On October 5, the Supreme Court denied certiorari in United States v. Hembree, No. 25-1219, leaving intact a Fifth Circuit decision that held 18 U.S.C. § 922(g)(1) unconstitutional as applied to a man whose only prior felony was simple possession of methamphetamine. The Solicitor General had asked the Court to hold the petition for United States v. Hemani and then vacate and remand for reconsideration. The Court declined to do either. It issued no opinion, and a denial of certiorari carries no precedential weight. What the order shows is what the Justices chose not to do, and from that I draw a conclusion about where the Second Amendment movement should spend its effort.
What the Court Declined to Do
Charles Hembree’s sole predicate was a 2018 Mississippi conviction for possessing methamphetamine. On January 27, 2026, a Fifth Circuit panel reversed his later § 922(g)(1) conviction, 165 F.4th 909, writing: “For the reasons explained below, we find Hembree’s conviction unconstitutional as applied and reverse the district court’s conviction.” The panel distinguished trafficking from possession, observing that “there is still a common element between trafficking and distribution that is not present, even on the face of the criminal statute, with possession.” The Court’s order leaves that ruling undisturbed.
By my count, the Court denied roughly three dozen petitions involving § 922(g) the same day, Hembree among them. I read that pattern as a signal that the Court has no appetite, at least for now, for another prohibited-persons case. That is my inference from an order list, not a holding, and a Court that declines today can grant tomorrow.
Bad Facts Make Bad Law
I have long argued that the movement should not want § 922(g) cases at the Supreme Court. They arrive with criminal records attached, and this Court is not inclined to extend sympathy to criminals. Rahimi involved a man who threatened and shot at others. Hemani involved a drug user the government alleged had ties to Iran’s Revolutionary Guard. Neither was the plaintiff the Second Amendment would have chosen.
We won Hemani 9–0, and I called that result fortunate. I still regard the Solicitor General’s decision to bring the case as a walk through a minefield. Crossing one without detonating anything does not make it a sound route.
There are two kinds of Second Amendment rights claimants: the civil plaintiff challenging a modern gun control law, and the criminal defendant raising the right against a charge. Courts are far more receptive to the first. A law-abiding citizen who wants to own an AR-15, a suppressor, or a magazine holding more than ten rounds, or to carry without a patchwork of sensitive-place restrictions, presents the constitutional question stripped of distraction. That is why Viramontes v. Cook County and Grant v. Higgins, set for argument on December 2, matter so much. I expect a significant victory, though that is a forecast.
A Framework for Who May Be Disarmed
My view of § 922(g)(1) follows Rahimi, which held 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.” 602 U.S. 680, 702 (2024). Adjudicated dangerousness is the constitutional line. Applied to felony convictions, I see three categories.
The first is violent offenders: murder, rape, robbery. A conviction beyond a reasonable doubt is an adjudication of dangerousness, and the person may be disarmed, at a minimum temporarily.
The second is clearly nonviolent offenders. Martha Stewart’s conviction for false statements to federal investigators is one example, and Bryan Range, the Third Circuit plaintiff disarmed over a decades-old food-stamp offense, is another. Nothing in such a record shows danger to anyone.
The third is the middle ground, and the line I would draw runs between sellers and users. A drug dealer enforces his contracts through violence or the threat of it, so a trafficking conviction places him with the violent offenders. A mere user or possessor, like Mr. Hemani and Mr. Hembree, is not shown by that status alone to be dangerous. This is my framework and my forecast, and I expect it to become the law of the Fifth Circuit and, eventually, of the Supreme Court.
Cordova and What Comes Next
The Fifth Circuit’s September 14 grant of rehearing en banc in United States v. Cordova, No. 24-50564, is the vehicle. That grant vacated the panel opinion and the concurrences of Judges Ho and Oldham, so they no longer bind anyone. But Judge Oldham’s concurrence set out a dangerousness approach that I think is correct, and I predict the en banc court will adopt its substance. Argument is calendared for January 2027.
Other channels are opening as well. The Justice Department’s restored § 925(c) process now lets individuals apply for administrative restoration of their rights.
Mr. Hembree won in the Fifth Circuit, and the Supreme Court left his victory standing. The lesson for the movement is plain: let the courts of appeals work through § 922(g), and send the Supreme Court the law-abiding plaintiffs it has shown it wants to hear.
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.