United States v. Kimble

Case: 23-50874       Document: 105-1         Page: 1   Date Filed: 06/30/2025




        United States Court of Appeals
             for the Fifth Circuit                            United States Court of Appeals
                                                                       Fifth Circuit
                             ____________
                                                                     FILED
                                                                 June 30, 2025
                              No. 23-50874
                             ____________                       Lyle W. Cayce
                                                                     Clerk
United States of America,

                                                          Plaintiff—Appellee,

                                    versus

Sidney Donnell Kimble,

                                        Defendant—Appellant.
               ______________________________

               Appeal from the United States District Court
                    for the Western District of Texas
                        USDC No. 5:21-CR-355-1
               ______________________________

Before Smith, Graves, and Duncan, Circuit Judges.
Jerry E. Smith, Circuit Judge:
       Sidney Kimble has been convicted of two drug-trafficking felonies.
After serving his time for each offense, he was found in possession of a hand-
gun and charged and convicted under 

(g)(1), which bars
felons from possessing firearms. His appeal posits that prohibiting him from
keeping or bearing arms for the remainder of his life violates the Second
Amendment. Because disarming drug traffickers accords with the nation’s
history and tradition of firearm regulation, we affirm Kimble’s conviction.
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                                        No. 23-50874


                                              I.
       Kimble pleaded nolo contendere to manufacturing or delivering a con-
trolled substance after officers found him carrying crack cocaine, marihuana,
yellow pills of an unidentified substance, and over $1,000 in cash. He was
sentenced to six years’ confinement for that state-level felony but served just
one year. His parole term expired on January 5, 2018.
       In 2015, Kimble sold a confidential informant approximately
139 grams of crack cocaine. He pleaded guilty to a federal felony: possession
with intent to distribute a detectable quantity of cocaine. He was sentenced
to 18 months in prison followed by four years of supervised release. He was
released early in July 2016, at which point his four years of supervised release
commenced. But after violating his terms of release by cheating on a drug
test, he was re-imprisoned for 12 months beginning on January 1, 2018. The
order remanding Kimble to prison stated that upon his release, “no super-
vised release [would] follow.” He was again released early on July 6, 2018.
       Kimble’s present appeal stems from his arrest on July 16, 2021, when
law enforcement agents attempted to stop him for outstanding warrants for
possession of a controlled substance and being a felon in possession of a fire-
arm. As Kimble fled, officers observed him discard a handgun from his
waistband. The officers caught up, arrested Kimble, and recovered the gun.
He was charged with violating § 922(g)(1), the felon-in-possession statute. 1
       After several continuances, Kimble moved to dismiss the indictment
in March 2023 on the ground that § 922(g)(1) was unconstitutional both
facially and as applied to him. The district court denied Kimble’s motion to
dismiss because, in its view, New York State Rifle & Pistol Ass’n v. Bruen,

 (2022), did not overrule binding Fifth Circuit precedent holding
       _____________________
       1
           For readability, we sometimes truncate the statute’s citation to “(g)(1).”




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                                       No. 23-50874


(g)(1) constitutional under the Second Amendment. Kimble then pleaded
guilty without the benefit of a plea agreement. The district court accepted
the plea in August 2023 but agreed that by pleading guilty, Kimble was not
giving up his right to appeal the constitutionality of the statute of conviction
in light of Bruen.
        As with all constitutional questions, we consider Kimble’s as-applied
challenge to (g)(1) de novo. United States v. Daniels, 

 (5th
Cir. 2025, petition for cert. filed (June 5, 2025) (No. 24-1248).

