to present relevantly similar Founding-era analogues to Gomez's conviction for simple possession of marijuana.

Acknowledging the Fifth Circuit's holding in Diaz, the government contends that “Founding-era legislatures severely punished the possession of certain contraband, and that tradition supports disarming Gomez, who was previously convicted for the unlawful possession of a controlled substance—marijuana.” Dkt. No. 31 at 12. But each of the government's three proffered historical analogues falls well short. In fact, the Fifth Circuit has rejected much closer analogues than those presented here. See infra Analysis § 3.C.ii.b. Thus, the government fails to meet its burden.

As a threshold matter, the government cannot show any Founding-era laws that prohibited the possession of drugs or intoxicants. See Dkt. Nos. 28 at 2 (asking the government to point the Court to any Founding-era laws “regulating alcohol, medications and controlled substances, or the simple possession of any type of contraband”); 31 at 13–14 (conceding that drug possession is a largely modern crime). This is unsurprising, as they likely do not exist.

This Court and others have been unable to identify any analogous Founding-era laws regulating the possession of intoxicants. See Connelly, 117 F.4th at 279–81 (“There was very little regulation of drugs (related to firearm possession or otherwise) until the late 19th century.”); Walton, 2025 WL 259370 at *7. There is certainly “no evidence of public concern for, or understanding of, marijuana” as an intoxicant until the mid-1930s. Connelly, 117 F.4th at 279. Early Americans were familiar, however, with opium. Erick Trickey, Inside the Story of America's 19th-Century Opiate Addiction, Smithsonian Mag. (Jan. 4, 2018), https://www.smithsonianmag.com/history/inside-story-americas-19th-century-opiate-addiction-180967673/. The use of opium in the Americas dates back to at least the American Revolution, during which “the Continental and British armies used opium to treat sick and wounded soldiers.” Id. Benjamin Franklin took opium to cope with pain from bladder stones, and a “doctor gave laudanum, a tincture of opium mixed with alcohol, to Alexander Hamilton after his fatal duel with Aaron Burr.” Id. Many average citizens in antebellum America likewise used—and often abused—opiates, but opiate sales, use, and possession were virtually unrestricted until well over a century after the Founding. Elizabeth Kelly Gray, Habit Forming: Drug Addiction in America 1776–1914 19–43 (2023); see also Connelly, 117 F.4th at 279 (“American society gradually realized the social effects of narcotics in the late 1800s and began regulating them at the turn of the century.”). Additionally, although “early Americans, including the Founders, consumed copious amounts of alcohol,” there were virtually no laws banning the possession of alcohol by the average adult citizen. Connelly, 117 F.4th at 279. In short, early American legislatures understood the intoxicating properties—and significant potential for abuse—of alcohol and opium, but drug abuse was treated as a public-health or personal problem, not a crime. See Trickey, supra; Gray, supra, at 19–43. As such, there were virtually no Founding-era laws banning the use or possession of intoxicants by average American citizens. See Trickey, supra; Gray, supra, at 19–43; Connelly, 117 F.4th at 279–81.

But the government need not identify a “historical twin” regulating alcohol, marijuana, opium, or other drugs at the Founding. Bruen, 597 U.S. at 30, 142 S.Ct. 2111. A proper “historical analogue” under Bruen might be a set of “well-established” Founding-era laws punishing the simple possession of any deleterious item whatsoever with death, life imprisonment, or estate forfeiture. See id. Thus, the Court asked the parties to point the Court to any Founding-era laws regulating “the simple possession of any type of contraband (as opposed to possession plus trafficking, theft, fraud, or some other crime).” Dkt. No. 28 at 2.

In response, the government contends that there is a historical tradition of severely punishing the possession of contraband. Dkt. No. 31 at 13. In support of this asserted tradition, the government proffers three historical analogues: horse theft or accessory to horse theft, mail theft, and counterfeiting or forgery. Id. at 12. That is already “a problem for the government. Bruen doubted that three colonial-era laws could suffice to show a tradition.” Connelly, 117 F.4th at 281 (emphasis removed) (quoting Bruen, 597 U.S. at 46, 142 S.Ct. 2111). Setting that potential infirmity aside, the government's proposed examples “miss[ ] the mark by a wide margin.” Id. Far from the “well-established and representative historical analogue[s]” required by Bruen, these laws are a far cry from possession of marijuana. Bruen, 597 U.S. at 30, 142 S.Ct. 2111. The Court addresses each in turn.

a. The government's strongest proposed analogue—a Virginia law severely punishing accessories to horse theft—fails to establish a Founding-era regulatory tradition prohibiting the possession of contraband.

The government first cites a 1748 Virginia law that “criminalized the knowing receipt of a stolen horse.” Dkt. No. 31 at 12 (citing 6 William Waller Henning, The Statutes at Large; Being a Collection of All the Laws of Virginia from the First Session of the Legislature, in the Year 1619, 130 (1819)). Section XIV of that law—the section cited by the government and most relevant here—states the following:

That if any person or persons shall receive, or buy, any horse that shall be feloniously taken, or stolen, from any other person, knowing the same to be stolen; or shall harbour or conceal any horse-stealer, knowing him, her, or them to be so, such person or persons shall be taken and received as accessary or accessaries to the said felony, and ․ shall incur and suffer the pain of death, as a felon convict.10

Henning, supra, at 130.

“[W]hen a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’ ” Rahimi, 602 U.S. at 692, 144 S.Ct. 1889 (quoting Bruen, 597 U.S. at 30, 142 S.Ct. 2111). While “it need not be a ‘dead ringer’ or a ‘historical twin,’ ” the modern law still “must comport with the principles underlying the Second Amendment.” Id. (quoting Bruen, 597 U.S. at 30, 142 S.Ct. 2111). Likewise, the historical precursor from the Founding era must be a “well-established and representative historical analogue” that is “relevantly similar” to the modern regulation. Bruen, 597 U.S. at 29–30, 142 S.Ct. 2111.

Criminalizing horse theft and accessory to horse theft is not relevantly similar to criminalizing the possession of marijuana. In Diaz, where the defendant had a disqualifying conviction for vehicle theft, a Founding-era law punishing horse theft with death was a representative historical analogue. After all, horses were the vehicles of the eighteenth century. Here, where Gomez has a disqualifying conviction for possession of marijuana, it is a mismatch because “the principles that underpin” the two laws are entirely different. Rahimi, 602 U.S. at 692, 144 S.Ct. 1889. The eighteenth-century law punished horse thieves and accessories to horse theft with death; the modern law punishes possession of an intoxicant with up to two years in jail. The eighteenth-century law was intended to deter and punish horse theft—a serious crime at common law and at the Founding. See Diaz, 116 F.4th at 468–69. The modern law was intended to deter and punish drug use—a social phenomenon treated as a personal or medical problem at the Founding. See Trickey, supra; Gray, supra, at 19–43. Because the laws are different in both purpose and effect, the government's proffered analogue does not convince the Court that lifetime disarmament for possessing marijuana “is consistent with the principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692, 144 S.Ct. 1889.

Recall that “[t]he challenged and historical laws ․ must both (1) address a comparable problem (the ‘why’) and (2) place a comparable burden on the right holder (the ‘how’).” United States v. Daniels, 124 F.4th 967, 973 (5th Cir. 2025). The Fifth Circuit recently noted in the 922(g)(3) context that some Founding-era laws “pass[ed] the ‘why’ but not the ‘how’ test” because they “address[ed] a comparable problem—preventing intoxicated individuals from carrying weapons—but they d[id] not impose a comparable burden on the right holder” because they imposed relatively minor punishments. Connelly, 117 F.4th at 281–82. Here, we have the opposite problem.

“The how” of the government's proffered analogue is close enough because buying or receiving a stolen horse was punishable by death, and the Fifth Circuit has held that death includes disarmament. See Diaz, 116 F.4th at 469–70 (reasoning that “if capital punishment was permissible to respond to theft, then the lesser restriction of permanent disarmament that § 922(g)(1) imposes is also permissible”); but see Range, 124 F.4th at 230–31 (holding that Rahimi did not “bless[ ] disarmament as a lesser punishment generally”). Because the government's proffered analogues do impose a more severe penalty than permanent disarmament, they are “relevantly similar” in terms of “how” they burden the right to keep and bear arms. Bruen, 597 U.S. at 29, 142 S.Ct. 2111.

But “the why” is another matter. The horse-theft statute did not “address a comparable problem” to the one addressed by Texas's marijuana-possession statute. Daniels, 124 F.4th at 973. The 1748 Virginia law was enacted “for the more effectual prevention of horse-stealing.” Henning, supra, at 124. The modern Texas Controlled Substances Act was enacted to deter and punish drug abuse. Cf. Tex. Health & Safety Code § 481.035(a) (finding that Schedule I substances, including marijuana, have “a high potential for abuse”). To be sure, “a challenged regulation need not be an updated model of a historical counterpart,” and historical regulations reveal principles, not exact molds. Rahimi, 602 U.S. at 739–40, 144 S.Ct. 1889 (Barrett, J., concurring). But these laws have entirely different purposes. The government asks the Court to construe history and precedent so broadly as to place trading in stolen horses and possessing marijuana under the same umbrella of “participating in the marketplace of contraband.” Dkt. No. 31 at 13. Were the Court to do so, it would not be “[p]ulling principle from precedent, whether case law or history”; it would be pulling principle from thin air. Rahimi, 602 U.S. at 740, 144 S.Ct. 1889 (Barrett, J., concurring). Although “reasonable minds sometimes disagree about how broad or narrow [a] controlling principle should be,” to discern a Founding-era tradition supporting the permanent disarmament of marijuana possessors from the government's horse-theft law would be “to read a principle at such a high level of generality that it waters down the right” to keep and bear arms. Id. This the Court cannot do.

Moreover, the government's attempt to characterize the 1748 Virginia law as “punish[ing] the possession of certain contraband” is itself a stretch. See Dkt. No. 31 at 12. Assuming without deciding that a representative historical analogue in this case would be a well-established law imposing severe punishment for the mere possession of any item, the government has not provided one here. The government laments that “Gomez may state an obvious objection” to the existence of a Founding-era crime analogous to his conviction—“that Founding-era generations did not punish the possession of marijuana with death.” Id. at 13. The government responds with “an obvious answer: marijuana was not used as an intoxicant in colonial America at the Founding.” Id. But the problem for the government is not only that Founding-era legislatures did not punish the possession of marijuana with death or estate forfeiture; rather, as best the Court can tell from its research, they did not punish the simple possession of anything with death or estate forfeiture. See infra Analysis § 3.C.ii.d.

