Fifth Circuit strikes down lifetime ban on nonviolent felon

A unanimous decision from the U.S. Court of Appeals for the Fifth Circuit on Jan. 27 delivered one of the most important Second Amendment wins in years — and it did so quietly, methodically, and on solid constitutional ground.

In United States v. Charles Hembree, the Fifth Circuit ruled 3-0 that the federal government cannot permanently disarm a person based solely on a single, nonviolent drug possession conviction. Applying the Supreme Court’s modern Second Amendment framework, the court held that enforcing the federal “felon-in-possession” statute, 18 U.S.C. § 922(g)(1), against Hembree violated the Constitution.

For gun owners, this ruling matters far beyond one defendant in Mississippi.

United States v. Hembree

Charles Hembree had one felony on his record — a 2018 Mississippi conviction for possession of methamphetamine. Hembree was not accused of trafficking drugs, committing violence, or using a firearm in connection with the offense. Years later, federal prosecutors charged him under § 922(g)(1) after he possessed a firearm, arguing that any felony conviction automatically justifies a lifetime gun ban.

A federal district court agreed. The Fifth Circuit did not.

On appeal, a three-judge panel vacated Hembree’s conviction, holding that the statute was unconstitutional as applied to him. The court concluded that permanently disarming someone for a single, nonviolent possession offense has no grounding in the Nation’s historical tradition of firearm regulation.

That historical grounding is not optional. It is now the law.

Bruen means government bears burden

The Fifth Circuit’s analysis flows directly from New York State Rifle & Pistol Association v. Bruen, which fundamentally reshaped Second Amendment jurisprudence.

Under Bruen, courts must ask two questions:

1. Does the conduct at issue — here, possessing a firearm — fall within the plain text of the Second Amendment?
2. If so, can the government prove that its restriction is consistent with the Nation’s historical tradition of firearm regulation?

Possessing a firearm plainly falls within the Second Amendment’s text. That shifted the burden squarely onto the federal government.

The Fifth Circuit found no historical analogue that supports permanently stripping someone of the right to keep and bear arms based solely on nonviolent drug possession. In fact, the court noted that drug possession itself was largely unregulated at the Founding, and modern narcotics laws are a twentieth-century invention.

Possession isn't trafficking — and the court said so

One of the most significant parts of the ruling is the court’s clear distinction between drug possession and drug trafficking.

The government argued that drug users “enable” trafficking and should therefore be treated like traffickers. The Fifth Circuit rejected that theory as unsupported by history or logic. Trafficking, by its nature, often involves violence or the threat of violence. Simple possession does not.

This approach aligns with how the Supreme Court is likely to think about these cases. Violent felonies — murder, rape, armed robbery — are a different category. Nonviolent conduct should not be treated the same.

Growing circuit split that SCOTUS can’t ignore

The Hembree decision deepens an existing split among federal courts.

Some circuits still hold that any felony conviction justifies a lifetime gun ban. Others require individualized dangerousness determinations. The Fifth Circuit goes further, tying the analysis to the elements of the actual offense and historical tradition.

That makes the Fifth Circuit the most consistent defender of the Second Amendment in the federal judiciary today.

Case made to SCOTUS: States can't ban carry on property open to public

Eventually, the Supreme Court of the United States will have to resolve this split. When it does, Hembree would appear to be one of the cleanest, best-reasoned examples of how Bruen is supposed to work. However, gun rights advocates, such as Mark Smith of the Four Boxes Diner, believe taking cases such as Hembree before the Supreme Court would be a mistake at this time.

According to Smith, his advice to pro-2A DOJ prosecutors would be not to appeal the Fifth Circuit’s decision. There is a strategic lesson here: bad cases make bad law. Using bad defendants to set national precedent is risky — like Rahimi and Hemani — especially when the Supreme Court is both pro-Second Amendment and deeply skeptical of criminal conduct.

Pushing cases like Hembree to the high court could easily result in a narrower, less favorable rule for gun owners nationwide.

What will Hembree mean for gun owners?

The Fifth Circuit’s unanimous ruling in United States v. Charles Hembree is a win for gun owners, but how far that win will go is unknown. The fear is that the Supreme Court has ruled against violent drug users’ gun rights. Cases like this create the opportunity for bad case law to override the gains the Second Amendment has made in recent years.

Whether the DOJ seeks an appeal in this case to the Supreme Court could set up the next big Second Amendment case the court hears.

Republished with permission from AmmoLand.