                                             II.
        Title 

(g)(1) makes it unlawful for an individual to pos-
sess a firearm if he “has been convicted in any court of[] a crime punishable
by imprisonment for a term exceeding one year.” Kimble contends that, as
applied to him, (g)(1) violates the Second Amendment. To survive Kimble’s
challenge, the government must demonstrate that the nation has a tradition
of disarming someone with a criminal history analogous to his. See United
States v. Diaz, 

 (5th Cir. 2024), cert. denied, 

 (U.S. June 23, 2025). We first (A) expound the relevant legal
framework and then (B) address the government’s two arguments that
(g)(1)’s lifelong ban on Kimble’s firearm possession complies with the Sec-
ond Amendment. 2

                                             A.
        The Second Amendment guarantees that “the right of the people to
        _____________________
        2
          In addition to his as-applied challenge, Kimble raises two points that he acknowl-
edges are foreclosed by precedent. First, he maintains that § 922(g)(1) is facially unconsti-
tutional. That position is refuted by Diaz, 116 F.4th at 471–72. Kimble also avers that (g)(1)
exceeds Congress’s power under the Commerce Clause. That theory is similarly fore-
closed. See United States v. Jones, 

, 573 (5th Cir. 2023) (per curiam), cert.
denied, 

 (2024).




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                                      No. 23-50874


keep and bear Arms[] shall not be infringed.” U.S. Const. amend. II. In
2008, the Supreme Court recognized that that amendment codified a pre-
existing, individual right “to use arms in defense of hearth and home.” Dis-
trict of Columbia v. Heller, 

 (2008). But that right “is not
unlimited.” 

. The Court noted that “longstanding prohibitions on
the possession of firearms by felons and the mentally ill,” for example, are
“presumptively lawful.” 

 at 626–27 & n.26.
        The Supreme Court “revisited and refined” Heller over a decade
later, instructing courts to employ a two-step framework to analyze whether
a particular firearm regulation violates an individual’s right to keep and bear
arms. Diaz, 

; see Bruen, 

. First, a court asks
whether the Second Amendment’s plain text covers the behavior the govern-
ment seeks to regulate, in which event the Constitution presumptively pro-
tects that conduct. Bruen, 

. Second, if the individual’s actions
are covered by the amendment’s text, “[t]he government must then justify
its regulation by demonstrating that it is consistent with the Nation’s histori-
cal tradition of firearm regulation.” 

 Only if the government meets that
burden “may a court conclude that the individual’s conduct falls outside the
Second Amendment’s unqualified command.” 

 (quotation omitted). 3
        As to the first inquiry, “[t]he plain text of the Second Amendment
covers the conduct prohibited by § 922(g)(1).” Diaz, 

. That
is because convicted felons are “unequivocally among ‘the people’ protected
by the Second Amendment.” United States v. Schnur, 

 (5th
        _____________________
        3
           The Supreme Court reaffirmed Bruen’s framework two years later in United
States v. Rahimi, 

 (2024). There, the Court noted that the government need
not identify a “historical twin” to justify a modern-day regulation, or even a single analo-
gous historical law, because multiple historical analogues “[t]aken together” can demon-
strate that a modern regulation has a sufficiently analogous “why” and “how” to historical
firearms restrictions to satisfy the Bruen test. See Rahimi, 602 U.S. at 698–99.




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                                    No. 23-50874


Cir. 2025) (citing Diaz, 

). The government thus has the bur-
den of showing that disarming an individual based on his felon status is
“consistent with the Nation’s historical tradition.” 

       Our post-Bruen framework for assessing whether a § 922(g)(1) con-
viction accords with the nation’s historical tradition was first set out in Diaz,

, in which a defendant with a felony conviction for vehicle
theft challenged his (g)(1) conviction as inconsistent with the Second
Amendment. In Diaz, we began by recognizing that Bruen abrogated our
precedents upholding the constitutionality of (g)(1) in all its applications. See

. We thus no longer reject Second Amendment challenges to (g)(1)
categorically, instead permitting “as-applied challenges by defendants with
different predicate convictions” from Diaz’s convictions. 

 at 470 n.4. 4
The question each as-applied challenge raises is whether “the government
[can] demonstrate that the Nation has a longstanding tradition of disarming
someone with a criminal history analogous to” the challenger. 

.
       Our caselaw recognizes three categories of offenses that doom a defen-
dant’s as-applied challenge to (g)(1): theft, violence, and violating the terms
of one’s release by possessing arms while on parole. First, in Diaz, we held
that the defendant’s as-applied challenge failed because Founding-era ana-
logues to Diaz’s predicate felony such as horse theft were subject to the death
penalty, conveying that “our country has a historical tradition of severely
punishing people like Diaz who have been convicted of theft.” 

 at 468–69.
Therefore, the lesser punishment of lifelong disarmament imposed by (g)(1)
accorded with the Second Amendment. 

 at 469–70.
       Second, in Schnur, 

, we considered an as-applied

       _____________________
       4
         That approach contrasts with some other circuits. See Schnur, 

(Higginson, J., concurring) (listing cases).