The government's attempt here to transform a horse-theft law into a contraband law goes too far. Any thorough and disinterested reading of the 1748 Virginia statute shows that it was intended to criminalize, deter, and punish horse theft—not to criminalize the mere possession of contraband. To be sure—although not illegal in and of itself like marijuana is today—a horse could be construed as contraband by virtue of it being stolen. But, even assuming without deciding that the 1748 law criminalized the trafficking of stolen horses, it did not criminalize simple possession of a stolen horse. The law prohibited, at most, “receiv[ing], or buy[ing], any horse that shall be feloniously taken, or stolen, from any other person, knowing the same to be stolen.” Henning, supra, at 130. “Receive” meant “to take or obtain from another,” or even specifically “to take stolen goods from a thief, knowing them to be stolen.” Receive, Webster's Dictionary (1828). “Possess,” in contrast, meant “to hold” or “to have.” Possess, Webster's Dictionary (1828). Today, “possession” in this context means to have “actual care, custody, control, or management” of something. Tex. Health & Safety Code § 481.002(38). “Receive” and “buy” are transitory verbs limited in temporal scope. The actions have a definitive beginning and end. One receives or buys an item when he obtains it from another. He does not receive or buy the item in perpetuity for as long as he possesses it. In contrast, one could “possess” a stolen horse in perpetuity without ever having received or bought it “from any other person” under the statute. And in context, the meaning of “receive” is closer to “buy” than to “possess.” Henning, supra, at 130 (making it a crime to “receive, or buy, any horse”); see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012) (explaining that when verbs “are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar”).

For example, suppose that a stolen horse escapes from the original thief to make his way home. A third party finds the horse wandering loose in the forest and takes possession of the horse. That third party—even were he to know that the horse was stolen—did not “receive, or buy, [the] horse ․ from any other person.” Henning, supra, at 130. He merely found the horse and now possesses it. He could not be punished under the 1748 statute. In contrast, if that third party stumbled upon a marijuana plant and subsequently had custody and control over it, without ever having bought or received it from a person, he could be punished for possession of marijuana. See Tex. Health & Safety Code §§ 481.002(38), 481.121. As such, receiving or buying a stolen horse is a materially different action than possessing a stolen horse.

Additionally, the 1748 law required one to receive the horse “knowing the same to be stolen,” whereas there is no requirement to know that marijuana is illegal for one to violate Texas Health & Safety Code § 481.121. Section 481.121's only mens rea requirement is to “knowingly or intentionally possess” the marijuana, not to know that doing so is illegal. Even construing “receive” to mean the same as “possess,” if one intentionally possessed a stolen horse without knowing that it was stolen, the horse would not be contraband under the 1748 law as applied to that person. The stolen horse was contraband only insofar as the possessor comprehended its illegal nature. This is another way in which the “the why” of these laws is different. The 1748 law was intended to punish knowingly facilitating and being an accessory to horse theft, not merely possessing a stolen horse. In contrast, Section 481.121 is intended to punish the mere possession of a contraband item deemed undesirable in and of itself.

In sum, the 1748 horse-theft law and the modern possession-of-marijuana law are not relevantly similar because they neither address comparable problems nor criminalize the same actions. Therefore—even were a single colonial-era law enough to establish a tradition, see Bruen, 597 U.S. at 46, 142 S.Ct. 2111—the one proffered by the government is too different in purpose and principle to do so here.

b. Fifth Circuit case law supports the Court's conclusion.

Fifth Circuit precedent strongly supports—if not compels—the Court's conclusion. The Fifth Circuit has repeatedly rejected even tighter analogical fits in other Second Amendment cases. For example, the Fifth Circuit recently held that Founding-era laws banning firing weapons while drinking were not close enough to the modern law banning unlawful users of controlled substances from possessing firearms. Connelly, 117 F.4th at 280–81. As a result, the Fifth Circuit held 18 U.S.C. § 922(g)(3) unconstitutional as applied to a defendant. Id. at 282–83. Given that closer analogues have failed to clear the Fifth Circuit's hurdle, the proposed analogy here—horse theft as marijuana possession—must likewise fail.

The Fifth Circuit has engaged in several analogical inquiries under the Second Amendment since Rahimi and rejected several as-applied challenges. Of course, in Diaz and Bullock, the court easily located historical analogues because the defendants had convictions for vehicle theft and manslaughter—nearly identical to the common law crimes of horse theft and homicide that were punishable by death at the Founding. Diaz, 116 F.4th at 468–69; Bullock, 123 F.4th at 184–85. Likewise, in Giglio—where the defendant possessed a firearm while still on supervised release—the court noted that many Founding-era forfeiture laws temporarily disarmed and limited the rights of citizens convicted of crimes while those citizens were serving out their sentences, not only while they were imprisoned. Giglio, 126 F.4th at 1043–44. And in United States v. Quiroz, 125 F.4th 713 (5th Cir. 2025), the Fifth Circuit held that 18 U.S.C. § 922(n)—which prohibits the receipt of a firearm by those under felony indictment—does not violate the Second Amendment because Founding-era governments were “empowered to detain criminal defendants charged with serious crimes while they awaited trial,” which necessarily “restricted their access to weapons.” 125 F.4th at 718, 724. This was yet another close historical and analogical fit.

But, the Fifth Circuit has shown itself unwilling to write the government a “regulatory blank check” when the government fails to show a truly “representative historical analogue.” Bruen, 597 U.S. at 30, 142 S.Ct. 2111. For example, in Contreras—where the defendant had a conviction for possessing a firearm as an unlawful user of marijuana—the government attempted to make exactly the argument that it makes in this case. Contreras, 125 F.4th at 730. In addition to murder, burglary, arson, rape, and other violent crimes, the government attempted to analogize to several Founding-era laws criminalizing forgery, counterfeiting, piracy, embezzlement, and theft. Id. at 731 (citing, among others, An Act for the Punishment of Certain Crimes Against the United States, 1 Stat. 112-15 (1790)). These are essentially the same types of laws on which the government relies in this case, and they failed due to overbreadth: “The Government's argument is too broad” because the “Bruen inquiry, as articulated in Diaz, requires ․ showing that ․ someone convicted of an analogous felony was punished in a comparable way.” Id. Referring to some of the same statutes that the government cites here, Contreras held that “[n]one of the specific felonies the Government point[ed] to [we]re analogous to the facts [t]here, namely ‘an unlawful user of a controlled substance’ ‘knowingly possess[ing] a firearm.’ ” Id. (quoting 18 U.S.C. § 922(g)(3)).¹¹

The Fifth Circuit rejected even tighter analogical fits in Reese v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 127 F.4th 583 (5th Cir. 2025). There, the Fifth Circuit addressed a Second Amendment challenge to 18 U.S.C. §§ 922(b)(1) and (c)(1), which prohibit licensed dealers from selling handguns to adults under the age of 21. 127 F.4th at 586. The court held that these provisions are unconstitutional under the Second Amendment because “[t]he government's proposed founding-era analogues [did] not meet its burden to establish a historical tradition of firearm restrictions imposed on eighteen-to-twenty-year-old Americans.” Id. at 586, 599. In an attempt to show otherwise, the government first pointed to early nineteenth-century laws prohibiting firearm possession by students at the University of Georgia and the University of Virginia. Id. at 596. The government also relied on “Pennsylvania's 1755 Militia Act, which permitted individuals under twenty-one to enroll in the militia only with the prior consent of their parents,” and to six different state laws enacted in the early nineteenth century that “required parents to furnish firearms for young men's militia duty.” Id. at 597. Finally, the government cited a South Carolina law prohibiting “infants, i.e., legal minors under the age of 21” from serving as constables. Id. All of these proposed analogues failed.

Applying Rahimi's analogical framework, Reese held that the university regulations were “too different in both the ‘how’ and the ‘why’ to establish a compelling historical analogue” because they applied to all students regardless of age, and “the ‘principle’ behind the resolutions was to effectuate student discipline and academic rigor, not to disarm all minors.” Id. at 596–97 (quoting Rahimi, 602 U.S. at 692, 144 S.Ct. 1889). The court also dismissed the 1755 Pennsylvania law as “not relevant” because a new militia statute was passed in 1777, and it dismissed the constable restriction for young adults as not “relevantly similar” to “curtailing ․ their ability to acquire a handgun.” Id. at 597. Finally, the court flipped on its head the government's proposed analogue regarding parental provision of arms to young adults, reasoning that “requirements that parents furnish firearms for their sons' militia service do not mean that the military-age young men lacked the right to keep and bear (or obtain) such arms themselves.” Id. Rejecting all the government's proffered analogues, Reese held that the government “presented scant evidence that eighteen-to-twenty-year-olds' firearm rights during the founding-era were restricted in a similar manner to the contemporary [law].” Reese, 127 F.4th at 600.

Next, the Fifth Circuit also rejected closer analogues in United States v. Connelly, 117 F.4th 269 (5th Cir. 2024), and United States v. Daniels, 124 F.4th 967 (5th Cir. 2025). In Connelly, the court held that 18 U.S.C. § 922(g)(3)—which prohibits “an unlawful user” of any controlled substance from possessing a firearm—was unconstitutional as applied to “a non-violent, marijuana smoking gunowner.” 117 F.4th at 272. There the government presented historical analogues of laws disarming the mentally ill, laws disarming dangerous individuals, and laws regarding intoxication. Id. at 275. The Fifth Circuit rejected them all. Id. at 274.

Regarding Founding-era laws that disarmed and institutionalized the severely mentally ill, the court held that “the why” of those laws is not relevantly similar to Section 922(g)(3) because “[r]epeat marijuana users, like repeat alcohol users, are of sound mind upon regaining sobriety, whereas those adjudged severely mentally ill often require extensive treatment ․ before they can be said to be of sound mind again.” Id. at 276–77. The court thus rejected this analogy and held that Connelly is more “like a repeat alcohol user between periods of intoxication, whom the Founders would not disarm.” Id. at 277 (emphasis in original). Rejecting the government's dangerousness argument, the court held that the groups considered dangerous at the Founding were not disarmed for reasons relevantly similar to 922(g)(3). Id. at 278. Because the government could identify “no class of persons at the Founding who were ‘dangerous’ for reasons comparable to marijuana users,” the court rejected this as a sufficient analogue. Id.

Regarding intoxication laws—in addition to post-Reconstruction laws of “limited utility” due to their temporal distance from the Founding—the government proposed several Founding-era laws as analogues to 922(g)(3). Id. at 280–81. The government pointed to a Virginia law banning “shoot[ing] and gunns at drinkeing,” but the court rejected it as a mismatch for Section 922(g)(3) because “Virginia passed this statute explicitly as a gunpowder preservation measure (which was at a premium), and because ill-timed gunshots could be mistaken as a signal that Natives were attacking.” Id. at 280. The court held that the Virginia law was “enacted for a different purpose than was § 922(g)(3)” and that “it did not ban gun carry or even possession—it only prevented colonists from misusing the guns they did have while they were drinking.” Id. (emphasis in original). The government also pointed to a New York law that prohibited shooting during New Year's celebrations even though it “was passed for a similar purpose as § 922(g)(3)” (to prevent the “great Damages” done by people “intoxicated with Liquor”) because “[i]t applied only three days out of the year, only prevented firing guns (not possessing or carrying them), and applied only to those under the influence, not habitual drinkers.” Id. The government also pointed to laws requiring militia members who reported for duty drunk to be disarmed, but the court rejected this analogy as well because “restrictions on the liberties of service members tell us little about the limits acceptable for citizens at large.” Id. at 280–81.

