The Fifth Circuit just handed down a unanimous 3–0 ruling in United States v. Hembree, No. 24-60436 (5th Cir. Jan. 27, 2026), holding that 18 U.S.C. § 922(g)(1) — the federal felon-in-possession statute — is unconstitutional as applied to Charles Hembree, a Mississippi man whose sole felony conviction was a single count of methamphetamine possession in 2018. The government offered no historical analogue that would justify a lifetime gun ban for that conduct, and the panel agreed it couldn’t find one. This is a real Second Amendment win, but the strategic picture is complicated — and I want to be very direct about what comes next.
What § 922(g)(1) Actually Does — and Why It’s a Problem
Under 18 U.S.C. § 922(g)(1), any person ever convicted of a crime punishable by more than one year in prison is permanently disarmed. The statute does not distinguish between violent and non-violent offenders. It does not care whether you served a single day in prison. If a legislature labels something a felony and attaches the theoretical possibility of a year-plus sentence, you lose your Second Amendment rights for life.
Think about what that means in practice. Martha Stewart was convicted in 2004 of making false statements to FBI investigators — not violence of any kind, but lying to federal agents. Under § 922(g)(1), that disarmed her permanently. If a state labeled jaywalking a felony punishable by five years, a jaywalker would be federally disarmed for life. Under Bruen, 597 U.S. 1 (2022), when the Second Amendment’s plain text covers the conduct at issue, the burden shifts to the government to prove a historical tradition of regulation. The government has to earn disarmament — not just label something a felony and call it a day.
The Three-Way Circuit Split — and Where the Fifth Circuit Stands
Right now, the federal circuits are handling § 922(g)(1) as-applied challenges in three very different ways, and that conflict is only going to intensify.
Theory one — the categorical approach — holds that any felony conviction, violent or not, constitutes a lawful basis for lifetime disarmament. The Second, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits have all applied some version of this. The Ninth Circuit, sitting en banc, reaffirmed it as recently as May 2025. These courts essentially treat the felon label as self-executing.
Theory two is the individualized-dangerousness approach, used by the Third and Sixth Circuits. Under this framework, a trial judge must make a specific finding about whether this particular defendant poses a violent danger to society. Simply being a convicted felon is not sufficient on its own.
Theory three is the Fifth Circuit’s elemental approach, applied here and in United States v. Diaz, No. 23-50452 (5th Cir. Sept. 18, 2024). The question is whether the elements of the specific conviction — and only those elements, not uncharged conduct stuffed into pre-sentencing reports — support a finding of dangerousness with a historical analogue. What you were actually convicted of is what matters. Prosecutorial allegations that were never proven in court don’t count.
Why the Fifth Circuit Got Hembree Right
Judge Stephen A. Higginson, writing for the panel, traced the history of drug regulation in the United States and found it wanting. Simple drug possession was not even criminal at the founding. The Pure Food and Drug Act of 1906 — enacted roughly 115 years after the Second Amendment — was the first federal law to require accurate labeling of substances like cocaine, heroin, and alcohol, and it did not criminalize possession at all. As the court noted, drawing on Diaz:
§ 922(g)(1) can only be constitutionally applied to a defendant if his disqualifying convictions would have been subject to harsh felony punishments in the founding era. And because conduct similar to possession of meth was not even criminal, much less subject to death penalty or forfeiture of estate at the founding, the government has not met its burden of proving that disarming him is within the tradition of regulations.
The government’s counter-argument — that drug buyers enable drug traffickers, making them constructively dangerous — didn’t survive contact with the historical record. Drug trafficking is a different animal. Traffickers operate in a market that cannot resort to courts for contract enforcement; violence or its threat is baked into the business model. That’s a plausible historical analogue for dangerousness. But mere possession of a controlled substance? The Fifth Circuit correctly concluded there is no founding-era tradition supporting permanent disarmament for that. Hembree’s conviction under § 922(g)(1) gets tossed.
A Word of Strategic Warning
Here is where my frustration boils over, because being legally right and being strategically smart are two separate things. If anyone at the Department of Justice is reading this, I have one piece of advice: do not petition for certiorari. Do not take Hembree to the Supreme Court.
I have been arguing for years that the cases you use to build Second Amendment precedent matter as much as the legal arguments. Look at the defendants who have already set binding law. United States v. Rahimi, 602 U.S. 680 (2024): Zackey Rahimi, subject to a domestic-violence restraining order, who shot at witnesses. The Supreme Court reversed the Fifth Circuit 8–1 and upheld § 922(g)(8), with only Justice Thomas dissenting. And now United States v. Hemani, No. 24-1234, argued March 2, 2026, still pending: Ali Danial Hemani, a dual U.S.-Pakistan citizen under FBI investigation for suspected terrorist ties, found with a Glock 9mm, marijuana, and cocaine, charged under § 922(g)(3).
This Supreme Court is friendly to the Second Amendment. But it will not bend over backwards for defendants who look like drug users, cartel-adjacent figures, or terrorism suspects. These are not the vehicles you want carrying 2A jurisprudence to the High Court. The Bruen majority came out of a clean challenge to New York’s may-issue permitting regime — a law aimed squarely at ordinary law-abiding citizens. Hembree is a win. Bank it and let better plaintiffs carry the argument forward.
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.