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challenge to a (g)(1) conviction brought by a defendant whose predicate fel-
onies included “aggravated battery causing great bodily injury.” We upheld
the conviction because “our caselaw suggests that there are historical ana-
logues demonstrating our Nation’s longstanding tradition of disarming per-
sons with a violent criminal history analogous to Schnur’s.” 

 (cit-
ing, inter alia, United States v. Bullock, 

, 185 (5th Cir. 2024) (per
curiam)). We thus held that “Schnur’s felony conviction for a ‘crime of vio-
lence’ indicates that he poses a threat to public safety and the orderly func-
tioning of society,” and the “regulation of such person’s ability to possess a
firearm” accords with the nation’s history of punishment of those who have
been convicted of violent offenses. 

.
         Finally, in United States v. Giglio, we upheld a (g)(1) conviction where
the defendant was found armed while still serving his sentence on supervised
release—again because, historically, “convicts could be required to forfeit
their weapons and were prevented from reacquiring arms until they had fin-
ished serving their sentences.” 

 (5th Cir. 2025) (citation
omitted); see also United States v. Contreras, 

, 732–33 (5th Cir.
2025).
         In summary, our caselaw establishes that if a defendant’s predicate
felony involves theft or violence, his as-applied challenge to § 922(g)(1) will
fail. Similarly, if a defendant is caught possessing a gun while out on super-
vised release for a prior felony sentence, his as-applied challenge will also fail.
         The novel question raised by Kimble’s appeal is whether a predicate
drug-trafficking felony also justifies permanent disarmament under (g)(1)
even after the defendant has served his full sentence. We must hold the gov-
ernment to its heavy burden of showing that our history supports Kimble’s
lifetime disarmament under (g)(1), because the Second Amendment “is not
‘a second-class right.’” Bruen, 

 (quoting McDonald v. City of




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                                      No. 23-50874


Chicago, 

 (2010)).

                                            B.
        The government advances two theories to support its contention that
§ 922(g)(1)’s lifetime disarmament is constitutional as applied to Kimble.
First, the government suggests that Kimble’s predicate felony is analogous
to Founding-era felonies punishable by death or estate forfeiture such as the
knowing receipt of a stolen horse or the forgery of public securities. We reject
that notion because it stretches the analogical reasoning prescribed by Bruen
too far. Next, the government avers that Kimble can be disarmed for life
because drug trafficking is an intrinsically dangerous felony, and legislatures
can disarm those who pose a threat to the safety of others. We accept that
approach and hold that (g)(1) is constitutional as applied to defendants with
predicate felonies for drug-trafficking offenses because of the intrinsic vio-
lence of the drug trade.

                                            1.
        In Diaz, 116 F.4th at 469–70, we held that if a felon’s predicate offense
“would have led to capital punishment or estate forfeiture” at the Founding,
then § 922(g)(1)’s permanent disarmament passes constitutional muster
because it “fits within this tradition of serious and permanent punishment.”
The government invokes that ruling to urge that Kimble’s (g)(1) conviction
is constitutional because his drug-trafficking convictions echo historical
crimes that “carried serious and permanent punishment at the founding.”
Specifically, the government invokes three types of crimes punishable by
death or estate forfeiture: (1) the knowing receipt of a stolen horse, 5 (2) theft
        _____________________
        5
         See 6 William Waller Hening, The Statutes at Large; Being a
Collection of All the Laws of Virginia from the First Session of
the Legislature, in the Year 1619, p. 130 (1819) (1748 law). That law provided
that “any person or persons [who] shall receive, or buy, any horse that shall be feloniously




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                                         No. 23-50874


of mail, 6 and (3) counterfeiting and forgery of public securities. 7 The gov-
ernment maintains that those laws “establish a historical tradition of severely
punishing people convicted of crimes involving the creation, possession, or
distribution of illicit goods.” 8
        To succeed, the government must show that the historical laws it
offers as analogues are “relevantly similar” to § 922(g)(1), meaning the his-
torical laws and the challenged regulation share a common “why” and
“how.” Daniels, 

. In other words, the government’s prof-
fered laws must both (1) address a comparable problem (the “why”) and
(2) place a comparable burden on the right-holder (the “how”). 