Once again, the Fifth Circuit held that—given “the extremely high level of alcohol consumption in the early Republic”—the government's “handful of generally inapposite laws” fails to demonstrate a “relevant Founding-era tradition or regulation disarming ordinary citizens who consumed alcohol.” Id. at 281. The court explained that the history and tradition presented by the government “support, at most, a ban on carrying firearms while an individual is presently under the influence” and that “[b]y regulating [Connelly] based on habitual or occasional drug use, § 922(g)(3) imposes a far greater burden on her Second Amendment rights than our history and tradition of firearms regulation can support.” Id. at 282 (emphasis in original). Therefore, the court held the statute unconstitutional as applied to Connelly. Id.

In Daniels, the Fifth Circuit addressed the same question, but in an even “closer case” because “the facts at trial seemed to reveal a defendant who was often intoxicated while transporting weapons.” 124 F.4th at 975. Nevertheless, the court applied its holdings in Connelly, again rejected all three “buckets of historical analogues” offered by the government, and held Section 922(g)(3) unconstitutional as applied to Daniels. Id. at 973.¹²

Finally, in Contreras, the Fifth Circuit rejected similar Founding-era laws as “too broad” and “not enough” when the government tried to compare them to a modern-day conviction for being a marijuana user in possession of a firearm. 125 F.4th at 730–31. The Court sees no reason why the government's proffered analogues should fare any better when compared to a modern-day conviction for simple possession of marijuana.

Collectively, this precedent makes clear that the Fifth Circuit requires historical analogues to be a fairly close fit to a modern counterpart. If a law preventing eighteen-to-twenty-year-olds from buying handguns from licensed dealers (but allowing parents to gift them handguns) is not “consistent with the principles that underpin” a law requiring parents to furnish arms to eighteen-to-twenty-year-olds, it is hard to see how a law prohibiting the possession of marijuana is consistent with the principles of a law prohibiting the purchase or receipt of stolen horses. Rahimi, 602 U.S. at 692, 144 S.Ct. 1889. And if a law preventing unlawful drug users or addicts from possessing guns is not “consistent with the principles that underpin” Founding-era laws banning firing guns while drinking alcohol, then the government's argument in this case must likewise fail. Knowingly buying or receiving a stolen horse is simply not “relevantly similar” to possessing marijuana, especially when viewed through the lens of the above precedent.

c. The government's other two proposed analogues—laws severely punishing mail theft and forgery—fare even worse than the first.

In addition to horse theft, the government also relies on Founding-era statutes criminalizing “mail theft” and the “making or trading of counterfeit or forged securities.” Dkt. No. 31 at 12 (citing An Act to Establish the Post-Office and Post Roads within the United States, 1 Stat. 232, 237 (1792) [hereinafter 1792 Post-Office Statute]; An Act for the Punishment of Certain Crimes Against the United States, 1 Stat. 112, 115 (1790) [hereinafter 1790 Crime Statute]). Neither contains any historical analogue relevantly similar to the possession of marijuana.

A 1792 federal law establishing the U.S. Post Office made it a crime for “any person, employed in any of the departments of the general post-office” to “detain, delay, or open, any letter, packet, bag or mail of letters, with which he shall be entrusted.” 1792 Post-Office Statute, 1 Stat. at 238. It also made it a crime for a postal employee to “secrete, embezzle, or destroy any letter or packet.” Id. at 236. A violation was generally punishable by a fine “not exceeding three hundred dollars” and imprisonment “not exceeding six months” unless the package contained certain stocks, promissory notes, bank notes, or other financial documents—in which case the penalty was death. Id. This law helped to ensure the integrity of the postal service by deterring and punishing crimes by employees. It also punished embezzlement or destruction, not possession.

Aside from punishing an entirely different crime for an entirely different purpose than the Texas Controlled Substances Act, this law only applied to postal employees. Therefore, “this comparison misses the mark.” Connelly, 117 F.4th at 281 (rejecting laws applicable only to militia members as not analogous to laws applicable to “citizens at large”); see also Reese, 127 F.4th at 596–97 (rejecting laws applicable to university students as not analogous to a law applicable to eighteen-to-twenty-year-olds because they “applied to all enrolled students regardless of age”). Additionally, the 1792 postal statute punished “rob[bing] any carrier of the mail” or “steal[ing] such mail” by death. 1792 Post-Office Statute, 1 Stat. at 237. While this portion of the act could apply to anyone, it addresses theft. It has nothing to do with the trafficking of contraband, let alone the mere possession of contraband.

Next, a federal criminal statute enacted in 1790 made it a felony to “falsely make, alter, forge, or counterfeit ․ any certificate, indent or other public security of the United States” or offer as payment any such forged document, “with intention to defraud any person knowing the same to be false, altered, forged, or counterfeited.” 1790 Crime Statute, 1 Stat. at 115. This is the same statute that the en banc Third Circuit rejected as a representative analogue for food-stamp fraud. Range, 124 F.4th at 230–31. This law does not punish the possession of anything, let alone a controlled substance. Neither does this law appear to have anything to do with regulating intoxicants, possessing contraband, or even trafficking in contraband. It criminalizes forgery and counterfeiting. As such, it is a total mismatch for the modern regulation at issue here.

As explained above, a single Founding-era law prohibiting the receipt of a stolen horse is not enough to show a regulatory tradition severely punishing the possession of contraband. See supra Analysis §§ 3.C.ii.a.; 3.C.ii.b. These laws, which criminalize mail theft and forgery, are even weaker and further afield. Thus, they fail for all the reasons already outlined above. See supra Analysis §§ 3.C.ii.a.; 3.C.ii.b.

d. The Court's own research uncovered no relevantly similar Founding-era analogues for modern laws prohibiting the possession of marijuana.

The government's failure to identify a relevantly similar historical analogue is fatal to its case under Diaz. After all, it is the government that bears the burden to demonstrate that permanently disarming someone convicted of possession of over four ounces of marijuana “is relevantly similar to laws our tradition is understood to permit, and the government meets its burden by finding and explicating historical precursors supporting the challenged law's constitutionality.” Daniels, 124 F.4th at 972 (internal quotation marks omitted). Because “our adversarial system of adjudication” adheres to “the principle of party presentation,” courts are entitled to decides cases—including Second Amendment cases—“based on the historical record compiled by the parties.” Bruen, 597 U.S. at 25 & n.6, 142 S.Ct. 2111. The government has not identified any representative historical analogues here. So the Court “must hold the government to its heavy burden, as the Second Amendment ‘is not a second-class right.’ ” Daniels, 124 F.4th at 973 (quoting Bruen, 597 U.S. at 70, 142 S.Ct. 2111).

The Court has no duty to sift through the historical record in search of evidence supporting the government's position. Cf. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (noting that district courts have no “duty to sift through the record in search of evidence” to support a party's position). But, following the Fifth Circuit's lead in other cases, the Court conducted its own supplemental research. See Diaz, 116 F.4th at 468 (explaining the findings of the court's “own research”); Contreras, 125 F.4th at 731–33 (rejecting the government's proposed analogues, analyzing a different historical tradition, and affirming on an alternate basis).

The Court found no representative analogues from colonial America or the early Republic for permanently disarming Gomez based on his possession-of-marijuana conviction. At least one other district court in the Fifth Circuit recently researched the issue and also came up empty. Walton, 2025 WL 259370 at *7 (“[T]he Court cannot find, and the Government did not provide, any historical analogues for punishing someone who possesses contraband they themselves may wish to consume.”). However—while none were dispositive—the Court summarizes its findings below because even the discovered laws, some of which are arguably closer analogues in this case, still weigh in the defendant's favor.

The Court assumed without deciding that Founding-era laws severely punishing the simple possession of any sort of item in order to promote public health or morality might be relevantly similar to modern laws punishing the simple possession of marijuana. Having already tentatively concluded that no historical twin exists for modern marijuana laws, the Court searched for historical analogues in Founding-era laws related to the possession of any type of contraband. There were not many.

There were a few laws in colonial America and the early Republic that restricted the possession of unlicensed alcohol, blasphemous literature, uninspected tobacco, or gambling implements. But none of these laws is a representative historical analogue for 922(g)(1) as applied to Gomez based on his underlying conviction for possessing marijuana. First, the Court found no statutes outlawing drug possession, see supra Analysis § 3.C.ii, and very few relevantly similar laws regulating the possession of alcohol, see Connelly, 117 F.4th at 280–81. Several colonies and states prohibited the sale or possession of alcohol in unlicensed tavern houses or as applied to Native Americans.¹³ But the penalty for violating these laws was generally only a modest fine, and, in any case, licensing of taverns and “restrictions on the liberties of [Native Americans] tell us little about the limits acceptable for citizens at large.” Connelly, 117 F.4th at 281. The Court located only one law of general application that prohibited the importation, possession, and sale of certain types of liquor. See Acts of Apr. 3, 1735, An Act to Prevent the Importation and Use of Rum and Brandies in the Province of Georgia, reprinted in 1 The Colonial Records of the State of Georgia 44–45 (Allen D. Candler ed., 1904). This law, enacted in 1735 Georgia, mandated that any person found with rum or brandy “in [his] hands or Custody” could be “publickly Staved and Split.” Id. But this law was an anomaly. It was repealed only seven years later in 1742. Id. at 55; Paul Aaron & David Musto, Temperance and Prohibition in America: A Historical Overview, Nat'l Library of Med., https://perma.cc/3JQP-2P88 (last visited Mar. 21, 2025) (explaining that aside from Georgia's initial ban on certain liquors, colonial-era alcohol laws primarily sanctioned drunkenness, regulated taverns, and restricted serving alcohol to certain groups).

Second, pornographic images and literature—to the extent they existed—were not widely regulated as contraband in colonial America. See Jordan Carroll, Obscenity Trials and American Literature, Oxford Univ. Press (Feb. 23, 2021) (“[O]bscenity law was not strongly or consistently enforced throughout the United States until the Comstock Act in 1873.”). There were, however, a few seventeenth-century laws prohibiting the possession of literature deemed blasphemous or heretical. For example, to prevent “the destruction of the souls of men,” a 1654 Massachusetts law banned the possession of Quaker books and books by certain authors, but the penalty imposed was only a ten-pound fine for each book possessed (in addition to burning the book). Acts Against Heresy 1646–62, ch. 51, reprinted in The Charters and General Laws of the Colony and Province of Massachusetts Bay, supra, at 120–23. Likewise, a 1659 Virginia law criminalized the possession of books containing the tenets of the Quakers. Acts of Mar. 13, 1659–60, Act 6, reprinted in William Waller Henning, supra, at 533. Still, laws criminalizing the possession of contraband books were few and far between, imposed minor penalties, and largely did not continue into the late eighteenth century.

