This one is enormous, and it landed where I have been telling you it had to land. In United States v. Cockerham, No. 24-60401 (5th Cir. Dec. 17, 2025), a 2-1 Fifth Circuit panel held that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to Edward Cockerham, a Mississippi man whose only predicate “felony” was failing to pay child support under Miss. Code § 97-5-3. He paid the arrears in full. He never spent a day in prison. Yet the federal government insisted he had forfeited his Second Amendment rights for life. Judge James C. Ho, joined by Judge Cory Wilson, said no. Judge Stephen Higginson dissented, but on a narrow remand posture, not on the merits.
The Statute Is a Trap, and Cockerham Walked Into It
Let me lay out the game. Section 922(g)(1) does not ask whether you actually served time. It does not ask whether your underlying offense was violent. It asks whether the predicate crime was punishable by more than one year in prison (or, for state misdemeanors, more than two years). That is the entire trigger. Once crossed, you lose your right to keep and bear arms for life.
As pure statutory interpretation, that reading is correct — Congress wrote a sweeping ban. But the constitutional question is different, and that is the question Cockerham preserved on appeal. Mississippi’s nonsupport statute makes first-offense failure to pay child support a felony “punishable by commitment to the custody of the Department of Corrections” for up to five years. Cockerham was convicted under that statute, paid the debt, completed probation, and was later found in possession of two firearms. The feds charged him under § 922(g)(1). He pleaded guilty, preserved the as-applied challenge, and appealed.
Bruen and Rahimi Did the Work — and the Government Couldn’t Carry Its Burden
The framework here is not exotic. After New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680 (2024), the government must show that any modern firearm regulation is consistent with this Nation’s historical tradition of firearms regulation. Ho applies that framework cleanly and reminds the government that the “presumptively lawful” language from Heller and Bruen about felon-in-possession laws is not a get-out-of-jail-free card. The government still has to prove it up. It has to put forward historical analogs. Dicta about presumptions does not relieve it of that burden.
So what did the government offer? Two analogs: founding-era theft laws and debtor’s prisons. Ho dispatches both. Debtor’s prison required imprisonment until the debt was paid or forgiven — and Cockerham had paid. The analogy collapses on its own terms. The theft laws fare no better, because Cockerham is not a thief. He did not take anyone’s property. He failed to make timely payments on a court-ordered obligation that he later satisfied. The Fifth Circuit’s earlier decision in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), upheld § 922(g)(1) against a defendant with a theft and evading-arrest record by analogizing to founding-era horse-thief disarmament. Cockerham distinguishes Diaz on exactly that ground — Cockerham is a former debtor, not a thief.
Then the government tries a backstop: the record contains allegations that Cockerham was involved in assaults and other violent acts. The Fifth Circuit shuts that door too. Section 922(g)(1) operates on convictions, not innuendo, not unsworn affidavits, not allegations that were never tested beyond a reasonable doubt. If the government wants to disarm a man as dangerous, it has to convict him of being dangerous. It cannot smuggle that finding in through the back door of a child-support case.
Barrett’s Kanter Dissent, Now Doing Circuit-Court Work
The doctrinal backbone of Ho’s opinion is then-Judge Amy Coney Barrett’s dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). Barrett, before her elevation to the Supreme Court, wrote that the historical record permits legislatures to disarm dangerous people, but does not permit status-based, lifetime disarmament of nonviolent felons. That dissent has been quietly metastasizing into majority law across the circuits — Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc), got there first with Bryan Range’s food-stamp misdemeanor — and now Ho cites Barrett directly for the proposition that “history does not support the proposition that felons lose their second amendment rights solely because of their status as felons.” That is the line. That is what Bruen required courts to take seriously, and the Fifth Circuit has now taken it seriously.
”History, Not Hoplophobia”
Here is the passage from Ho that is going to get quoted in every § 922(g)(1) brief filed in this circuit for the next decade:
Our analysis of the Second Amendment must be guided by history, not hoplophobia.
Historical tradition unquestionably permits the government to disarm violent criminals. But our history is very different when it comes to nonviolent crimes. History does not support the proposition that felons lose their second amendment rights solely because of their status as felons.
Ho ties this to overcriminalization, leaning on Justice Neil Gorsuch’s longstanding warning that modern criminal codes have grown so exuberantly that ordinary Americans routinely commit felonies without knowing it. Founding-era crimes were largely malum in se — wrong in themselves. The modern regulatory state has churned out countless malum prohibitum felonies that have no moral content at all. Treating every one of those as a lifetime disarmament trigger is constitutionally absurd, and Ho is willing to say so out loud.
Higginson’s Dissent, and What Comes Next
Judge Higginson’s dissent does not really fight the merits. He largely concedes that the government failed to meet its burden on this record. His position is that the right move is to remand to the district court for more historical factfinding. I disagree, and I think the majority is right to reject that move. The Supreme Court has been doing the historical work itself, without expert witnesses, in Heller, Bruen, Caetano, and Rahimi. History is law, not fact. Appellate courts can — and must — do that work themselves.
The practical implications are significant. The Fifth Circuit now joins the Third Circuit in carving out room for serious as-applied challenges to § 922(g)(1) for nonviolent predicates. Expect a wave of filings across Mississippi, Louisiana, and Texas. Expect a circuit split to deepen until the Supreme Court takes a clean vehicle. And expect Judge Ho — already on every credible Supreme Court shortlist — to be quoted back to the Justices when that day comes.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.