On September 14, 2026, the full United States Court of Appeals for the Fifth Circuit granted rehearing en banc in United States v. Cordova, No. 24-50564, agreeing to decide for the entire circuit what standard permits the federal government to strip an American of Second Amendment rights for life under 18 U.S.C. § 922(g)(1), the felon-in-possession statute. Every active judge on the Fifth Circuit will now hear the case, with argument set for the court’s January 2027 en banc sitting. What makes this grant remarkable is that two members of the original panel wrote separately, in the very opinion upholding the conviction, to say the precedent binding them should not survive.
A Lifetime Disarmament With No Finding of Danger
Peter Villa Cordova had prior felony convictions for drug possession and for evading arrest with a motor vehicle. He never served a day in prison for either. Roughly a decade later, he was found with a firearm and ammunition and prosecuted under § 922(g)(1), which disarms for life anyone convicted of a crime punishable by more than a year’s imprisonment, regardless of whether the underlying offense involved violence and regardless of whether the person ever set foot in a cell. On May 20, 2026, a panel of Judges Haynes, Ho, and Oldham affirmed Cordova’s conviction, bound by the circuit’s own precedent in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024). But Judges Ho and Oldham each used their concurrences to tell the rest of the circuit that Diaz had to go.
”Diaz Must Go”
Judge Oldham did not soften the point. “Particularly unfortunate among our mistakes is a case called United States v. Diaz,” he wrote, “which is the accidental font of all our felon-in-possession precedent. Diaz was wrong on the day it was decided. And it gets more wrong with each passing day.” He continued: “Rather than join the White Rabbit for another journey into our circuit’s § 922(g)(1) Wonderland, it is time to say enough is enough. Diaz must go.” Judge Ho’s concurrence made the constitutional stakes plain: “Section 922(g)(1), by contrast, disarms individuals for the rest of their lives, regardless of whether the individual has been convicted of a violent crime or spent a single day in prison.” I have argued for more than a year that a felony conviction, standing alone, tells a court nothing about whether a person is dangerous to anyone else. Two sitting circuit judges have now reached the same conclusion in a published opinion.
The Dangerousness Standard Already Taking Shape
Judge Oldham went further than criticizing Diaz. He proposed what should replace it: “the time has come to discard Diaz and to embrace a better Second Amendment standard,” he wrote, offering “as a working hypothesis” a “dangerousness standard” that “would ensure that any decision to disarm any American is consistent with the principles that underpin our regulatory tradition.” That standard did not originate in Cordova. The Supreme Court applied it in United States v. Rahimi, 602 U.S. 680, 702 (2024), holding that “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.” Zackey Rahimi’s disarmament under a different subsection, § 922(g)(8), rested on a court’s finding, entered through a domestic-violence protective-order proceeding, that he posed exactly that threat. The lineage runs back further still, to then-Judge Amy Coney Barrett’s dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019): “history confirms that the basis for the permanent and pervasive loss of all rights cannot be tied generally to one’s status as a convicted felon.” I have long believed that dissent is a principal reason she sits on the Supreme Court today. The Court reinforced the same principle this year in United States v. Hemani, ruling 9–0 that marijuana use alone could not support disarming a defendant under § 922(g)(3). Status is not danger. Danger is danger.
Violence Is the Line, and No Other Right Disappears Forever
Judge Oldham’s own historical survey draws the line I would draw. “No would-be American tyrant, then or now, can lawfully resurrect English abuses by merely claiming that innocent Americans’ political views, religious associations, or possession of firearms are themselves dangerous,” he wrote. “Rather, the early American evidence shows that disarmament can be applied only to certain dangerous criminals, and even then they had a chance to contest their dangerousness.” If the underlying conviction involves violence, murder, rape, assault, robbery, or drug dealing enforced by the threat of violence, a lifetime disarmament rests on a genuine finding of dangerousness and is consistent with the Second Amendment. If the conviction is for something like food-stamp fraud or another non-violent offense, § 922(g)(1) cannot constitutionally take that right away forever. No other guarantee in the Bill of Rights works this way: a felony conviction does not permanently end anyone’s First, Fourth, or Fifth Amendment rights. Even a person properly found dangerous has recourse. He can later petition a court that he no longer poses a threat, or seek relief through the § 925(c) restoration-of-rights process the Justice Department has resumed using.
What Comes Next
The Fifth Circuit’s own calendar has Cordova set for argument during its January 2027 en banc sitting, not the sixty to ninety days I initially expected. In my view, Judges Ho and Oldham are both serious contenders for a future Supreme Court seat, alongside judges like David Stras of the Eighth Circuit and Lawrence VanDyke of the Ninth, though that is my own assessment and not a prediction anyone should bank on. What matters now is that one of the country’s most influential circuits has agreed, at two of its own judges’ urging, that felony status and dangerousness are not the same thing, and that Cordova is the vehicle to say so.
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.