Third, several Founding-era laws regulated the possession of improperly inspected or untaxed consumable goods, such as tobacco. But most of these laws were merely economic or shipping regulations that did not criminalize simple possession of the regulated items by the general public.¹⁴ One exception was a 1791 Georgia law, which ordered that any person found with a counterfeited or altered tobacco-inspector stamp “in his custody or possession” be punished by “six months imprisonment, stand four hours in the pillory, and pay a fine of one hundred pounds.” An Act for Regulating the Inspection of Tobacco, reprinted in Robert Watkins & George Watkins, supra, at 448–49. Notably, this is the only Founding-era law the Court found that punished the simple possession of any item with a term of imprisonment.

Fourth—and most relevantly—many Founding-era laws prohibited certain citizens from possessing dice, cards, billiards tables, and other gaming and gambling implements with the aim of preventing “vice, idleness, and immorality.” Acts of May 14, 1762, ch. 378, reprinted in 1 Laws of Commonwealth of Pennsylvania 246. At least four states in the early Republic prohibited the possession of gambling devices by tavern owners and inn keepers.¹⁵ But, aside from merely imposing fines between 40 shillings and 20 pounds,¹⁶ these laws applied to only a small subset of individuals, and thus say little about the restrictions acceptable for the general citizenry at the time. See Connelly, 117 F.4th at 281.

On the other hand, at least four states in the early Republic—Connecticut, Georgia, Pennsylvania, and Massachusetts—banned the possession of gambling-related items by the general public. Connecticut fined a person forty shillings for “every pack of cards by him sold, offered to sale or found in his possession.” An Act Against Gaming, reprinted in Acts and Laws of the State of Connecticut, In America, supra, at 89. Georgia imposed a one-hundred-pound fine for “every person keeping a billiard, with intent to game.” An Act to Prevent Gaming, and Horse racing, reprinted in Robert Watkins & George Watkins, supra, at 201. Pennsylvania imposed a five-hundred-pound fine for any person who “publicly or privately set up, erect[ed], ma[d]e, exercise[d], ke[pt] open, shew[ed] or expose[d] to be played at, drawn at, or thrown at, [any lottery, play, or gambling device] or ․ procure[d] the same to be done, either by dice, lots, cards, balls, tickets, or any other numbers or figures.” Act of May 14, 1762, ch. 378, reprinted in 1 Laws of Commonwealth of Pennsylvania, supra, at 246. Finally, Massachusetts imposed a fine of five pounds for any person with playing cards or dice “found in his or their custody,” and it imposed a fine of two hundred pounds for any person that “publickly or privately exercise[d], ke[pt] open, show[ed] or expose[d] to be played at, drawn at, or thrown at, or shall draw, play or throw at, any such lottery, or any other lottery, either by dice, lots, cards, [or] balls.” Acts Against Gaming, Dancing, & c. in Houses of Entertainment 1670, ch. 50, reprinted in The Charters and General Laws of the Colony and Province of Massachusetts Bay, supra, at 119; An Act for the Suppressing of Lotteries 1719, ch. 22, reprinted in The Charters and General Laws of the Colony and Province of Massachusetts Bay, supra, at 751.

This small collection of colonial-era laws prohibiting the possession of gambling- and gaming-related contraband is the closest the Court found to showing a well-established tradition of punishing the simple possession of contraband at the Founding. See Bruen, 597 U.S. at 30, 46, 142 S.Ct. 2111. These laws appear to be a near-enough match for “the why” of laws restricting the possession of marijuana because the “principles that underpin” the modern and historical laws are similar—to suppress and criminalize the possession of items that “tend to manifest corruption of youth, ․ prove introductive of vice, idleness and immorality,” and act “against the common good, welfare and peace of [the community].” Rahimi, 602 U.S. at 692, 144 S.Ct. 1889; Acts of May 14, 1762, ch. 378, reprinted in 1 Laws of Commonwealth of Pennsylvania, supra, at 246. But each of these Founding-era vice laws imposed only a modest monetary fine as punishment for possessing the prohibited item. Even a large fine is a relatively minor punishment—far from death, estate forfeiture, or lifetime disarmament. See Diaz, 116 F.4th at 469–70. Thus, because they are so different in terms of “the how,” these Founding-era vice laws are not “relevantly similar” to modern laws imposing lifetime disarmament for the simple possession of marijuana. As such, even after undertaking additional research, the Court's conclusion remains unchanged—there are no well-established and representative historical analogues before the Court that are sufficient to support the government's attempt to prosecute Gomez under 922(g)(1).

* * *

The government's proffered analogues all fail under Diaz and its progeny. The types of laws proposed by the government are recycled examples that the government has used in district courts across the Fifth Circuit—with some success ¹⁷ —but they all fail upon closer inspection. Each of these laws criminalized a different action and was enacted for a different purpose than Section 481.121(b)(3) of the Texas Controlled Substances Act. They are not relevantly similar to laws prohibiting the simple possession of marijuana. Further, the Fifth Circuit has repeatedly rejected Founding-era analogues far closer to a modern regulation than the government's analogues are here. While there may be undiscovered historical analogues closer to possession of marijuana, the government has provided none. Finding the “trio of laws cited by the government [that] were aimed at fraudsters and thieves,” Dkt. No. 32 at 5, to be “relevantly similar” to a conviction for simple possession of marijuana would be to write the government the “regulatory blank check” it seeks to permanently disarm any person convicted of any crime that a modern legislature may someday decide to call a felony, Bruen, 597 U.S. at 29–30, 142 S.Ct. 2111. “Such a shifting benchmark should not define the limits of the Second Amendment, without further consideration of how that right was understood when it was first recognized.” Diaz, 116 F.4th at 469. To place possessing marijuana in the same tent as stealing mail, forging a document, or buying a stolen horse would be far “too broad,” Contreras, 125 F.4th at 731, and akin “to read[ing] a principle at such a high level of generality that it waters down the right” to keep and bear arms. Rahimi, 602 U.S. at 740, 144 S.Ct. 1889 (Barrett, J., concurring). The three laws put forth by the government here “are not enough.” Contreras, 125 F.4th at 731. And the Court found no Founding-era laws that fared any better. See supra Analysis § 3.C.ii.d. Therefore—under Supreme Court and Fifth Circuit precedent—the government has failed to meet “its heavy burden” to show that disarming Gomez “is consistent with the principles that underpin our [Nation's] regulatory tradition.” Connelly, 117 F.4th at 273–74 (quoting Rahimi, 602 U.S. at 692, 144 S.Ct. 1889).

iii. The government's dangerousness arguments fail as applied to Gomez.

Having determined that the government failed to show a representative historical analogue for Gomez's possession-of-marijuana conviction, the Court now turns to the government's other primary line of argument—that there is a longstanding tradition allowing “the government [to] disarm dangerous felons” in general. Dkt. No. 31 at 1, 18–36. Analyzing dangerousness was not the analytical approach taken by the Diaz court, and it does not appear to be the Fifth Circuit's focus in addressing recent as-applied challenges to 922(g)(1). But neither is this dangerousness argument directly foreclosed in the Fifth Circuit or explicitly contradicted by Diaz and its progeny. See, e.g., Daniels, 124 F.4th at 976–77 (stating that the government remains free “to reformulate its dangerousness argument in the context of different as-applied challenges moving forward”). Other district courts in the Fifth Circuit seem to agree. See, e.g., Hicks, 2025 WL 847874 at *5–6 (concluding that the defendant's “predicate convictions for aggravated assault ․ and assault involving family violence [by strangulation] ․ establish that he poses a clear threat to the safety of others”). And a strong focus on dangerousness analysis has found favor in other circuits. See, e.g., Williams, 113 F.4th 637. Therefore, assuming without deciding that the government's line of argument based on dangerousness is permissible in the Fifth Circuit, the Court addresses it below. Ultimately—while the government makes a well-reasoned argument—its dangerousness theory as applied to Gomez ultimately fails under Supreme Court and Fifth Circuit precedent.

a. Precedent requires a comparable prohibited class at the Founding or a finding, based on the disqualifying conviction, that the defendant poses a credible threat to the physical safety of others.

Recent Supreme Court precedent provides helpful guidance as to when a person may be disarmed due to dangerousness without violating the Second Amendment. In Rahimi, the Supreme Court unequivocally “reject[ed] the Government's contention that Rahimi may be disarmed simply because he is not ‘responsible,’ ” holding that “[i]t is unclear what such a rule would entail” and that this line of argument does not derive from Supreme Court precedent. Rahimi, 602 U.S. at 701, 144 S.Ct. 1889. The government strongly advanced this line of argument, arguing that “[h]istory and tradition establish legislatures' authority to disarm dangerous or irresponsible categories of persons” and that “Congress may disarm a dangerous category of persons even if particular members of the category would not necessarily be dangerous.” See Brief for the United States at 15–17, United States v. Rahimi, Case No. 22-915 (Aug. 14, 2023). But the Supreme Court declined to adopt these theories and, at least in part, explicitly rejected them.

In his Rahimi dissent, Justice Thomas pointed out that not a single member of the Court adopted the government's theory that Congress may disarm anyone deemed not “responsible” or “law-abiding.” Rahimi, 602 U.S. at 772–73, 144 S.Ct. 1889 (Thomas, J., dissenting). “Indeed, the Court dispose[d] of it in half a page” because this “argument lacks any basis in [Supreme Court] precedents and would eviscerate the Second Amendment altogether.” Id. at 773, 144 S.Ct. 1889. Justice Thomas went on to describe how the government “invented” another position at oral argument—that “responsible” really means “not dangerous.” Id. But “the [Supreme] Court has never adopted anything akin to the Government's test. In reality, the ‘law-abiding, dangerous citizen’ test is the Government's own creation, designed to justify every one of its existing regulations,” and it “has no doctrinal or constitutional mooring.” Id. at 773–74, 144 S.Ct. 1889.

Likewise, Justice Gorsuch clarified in his concurrence that Rahimi does not authorize the government to “disarm a person without a judicial finding that he poses a ‘credible threat’ to another's physical safety” or “resolve whether the government may disarm an individual permanently.” Id. at 713, 144 S.Ct. 1889 (Gorsuch, J., concurring). Nor does Rahimi “purport to approve in advance other laws denying firearms on a categorical basis to any group of persons” the government deems irresponsible. Id. (citing Rahimi, 602 U.S. at 772, 144 S.Ct. 1889 (Thomas, J., dissenting)). Justice Gorsuch emphasized that “after carefully consulting” the “text, history, and tradition,” the Rahimi Court “conclude[d] only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Id. at 714, 144 S.Ct. 1889 (emphasis in original) (internal quotation marks omitted).

Rahimi being, at best, indeterminant on the government's dangerousness theory, the Court turns to the Fifth Circuit. The Diaz court focused its analysis almost entirely on the fit between the modern predicate conviction and the historical analogue. While Diaz does not foreclose a dangerousness theory, it also does not support it. Diaz is simply silent on the issue.

Connelly examined the history and tradition of laws disarming “dangerous” individuals more closely. 117 F.4th at 277–79. The Fifth Circuit recognized that certain classes of people were disarmed due to dangerousness at the Founding, but it also focused on the reasons those classes were disarmed. Id. The court held that “not one piece of historical evidence suggests that, at the time they ratified the Second Amendment, the Founders authorized Congress to disarm anyone it deemed dangerous.” Id. (emphasis in original). Rather, some Founding-era laws allowed the government to disarm two discrete groups of people—political dissidents and religious minorities. Id. at 277–78. Thus, the court acknowledged that “Founding-era governments took guns away from those perceived to be dangerous.” Id. at 278. Still, the court asked: “[W]hy were the groups disarmed at the Founding considered dangerous and therefore disarmed, and is that ‘why’ ‘relevantly similar’ to § 922(g)(3)?” Id. The court ultimately rejected the government's analogy based on dangerousness because the government could identify “no class of persons at the Founding who were ‘dangerous’ for reasons comparable to marijuana users.” Id.

Similarly, in Reese, the Fifth Circuit noted the government's argument that legislatures have broad “authority to restrict arms-bearing by ‘categories of persons’ that ‘present a special danger of misuse.’ ” Reese, 127 F.4th at 597 (quoting Rahimi, 602 U.S. at 698, 144 S.Ct. 1889). The Fifth Circuit dismissed the government's contention as “meritless” because it “misquotes Rahimi, which added that those laws ‘appl[y] only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another.” Id. at 597–98 (emphasis in original) (quoting Rahimi, 602 U.S. at 699, 144 S.Ct. 1889).

The takeaway from this line of cases is that—in the Fifth Circuit—the government may succeed in upholding 922(g)(1) as applied to a particular defendant based on a dangerousness theory in either of two circumstances: (1) where the government can show that the defendant's disqualifying conviction makes him analogous to a member of a comparable class of persons disarmed at the Founding because they were deemed dangerous for similar reasons, or (2) where the government can show that one of the defendant's disqualifying convictions shows that he presently poses a credible threat to the physical safety of another. And there is nothing novel about this conclusion. As this Court recently recognized before Diaz, if it is true that Founding-era legislatures “disqualified categories of people from the right to bear arms,” such as felons, “only when they judged that doing so was necessary to protect the public safety,” it follows that “permanently disqualifying [felons] from possessing a gun violates the Second Amendment” absent “evidence that [they] either belong[ ] to a dangerous category or bear[ ] individual markers of risk.” United States v. Williams, Order Denying Motion to Dismiss the Indictment at 11 n.1 (Aug. 7, 2024), Dkt. No. 32, No. 5:24-CR-012-H (quoting Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting)). Relatedly, the lesson from Diaz, Contreras, and Giglio is that—at least in 922(g)(1) challenges—courts are limited to considering only the defendant's disqualifying convictions in making those determinations. See supra Analysis § 3.C.i.

b. Gomez's marijuana conviction does not make him analogous to a member of a dangerous class disarmed at the Founding.

With this context in mind, the question is how it applies to Gomez. The government's argument is essentially that “Gomez's (1) serious juvenile history; (2) participation in the illegal drug trade as an adult—for which he has earned multiple possession of marijuana convictions; and (3) firing off his illegally possessed firearm demonstrate[ ] his dangerousness, independently establishing that Section 922(g)(1) is constitutional as to him.” Dkt. No. 31 at 19. In support, the government cites the broad notions in Connelly and Bullock that “Founding-era governments took guns away from those perceived to be dangerous.” Id. (quoting Connelly, 117 F.4th at 278); see also Bullock, 123 F.4th at 185 (“The historical record demonstrates ‘that legislatures have the power to prohibit dangerous people from possessing guns.’ ”) (quoting Kanter, 919 F.3d at 451 (Barrett, J., dissenting)). While true, the government seeks to apply these holdings here too broadly and largely out of context.

First, as discussed above, the Court must limit itself to considering only Gomez's state jail felony conviction for possession of marijuana and the underlying facts of that conviction. So Gomez's juvenile history, two misdemeanor convictions, and reckless behavior unrelated to drug use or possession are all irrelevant to the analysis under 922(g)(1).

Second, the government has not shown that Gomez—someone convicted of possessing a moderate amount of marijuana 11 years ago—is a member of any category of people disarmed at the Founding based on their dangerousness. Legislatures may indeed have the power to disarm specific categories of dangerous people, but only as applied to comparable categories of people who were deemed dangerous for similar reasons at the Founding—and after an individualized finding that the defendant presents a credible physical threat. See Reese, 127 F.4th at 597–98. “The government identifies no class of persons at the Founding who were ‘dangerous’ for reasons comparable to marijuana users” or possessors. Connelly, 117 F.4th at 278. Gomez—as a convicted marijuana possessor, admitted marijuana user, or even alleged marijuana dealer—is not part of “a class of political traitors” or “religious dissenters who were seen as potential insurrectionists.” Id.; see Dkt. No. 16-1 at 3 (stating that Gomez “smokes a marijuana cigarette daily”).

The government does point to many nineteenth-century laws that “disarmed a range of people deemed unfit to carry firearms, including those below certain ages, those of unsound mind, vagrants, and intoxicated persons.” Dkt. No. 31 at 26–27. But none of these laws was enacted any earlier than 1856, with the great majority being enacted in the 1880s and 1890s. Id. This is too late to provide insight on the original public meaning of the Second Amendment. See Bruen, 597 U.S. at 34, 36, 142 S.Ct. 2111 (“[W]hen it comes to interpreting the Constitution, not all history is created equal ․ [B]ecause post-Civil War discussions of the right to keep and bear arms took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.” (quotation omitted)). In any case, only the category of “intoxicated persons” is possibly comparable to marijuana possessors. See Connelly, 117 F.4th at 276–78. The government lists only three such laws—enacted in 1867, 1878, and 1879—all of which merely “barred citizens from carrying guns while drunk.” Id. at 281 (emphasis in original). And two of these laws were precisely the same laws already considered and rejected as not enough in Connelly. Compare id. (rejecting 1867 Kan. Sess. Laws 25, Mo. Rev. Stat. § 1274 (1879), 1883 Wis. Sess. Laws 290, and 1909 Idaho Sess. Laws 6 as failing to establish a tradition sufficient to uphold Section 922(g)(3)), with Dkt. No. 31 at 27 n.16 (citing the same Kansas and Missouri laws for the proposition that legislatures disarmed dangerous classes like intoxicated persons). “Offering three laws passed scores of years post-Ratification ․ misses the mark by a wide margin.” Connelly, 117 F.4th at 281. Therefore, the government has not shown that Gomez is a member of any category of people disarmed at the Founding due to their dangerousness.¹⁸

Relatedly, the government claims that its “sources suggest that the Government may lawfully disarm citizens who have been convicted of a dangerous offense.” Dkt. No. 31 at 28. At least in cases where the “dangerous offense” would not have made the defendant a felon at the Founding, that is a dubious assertion under Diaz. See 116 F.4th at 470. But assuming without deciding that the government is correct, it still must demonstrate that Gomez has “been convicted of a dangerous offense.” Dkt. No. 31 at 28. He has not. Gomez's 11-year-old state jail felony conviction for simple possession of marijuana is neither a conviction for an inherently dangerous offense nor does it show that Gomez poses a credible threat of physical violence towards others. See Diaz, 116 F.4th at 471 n.5 (holding that Diaz's underlying convictions—vehicle theft, evading arrest in a vehicle, and possession of a firearm as a felon—“do not inherently involve a threat of violence”).

Having determined that Gomez cannot be disarmed under a dangerousness theory due to his membership in any class of dangerous people, the Courts further considers the government's dangerousness theory as applied to Gomez individually.

c. Gomez's marijuana conviction does not show that he poses a credible threat to the physical safety of others.

The next question is whether Gomez's conviction itself, or the facts and circumstances surrounding that conviction, show that he presents a credible threat of violence or to the physical safety of others. They do not.

To start, Gomez's conviction—standing alone—does not justify his permanent disarmament because it does not show that he presents a credible threat to the physical safety of others. Setting aside that Rahimi addressed only temporary disarmament, the facts here are much less concerning than those in Rahimi. See Rahimi, 602 U.S. at 713–14, 144 S.Ct. 1889 (Gorsuch, J., concurring) (“We do not resolve whether the government may disarm an individual permanently.”).¹⁹ Gomez was arrested for possession of marijuana over 11 years ago. Dkt. No. 31-1 at 14. His conviction is for simple possession, and the facts surrounding the arrest and conviction do not indicate a credible threat of violence, as in Rahimi.

Second, we know from Gomez's conviction that the Texas state court sentenced him to a misdemeanor penalty of 90 days' jail confinement on weekends only—well below the usual 180-day minimum for state jail felonies in Texas. Dkt. No. 31-6 at 2; Tex. Penal Code § 12.35(a). According to Texas law, the state court could do so only “after considering the gravity and circumstances of the felony committed” and “find[ing] that such punishment would best serve the ends of justice.” Tex. Penal Code § 12.44(a). If the state court thought Gomez was dangerous, it seems unlikely that it would have sentenced him to weekends in the county jail—allowing him to remain largely free in the local community—rather than to a continuous sentence in a state jail facility.

Third, Gomez was convicted of simple possession of over four ounces of marijuana—not one of Texas's several more serious drug offenses. Dkt. No. 31-6 at 2; Tex. Penal Code § 12.35(a). Gomez was never charged with or convicted of any crime related to production, distribution, conspiracy, or possession with the intent to distribute.²⁰ His was an arrest, charge, and conviction for mere possession of marijuana—and an amount of marijuana that was just a few ounces over the misdemeanor threshold. See Tex. Health & Safety Code § 481.121(b)(2) (making it “a Class A misdemeanor if the amount of marihuana possessed is four ounces or less”). He did not have, for example, a truck full of marijuana bales. As such, Gomez likely is distinguishable from other defendants convicted of simple possession of much larger quantities of marijuana or other illegal drugs—quantities that might imply a higher level of dangerousness.

Additionally, Gomez is wholly distinguishable from other defendants who have disqualifying convictions for production, distribution, or possession with intent to distribute controlled substances—disqualifying convictions that could imply a much higher level of dangerousness than simple possession. See Walton, 2025 WL 259370 at *6–7 (recognizing that “violence often follows drug and drug traffickers,” but emphasizing that the court focused its analysis on distribution and possession-with-intent-to-distribute convictions because it could not find “any historical analogues for punishing someone who possesses contraband they themselves may wish to consume” and because “distribution and intent to distribute convictions” are the convictions “that implicate the safety and wellbeing of those in Defendant's community”).

Finally, while obvious, it bears repeating that Gomez was convicted of possessing only one particular controlled substance—marijuana. As such, the Court is not addressing defendants convicted of possessing even small amounts of more addictive and deadly drugs like fentanyl, heroin, and methamphetamine—the effects of which, in and of themselves, might imply a much higher level of dangerousness by those who use and possess them than by those who use and possess only marijuana. As it stands, Gomez has only a decade-old conviction for possessing a bag of marijuana. That is not enough to show that he “pose[s] a credible threat to the physical safety of another.” Rahimi, 602 U.S. at 702, 144 S.Ct. 1889.

d. The facts and circumstances of Gomez's underlying arrest also fail to demonstrate that he poses a credible threat to the physical safety of others.

Fifth Circuit precedent appears to allow courts to consider conduct related to a defendant's disqualifying conviction when addressing as-applied challenges to 922(g)(1). See, e.g., Bullock, 123 F.4th at 184–85; Contreras, 125 F.4th at 730–32; Giglio, 126 F.4th at 1045. But, moving beyond the face of Gomez's predicate conviction, even the particular facts and circumstances related to his arrest do not show that he poses a credible threat to the safety of others. A closer look at these facts proves no windfall for the government's dangerousness argument because the facts cut both ways.

As described in the police report (Dkt. No. 31-5) and discussed above, in August 2013, a Lubbock police officer stopped Gomez for speeding and making a wide right turn. Dkt. No. 31-5 at 6. Gomez was seated in the driver's seat, and another 20-year-old male was seated in the front passenger seat. Id. at 3. The officer smelled the odor of marijuana coming from the vehicle. Id. Gomez gave the officer consent to search the vehicle, and the officer did so. Id. at 7. In the back seat, on the passenger side, the officer located a blue Dallas Cowboys lunch pail. Id. Inside the lunch pail, the officer located a white bag with “a green leafy substance” along with “a small amount of U.S. currency, scale, and plastic baggies.” Id. Gomez stated that his passenger was not involved and claimed responsibility for the marijuana. Id. Nothing else of note was found in the vehicle. Id. The officer placed Gomez under arrest and transported him to the Lubbock County Jail without incident. Id. There is no indication that Gomez resisted, threatened, or was otherwise uncooperative with the officer. Id. The green leafy substance field-tested positive for marijuana and had a field weight of 7.02 ounces, meaning that its true weight at the laboratory was likely less. Id. In his report, the officer also stated that he had probable cause to believe the digital scale and plastic baggies were “used to analyze and repack illegal narcotics.” Id. Therefore, the officer also issued Gomez a Class-C misdemeanor citation for possession of drug paraphernalia. There is no indication in the police report that Gomez had recently used marijuana or that he was intoxicated at the time of the traffic stop. Id.

Taken together, these facts do not show that Gomez poses a credible threat to the physical safety of others—especially almost 12 years later. Gomez was stopped for a minor traffic violation. He was cooperative with the officer and gave consent to search his vehicle. He took responsibility for possessing the marijuana. And it was a single bag containing a modest amount of marijuana. Gomez did not threaten, fight, resist, impede, or attempt to flee from the officer. See United States v. Williams, Order Denying Motion to Dismiss the Indictment at 13–14 (Aug. 7, 2024), Dkt. No. 32, No. 5:24-CR-012-H (finding the defendant dangerous due to his state jail felony conviction for making a terroristic threat against a peace officer—specifically, saying he would “put a bullet” in the officers while physically resisting arrest). Nor did Gomez have a gun or any other weapons in the vehicle.²¹ He was not intoxicated or driving under the influence of marijuana or alcohol. In short, this was the routine traffic stop and arrest of a cooperative suspect for a non-violent crime. Based on this information, there is no indication that Gomez posed a credible threat to the safety of anyone in August 2013, let alone nearly 12 years later.

On the other hand, the government argues that “Gomez's adult felony conviction leaves no doubt that he is dangerous ․ The circumstances surrounding each of Gomez's arrests, moreover, suggest that he was a dealer.” Dkt. No. 31 at 33 (emphasis in original). The government then goes on to cite out-of-circuit cases to contend that “the very nature of the illegal drug trade—involving large sums of money, valuable contraband, and the absence of legal dispute resolution mechanisms—creates strong incentives for participants to arm themselves.” Id. at 33–34 (quoting United States v. Grizzard, No. CR-24-197, 2024 WL 4859104, at *6 (W.D. Okla. Nov. 21, 2024)). But the facts here do not establish that Gomez was dealing marijuana in 2013, even if they may “suggest” it. Nor do the facts show that he was a danger to others.

Turning to the remainder of Gomez's history, Gomez's first two arrests were for possessing miniscule amounts of marijuana—0.04 ounces and 0.15 ounces—when he was 18 to 19 years old, and they resulted in misdemeanor convictions. As such, they are irrelevant here. See Contreras, 125 F.4th at 730 & n.2 (“The other two offenses were possession of less than two ounces of marijuana, which are misdemeanor offenses and not relevant.”). Curiously—while urging the Court to consider Gomez's entire “criminal history, which necessarily includes his juvenile history and the underlying conduct of his instant arrest”—the government simultaneously contends that “the amount of time between Gomez's prior conviction and his instant offense is irrelevant.” Dkt. No. 31 at 31, 39. Either Gomez's entire history, both positive and negative, is relevant or it is not. The government cannot have it both ways. For the Court, Gomez's long period of clean criminal history—which spans his entire 20s, when young men are often most criminally active—does weigh heavily against finding Gomez dangerous based on his conviction. Cf. USSG § 5H1.1, p.s. (“The age-crime curve, one of the most consistent findings in criminology, demonstrates that criminal behavior tends to decrease with age.”).

As for Gomez's state jail felony arrest, Gomez did not “arm [himself]” or possess “large sums of money.” Grizzard, 2024 WL 4859104, at *6. He had no weapons and only a small amount of cash in the vehicle. However—in addition to possessing more than a typical user's amount of marijuana—we also know that Gomez possessed a scale, additional baggies, and a small amount of cash. The Court agrees with the government that these facts alone could “suggest” that Gomez was dealing marijuana. See Dkt. No. 31 at 33, 37. But a suggestion is a far cry from proof, let alone a conviction.

First, the paraphernalia may be indicative of low-level marijuana dealing, but it is not conclusive. Heavy users of marijuana often employ small food scales and baggies to measure it for their own use. See What Does Cannabis Look Like? A Visual Guide To Cannabis Quantities & Measurements, Leafly (Mar. 29, 2023), https://perma.cc/U3TT-J9M3. The officer stated that he believed the scale and bags were “used to analyze and repack” the marijuana, not to distribute or sell the marijuana. Dkt. No. 31-5 at 7. And the baggies were empty. The marijuana was not divided and pre-packaged in the individual baggies—let alone in amounts typical of marijuana sales (e.g., 1/8 ounce or 1/2 ounce). See supra What Does Cannabis Look Like?. Therefore, the officer simply added a citation for possession of paraphernalia. This is a Class-C misdemeanor citation frequently issued to personal drug users when they are caught in possession of pipes, grinders, syringes, spoons, straws, or other items used to consume drugs—not necessarily to manufacture or distribute drugs.

Second, heavy users of marijuana often possess moderate amounts of the drug at one time. Seven ounces of marijuana is enough to fill a large plastic bag and to roll about 98 blunts. See, e.g., Helena Miles, Weed Measurements: How Much is a Pound, Ounce, QP, Eight & Half?, GreenCamp (July 27, 2024), https://perma.cc/FLE5-JMWT. Because marijuana stays fresh for up to two years, if Gomez was smoking one blunt per day in 2013, having a three-month supply could be consistent with merely familial or heavy personal use. See Dkt. No. 16-1 at 3 (stating that Gomez generally “smokes a marijuana cigarette daily”). Additionally, one could also plausibly “suggest” that some of the seven ounces of marijuana belonged to the 20-year-old male passenger, who was, after all, riding in a vehicle that smelled like marijuana and seated directly in front of where officers located the marijuana. See Dkt. No. 31-5 at 6–7 (noting that officers found the marijuana on the passenger side of the vehicle). In sum—even though these facts could suggest that Gomez was dealing small amounts of marijuana in 2013—they are not conclusive, and they do not lead the Court to conclude that Gomez poses a credible threat to the physical safety of others.

More importantly to the Court's analysis, Gomez was never accused of, arrested for, charged with, or convicted of any production- or distribution-related offense. Gomez never admitted to dealing marijuana, and the officer does not state in his report that he had probable cause to believe Gomez was dealing marijuana. See id. Nor did the allegations escalate at the indictment stage; the grand jury only found that Gomez “knowingly possess[ed] a usable quantity of marihuana in an amount of five pounds or less but more than four ounces.” Dkt. No. 31-6 at 1. Most importantly, at Gomez's sentencing hearing—where there was an adversarial process and a court made findings on the record—Gomez only pled guilty to the elements of simple possession of marijuana over four ounces. See Dkt. No. 31-6 at 2. And the state court only found Gomez guilty of possessing over four ounces of marijuana on one day in August 2013. Nothing about this finding or conviction shows that Gomez is a member of a dangerous class disarmed at the Founding or that he poses a credible threat to the physical safety of others.

* * *

In sum, it is not enough to “suggest” that Gomez was a small-time marijuana dealer 12 years ago and extrapolate from that allegation that he therefore “ ‘pose[s] a significant threat of danger’ and put[s] people's ‘safety at risk.’ ” Dkt. No. 31 at 34 (quoting Williams, 113 F.4th at 659). Likewise—especially without showing a comparable class at the Founding, see Connelly, 117 F.4th at 277–78—it is not enough to equate Gomez with a broad category of persons that “present[s] a special danger of misuse” of firearms. Reese, 127 F.4th at 597 (quoting Rahimi, 602 U.S. at 698, 144 S.Ct. 1889). This analysis applies “only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another.” Id. (emphasis in original) (quoting Rahimi, 602 U.S. at 699, 144 S.Ct. 1889). To uphold 922(g)(1) as applied to Gomez based on a dangerousness theory, the government's evidence must be more particularized and individualized to Gomez. Here, “[a]s applied, the government has not shown how [Gomez's] marijuana use [or possession] predisposes [him] to armed conflict or that [he] has a history of drug-related violence.” Connelly, 117 F.4th at 279. The evidence simply does not establish that Gomez poses a credible threat of violence towards others based on his marijuana conviction. Under current case law, this is fatal to the government's dangerousness argument. As such—even if it is an acceptable standalone theory in the 922(g)(1) context—the government's dangerousness theory fails here. Compare Rahimi, 602 U.S. at 774, 144 S.Ct. 1889 (Thomas, J., dissenting) (“The Government's ‘law-abiding, dangerous citizen’ theory is also antithetical to our constitutional structure.”), with Daniels, 124 F.4th at 976–77 (stating that the “government remains free” in 922(g)(3) cases “to reformulate its dangerousness argument” and attempt to reapply it).

4. Conclusion

The people have a natural and pre-existing right to keep and bear arms—a right recognized and protected by the Second Amendment. Heller, 554 U.S. at 592, 128 S.Ct. 2783. Gomez is part of the people. See Diaz, 116 F.4th at 466; Connelly, 117 F.4th at 274 (“Indeed, the Bill of Rights uses the phrase ‘the people’ five times. In each place, it refers to all members of our political community, not a special group of upright citizens.”). Therefore, it is the government's heavy burden to prove that permanently disarming Gomez is “consistent with this Nation's historical tradition of firearm regulation.” Diaz, 116 F.4th at 464 (quoting Bruen, 597 U.S. at 17, 142 S.Ct. 2111). To recap, the government made essentially three arguments in attempting to meet its burden.

First, the government asserts that it “may disarm those convicted of serious crimes generally” because 922(g)(1) “is constitutional as applied to all felons.” Dkt. No. 31 at 1, 11. But the government concedes that argument is now unequivocally foreclosed by Fifth Circuit precedent. See id. at 11; Diaz, 116 F.4th at 469. And the Fifth Circuit is not alone. Other circuits have likewise “refuse[d] to defer blindly to § 922(g)(1) in its present form.” Range, 124 F.4th at 230 (citing Williams, 113 F.4th at 658–61).

Second, the government contends that it may disarm those convicted “of the possession of certain contraband.” Dkt. No. 31 at 1. Presenting the Court with only three inapt statutes from the Founding era, the government has failed to identify “a representative historical analogue” that is “relevantly similar” to Gomez's possession-of-marijuana conviction. Bruen, 597 U.S. at 29–30, 142 S.Ct. 2111. Specifically, the government proffers a trio of Founding-era laws punishing horse theft and accessory to horse theft, mail theft, and counterfeiting and forgery. See Dkt. No. 31 at 12–18. “Standing alone, these historical laws are not enough,” Contreras, 125 F.4th at 731, because “the principles that underpin” these laws are entirely different than the principles that underpin modern prohibitions on the simple possession of contraband like marijuana, Rahimi, 602 U.S. at 692, 144 S.Ct. 1889. While the government need not present the Court with historical twins, these examples are not even distant relatives. The Fifth Circuit has recently and repeatedly rejected far closer analogies in the Second Amendment context. See supra Analysis § 3.C.ii.b. Laws criminalizing theft and forgery and laws criminalizing the possession of marijuana do not “address a comparable problem,” Daniels, 124 F.4th at 973, and they are not “relevantly similar” even at a high level of abstraction, Bruen, 597 U.S. at 29, 142 S.Ct. 2111. Thus—even if a trio of laws sufficed to establish a Founding-era tradition, see id. at 46—the government's three examples are not “analogous enough to pass constitutional muster.” Id. at 30. Were the Court to find the government's proposed analogues relevantly similar to Gomez's possession-of-marijuana conviction, it would be “read[ing] a principle at such a high level of generality that it waters down the right” to keep and bear arms. Rahimi, 602 U.S. at 740, 144 S.Ct. 1889 (Barret, J., concurring). And the Court's own research uncovered no Founding-era laws that severely punished the simple possession of any type of contraband. See supra Analysis § 3.C.ii.d. Therefore, the Court concludes that the government has not met its heavy burden to prove that depriving Gomez of his rights under the Second Amendment is “consistent with this Nation's historical tradition of firearm regulation.” Diaz, 116 F.4th at 464 (quoting Bruen, 597 U.S. at 17, 142 S.Ct. 2111).

Third, the government claims that it “may disarm dangerous felons.” Dkt. No. 31 at 1. Given the Supreme Court's and the Fifth Circuit's rejection of a broad power to disarm classes of people deemed “irresponsible” or “dangerous,” this argument begins on shaky ground. But, assuming without deciding that the government has the power to disarm “dangerous felons,” it would have to prove that Gomez's felony conviction shows that he presents a “credible threat to the physical safety of another.” Rahimi, 602 U.S. at 702, 144 S.Ct. 1889. Based on the information the Court can consider here—namely Gomez's single state jail felony conviction for possessing over four ounces of marijuana—the government has failed to make this showing. Nothing about Gomez's possession of a bag of marijuana nearly 12 years ago—where he was unarmed and cooperative with law enforcement—indicates that he poses a credible threat of violence towards anyone today. To the extent that the government is permitted to disarm Gomez based on the perceived “dangerousness” of his predicate conviction—wholly detached from specific Founding-era analogues—it has failed to make a sufficient showing that Gomez presents a credible threat of violence to others based on a single conviction for possessing a bag of marijuana over a decade ago.

All their arguments having failed, the government has not carried its heavy burden to show that permanently disarming Gomez is consistent with the text, history, and tradition of the Second Amendment. Although both of Gomez's facial challenges fail under binding precedent, the Court grants the motion (Dkt. No. 26) as to Gomez's as-applied challenge based on the Second Amendment. The Court dismisses the indictment (Dkt. No. 3) and orders Gomez released from federal custody. The Court orders the United States Marshals Service to remand Gomez to the custody of the Lubbock County Sheriff's Office to resolve any state charges that may be pending against him.

So ordered on March 25, 2025.

FOOTNOTES

1.   “Gomez had an outstanding warrant from Roswell, New Mexico, for failure to appear.” Dkt. Nos. 31 at 5; 31-9 at 1–3. It appears this was for neglecting to pay a speeding ticket that Gomez received while driving through New Mexico in 2018. GX 10 at 30:15.

2.   The Lubbock County District Attorney's Office rejected the state felon-in-possession charge—no doubt because the charge is inapplicable to Gomez under Texas law. Cf. Dkt. No. 31-1 at 16–17. Texas law prohibits a felon from possessing a firearm in his own home only “before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later.” Tex. Penal Code § 46.04(a). Texas law still prohibits a felon from possessing a firearm for life “at any location other than the premises at which the person lives.” Id. Because Gomez completed his sentence nine to ten years prior and possessed the gun in his home, the state felony charge did not apply. Under Texas law, Gomez was properly alleged to have committed only a misdemeanor offense by “recklessly discharg[ing] a firearm inside the corporate limits of a municipality having a population of 100,000 or more.” Id. § 42.12(a). Gomez's misdemeanor case (CC-2024-CR-1647) is currently pending in Lubbock County Court at Law #2. Recognizing that Texas Penal Code § 46.04—unlike 18 U.S.C. § 922(g)(1)—is limited in both its temporal and geographic scope, the Court says nothing here about the constitutionality of Section 46.04 or other Texas firearms laws, including as applied to Gomez.

3.   The Court recognizes that, following Diaz, other district courts in this circuit have rejected as-applied challenges to 922(g)(1) by defendants with distinguishable disqualifying convictions. See, e.g., United States v. Wilson, No. 22-238, 2024 WL 4436637, *1 (E.D. La. Oct. 6, 2024) (possession of a stolen firearm, possession of a firearm as a felon, possession with intent to distribute heroin); United States v. Martinez, No. 3:24-CR-148-L, 2024 WL 4508962, *1 (N.D. Tex. Oct. 16, 2024) (aggravated robbery and evading arrest in a vehicle); United States v. Montgomery, No. 3:24-CR-67-01, 2024 WL 4710379, *1 (W.D. La. Nov. 7, 2024) (possession with intent to distribute cocaine and attempted possession of a firearm by a felon); United States v. Landrum, No. 3:24-CR-63-DPJ-LGI, 2024 WL 4806486, *1 (S.D. Miss. Nov. 15, 2024) (felony DUI and unspecified drug offenses); United States v. Garner, No. 5:24-CR-112-01, 2024 WL 4820794, *1 (W.D. La. Nov. 18, 2024) (aggravated battery and possession of a firearm as a felon); United States v. Robinson, No. 22-253, 2024 WL 4827375, *1 (E.D. La. Nov. 19, 2024) (possession with intent to distribute heroin); United States v. Hendrickson, No. 3:23-CR-418-E, 2024 WL 5113495, *1 (N.D. Tex. Dec. 13, 2024) (possession of sawed-off shotgun, possession with intent to distribute marijuana, escape from jail, unlawful possession of a firearm); United States v. Mack, No. 3:24-CR-244, 2025 WL 221808, *1 (W.D. La. Jan. 16, 2025) (possession of cocaine and forgery); United States v. Walton, No. 24-66, 2025 WL 259370, *1 (E.D. La. Jan. 17, 2025) (distribution of false drugs, possession of a firearm by a felon, and possession with intent to distribute cocaine); United States v. Fincher, No. 3:22-CR-0399-K, 2025 WL 277506, *1 (N.D. Tex. Jan. 22, 2025) (burglary of a building and burglary of a habitation); United States v. Kelly, No. 4:25-cr-69-P, 2025 WL 824342, *1 (N.D. Tex. Mar. 14, 2025) (robbery); United States v. Hicks, No. 3:24-cr-437-M, 2025 WL 847874, *1 (N.D. Tex. Mar. 18, 2025) (aggravated assault, domestic assault by strangulation, and forgery). Compared to a conviction for simple possession of marijuana, the predicate convictions in those cases are distinguishable based on both the likely existence of closer historical analogues and the higher degree of dangerousness indicated about the defendants. While some of those cases did address the fit between drug charges and the Founding-era analogues proposed by the government here, most did not distinguish between convictions for drug trafficking (e.g., distribution or possession with intent to distribute) and those for simple possession. Neither did they appear to critically analyze or investigate the government's proffered analogues.

4.   In contrast to their fit with Bullock's predicate convictions, the Fifth Circuit held in Diaz “that the justification behind going armed laws—to mitigate demonstrated threats of physical violence—does not necessarily support a tradition of disarming Diaz, whose underlying convictions do not inherently involve a threat of violence.” Diaz, 116 F.4th at 471 n.5 (internal quotation marks omitted).

5.   The government asks the Court to consider—as conduct related to the instant offense—belligerent statements that Gomez made to his wife on a jail call after he was arrested (and likely while still intoxicated). See Dkt. No. 31 at 6; GX 8. Because those statements are not part of Gomez's disqualifying conviction, they are irrelevant to the Court's analysis under Fifth Circuit precedent. See supra Analysis § 3.C.i.

6.   Gomez also has juvenile adjudications for non-violent property crimes. Noting Gomez's most serious juvenile history, the Court asked the parties whether it could “consider Gomez's juvenile adjudications for burglary of a habitation in 2008 or theft over $1,500 in 2006 as disqualifying felony convictions for the purpose of resolving the motion.” Dkt. No. 28 at 2–3. The government urges the Court to consider Gomez's juvenile history “in making a dangerousness determination,” but, in doing so, appears to tacitly admit that Gomez's juvenile adjudications do not qualify as predicate offenses under Section 922(g)(1). See Dkt. Nos. 31 at 2–3, 31–33; 32 at 4. In response, Gomez notes that 18 U.S.C. § 921(a)(20) states that “a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20); Dkt. No. 32 at 3. Gomez then points to Texas Family Code § 51.13(a), which states that “an order of adjudication or disposition in a proceeding under this title [Title 3 Juvenile Justice Code] is not a conviction of crime.” While Section 51.13 contains some exceptions, none of them apply to Gomez. See Dkt. No. 32 at 4; cf. United States v. Walters, 359 F.3d 340, 346 (4th Cir. 2004) (“That an adjudication is treated as a conviction in specific circumstances implies that it is not so treated as a general rule.”). Therefore, the Court agrees with Gomez that the juvenile “adjudications cited in the government's response are not actual felony convictions under Texas law, and do not meet § 922(g)(1)'s statutory disqualification criteria.” Dkt. No. 32 at 4 (citation omitted); see Walters, 359 F.3d at 341–42 (holding that, because “a juvenile adjudication is not a conviction under Virginia law, such an adjudication cannot serve as the underlying conviction for purposes of 18 U.S.C. § 922(g)(1)”); United States v. Mendez, 765 F.3d 950, 953 (9th Cir. 2014) (reaching the opposite conclusion under Washington state law). Because Gomez's juvenile adjudications are not convictions under Texas law, they are irrelevant to the Court's analysis here. See Dkt. No. 32 at 4–5 (citing Diaz, 116 F.4th at 467).

7.   Gomez had a municipal warrant for public intoxication by a minor—a Class-C misdemeanor. Dkt. No. 31-5 at 6. The Court notes that Texas Class-C misdemeanors are infraction-like offenses such as traffic violations—which do “not impose any legal disability or disadvantage”—and are generally punishable “by a fine not to exceed $500.” Tex. Penal Code §§ 12.03(c), 12.23.

8.   The Court notes that 18 U.S.C. § 921(a)(20) excludes “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less” from the definition of a “crime punishable by imprisonment for a term exceeding one year” under Section 922(g)(1). But because Gomez pled guilty to a crime designated by the State of Texas as a “state jail felony,” see Dkt. No. 31-6 at 2, he does not qualify for this carve-out provision even though the maximum punishment he faced was “a term of imprisonment of two years or less.” 18 U.S.C. § 921(a)(20); see also Range, 124 F.4th at 223 (noting that, although he was convicted of a state misdemeanor, the “safe harbor [of 921(a)(20)] provided no refuge for Range because he faced up to five years' imprisonment”).

9.   Despite being sentenced to a misdemeanor-level punishment under Texas Penal Code § 12.44(a), Gomez pled guilty to a “state jail felony.” Dkt. No. 31-6 at 2. There is no indication that Gomez was sentenced under Texas Penal Code § 12.44(b), which allows “the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.” Thus, the Court concludes that Gomez's conviction is a disqualifying felony conviction under 18 U.S.C. § 922(g)(1). And neither party appears to dispute that Gomez's 2014 conviction is a disqualifying felony conviction. See generally Dkt. Nos. 26; 31; 32.

10.   The Court has retained the original spelling of the seventeenth-century to nineteenth-century laws quoted in this Order.

11.   After rejecting the government's proffered analogues, the Fifth Circuit rejected Contreras's Second Amendment challenge for two unrelated reasons. The record in Contreras showed that the defendant was on supervised release at the time of his 922(g)(1) arrest and that he was intoxicated at the time of his underlying arrest for his disqualifying 922(g)(3) conviction. Therefore, the Contreras panel came to the same conclusion that the Giglio panel would come to ten days later, namely that “we have a history and tradition of ․ taking away [felons'] weapons while they complete their sentence.” Contreras, 125 F.4th at 732–33. Additionally, following Connelly, the Contreras panel concluded that 922(g)(1) was applicable to Contreras because the record showed he was intoxicated at the time of his arrest for the predicate 922(g)(3) offense and that we have “a history and tradition of disarming those that are intoxicated.” Id.

12.   The Fifth Circuit is not alone in recently rejecting even closer analogies than the government presents here. In Range—where the predicate conviction was for “making a false statement to obtain food stamps”—the Third Circuit rejected astonishingly close analogues as not close enough. Range, 124 F.4th at 230–31. The court acknowledged that “the First Congress made forging or counterfeiting a public security a capital offense.” Id. Notably, the court cited one of the exact laws that the government cites here—“An Act for the Punishment of Certain Crimes Against the United States, 1 Stat. 112, 115 (1790).” Id. at 231; see Dkt. No. 31 at 12. But this was not close enough even to food-stamp fraud in the Third Circuit because Range's crime “may be more analogous to other offense[s] defined in the same law punishable by a term of imprisonment or fine.” Range, 124 F.4th at 231.

13.   See, e.g., An Act for the Better Discovery and More Effectual Suppressing of Unlicensed Houses 1695, ch. 34, reprinted in The Charters and General Laws of The Colony and Province of Massachusetts Bay 287–88 (1814) (prohibiting alcohol sales in unlicensed houses); An Act for Regulating Taverns, and Reducing the Rates of Tavern License, reprinted in Robert Watkins & George Watkins A Digest of the Laws of the State of Georgia from its First Establishment as a British Province Down to the Year 1798 453–54 (1800) (prohibiting the sale of alcohol without a license); An Act for Well-Ordering and Governing the Indians in this State; and Securing their Interest, reprinted in Acts and Laws of the State of Connecticut, In America 101 (1784) (prohibiting the sale of alcohol to Indians).

14.   See, e.g., An Act for Regulating the Inspection of Tobacco, reprinted in Robert Watkins & George Watkins, supra, at 444 (1800) (“[N]o person shall put on board, or receive into any ship ․ any tobacco which shall not have been packed in hogsheads or casks.”); An Act to Regulate the Curing and Packing of Tobacco, and to Prevent Fraud therein, reprinted in Acts and Laws of the State of Connecticut, In America 247 (1784) (“[N]o packer shall pack any tobacco, which is his own property, for sale nor let his brand or mark on any cask or other vessel containing his own property, on penalty of the sum of forty shillings for every cask or other vessel wherein he shall pack his own tobacco for sale or whereon he shall let his mark or brand as aforesaid.”) (cleaned up).

15.   See An Act Against Gaming, reprinted in Acts And Laws Of The State Of Connecticut, In America, supra, at 89 (forbidding any tavern owner from “hav[ing] or keeping in or about their houses ․ any dice, cards, tables, bowls, shuffleboard, billiards, ․ or any other implement used in gaming” under penalty of a forty-shilling fine) (cleaned up); An Act Regulating Licensed Houses, reprinted in 5 Laws of New Hampshire 753 (1916) (1791 law) (stating that no licensed person “shall have or keep in and about his house or houses; outhouses, yards, gardens, or places to him belonging any Cards, Dice, or any other implements used in gaming ․ on penalty of paying a fine of forty shillings”); An Act to Prevent Gaming, and Horse Racing, reprinted in Robert Watkins & George Watkins, supra, at 201 (1777 law) (imposing a twenty-pound fine for any licensed tavern keeper who permits “either by cards, dice, draughts, shuffle boards, billiards, skittles, ninepins, or ․ any other game” on his premises); An Act for Regulating Taverns and Reducing the Rates of Tavern License, reprinted in Robert Watkins & George Watkins, supra, at 454 (1791 law) (requiring tavern keepers to have a license “to keep a billiard table” or be subject to a ten-pound fine); Act of Apr. 22, 1794, ch. 1746, reprinted in 3 Laws of Commonwealth of Pennsylvania 181 (ordering that “no billiard table ․ be set up, kept, or maintained in any dwelling-house, out-house, or place occupied by any tavern-keeper” under penalty of forfeiting the table and paying a fine of twenty-six dollars).

16.   Economic historians disagree about how to properly calculate the value of colonial-era currency in modern terms, and the values of pounds, shillings, and pence varied between colonies. Ron Michener, Money in the American Colonies, Econ. Hist. Ass'n (Jan. 13, 2011), https://perma.cc/7JQ2-Q4AJ. One pound usually equaled 20 shillings, and one shilling equaled 12 pence. Id. Skipping over the math involved, the Court's research indicates that a pound in mid-to-late 1700s Virginia or Massachusetts likely would be worth anywhere between $120 to $250 in 2025.

17.   In contrast to the distinguishable cases listed in footnote 3, supra, one district court in the Fifth Circuit has recently confronted an as-applied challenge to 922(g)(1) where the defendant's only disqualifying conviction was for the possession of marijuana over four ounces. United States v. Patino, No. 24-CR-60-DC, ––– F.Supp.3d ––––, ––––, 2024 WL 5010146, *1 (W.D. Tex. Nov. 26, 2024). In that court's order denying the motion to dismiss, it addressed the same proffered analogues and came to a different conclusion than this Court does today. Acknowledging that faithfully “applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins,” Bruen, 597 U.S. at 31, 142 S.Ct. 2111, the Court respectfully disagrees with its sister court.

18.   The Court notes that there are no allegations or indications that Gomez is or ever was a member of a criminal street gang. Cf. Dkt. No. 31-7 at 4 (stating that Gomez's alleged reckless discharge of a firearm was not gang-related). While the government did not attempt to equate modern-day gang members with any dangerous class disarmed at the Founding—and the Court has not researched the tenability of such an analogy—the Court notes that the analysis here as to membership in a dangerous class might be different were Gomez a confirmed member of a criminal gang. Relatedly, while the government alleges that the unadjudicated facts and circumstances of Gomez's marijuana arrests 12 to 14 years ago “suggest” that he was a drug dealer, see Dkt. No. 31 at 33, 37, the government never attempts to tie this allegation to Gomez's membership in a more specific class of people (i.e., drug dealers) who allegedly are analogous to a dangerous class of people disarmed at the Founding for similar reasons. The government merely repeats its argument—doomed in the Fifth Circuit—that it may disarm Gomez simply because he is a member of a broad class of felons. See id. at 18–28.

19.   Gomez certainly could be temporarily disarmed due to his state jail felony conviction—both while serving his sentence and likely for at least two years. See Giglio, 126 F.4th at 1045 (“Early American history reveals that individuals could be disarmed while carrying out [criminal] sentences.”); Range, 124 F.4th at 289 (Roth, J., concurring) (concluding “that when disarmament is purely based on felon status ․, an indicator of the power to regulate is the maximum penalty for the offense of conviction”); Range, 124 F.4th at 252 (Krause, J., concurring) (“[T]he Second Amendment demands that the disability [922(g)(1)] imposes has at least the potential to be of limited duration.”). But Section 922(g)(1), of course, imposes an unqualified, lifetime ban on firearms possession.

20.   Gomez was initially arrested for possession of over four ounces of marijuana in a drug-free zone—a third degree felony punishable by up to 10 years in prison. See Dkt. No. 31-5 at 6; Tex. Penal Code § 12.34; Tex. Health & Safety Code § 481.134(d). But this was only because the police officer happened to stop Gomez's vehicle within 1,000 feet of a public park. See Dkt. No. 31-5 at 6–7. There is no indication that Gomez was ever at or intentionally near the park. See id.

21.   The Court notes that there is no indication of Gomez fighting, fleeing, or possessing a firearm in either of his two misdemeanor arrests either. In fact, there are no indications in the record that Gomez has ever carried a firearm while in possession of marijuana, nor that he has ever fought or fled from officers. Nor does the record show that Gomez has ever committed any assaultive offenses or violent crimes against persons—even as a juvenile.

JAMES WESLEY HENDRIX, UNITED STATES DISTRICT JUDGE