 Under
Diaz, 

, laws punishing serious crimes with death or estate
forfeiture satisfy the “how” inquiry because those laws “achieved their goals

        _____________________
taken, or stolen, from any other person, knowing the same to be stolen; or shall harbour or
conceal any horse-stealer, knowing him, her, or them to be so, such person or persons . . .
shall incur and suffer the pain of death, as a felon convict.” 

        6
          See An Act to Establish the Post Office and Post Office and Post Roads within the
United States, § 17, 

, 237 (1792). That law provided that “if any person or per-
sons shall rob any carrier of the mail of the United States, . . . such offender or offenders
shall, on conviction thereof, suffer death.” 

        7
           See, e.g., An Act for the Punishment of Certain Crimes Against the United States,

, 115 (1790) (“[I]f any person or persons shall falsely make, alter, forge or counter-
feit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly
act or assist in the false making, altering, forging or counterfeiting any certificate, indent,
or other public security of the United States, . . . with intention to defraud any person,
knowing the same to be false, altered, forged or counterfeited, and shall be thereof con-
victed, every such person shall suffer death.”); Act of Apr. 18, 1786, 2 Laws of the State of
New York 253, pp. 260–61 (1886) (punishing counterfeiting bills of credit with estate for-
feiture, hard labor, and branding); 9 Hening, supra note 5, p. 302 (1821) (1777 law) (pun-
ishing forgery with estate forfeiture).
        8
          At oral argument, the government referenced additional laws concerning tobacco
smuggling. We need not consider that proffered analogue because new arguments or legal
theories raised for the first time at oral argument are forfeited. See Shah v. Azar, 

, 994 n.19 (5th Cir. 2019).




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                                     No. 23-50874


by permanently punishing offenders, as does § 922(g)(1).”
       The closer question is whether the proffered laws pass the “why”
test—that is, whether they “address a comparable problem” as does (g)(1).
Daniels, 

. Answering that question—i.e., “deciding whether
a conceptual fit exists between the old law and the new”—“requires the
exercise of both analogical reasoning and sound judgment.” 

 (quoting
United States v. Connelly, 

 (5th Cir. 2024)).
       We begin by considering the purpose of the laws underlying Kimble’s
predicate offenses. See Diaz, 

. Kimble’s 2012 felony convic-
tion resulted from his violation of the Texas Controlled Substances Act,

(a), 481.115(a). The
purpose of that law, first enacted in 1973, is “to prevent drug trafficking and
drug dealing.” One 1980 Pontiac v. State, 

 (Tex. 1986).
Similarly, Kimble’s 2015 felony conviction resulted from his possession with
intent to distribute a controlled substance in violation of the federal Con-
trolled Substances Act (“CSA”), 

(a)(1) & (b)(1)(C). One of
the “main objectives” of that statute was “to control the legitimate and ille-
gitimate traffic in controlled substances.” Gonzales v. Raich, 

(2005). As applied to Kimble, then, the “problem” that the laws underlying
Kimble’s (g)(1) conviction seek to address is the use and sale of addictive
drugs. Daniels, 

. 9
       The historical laws invoked by the government, by contrast—namely,

       _____________________
       9
          See also David E. Pozen, The Constitution of the War on Drugs 12
(2024). Professor Pozen notes that, one year after signing the CSA into law, President
Nixon declared that drug abuse was “America’s public enemy number one,” a statement
often seen as inaugurating the “war on drugs.” 

 (footnote omitted). The CSA in turn
built on President Eisenhower’s “new war on narcotics addiction” and the Narcotics Con-
trol Act of 1956, a forerunner to the CSA that stiffened drug-trafficking penalties. 

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                                      No. 23-50874


colonial Virginia’s law making it a felony knowingly to receive a stolen horse,
and other laws punishing mail theft and counterfeiting with death or estate
forfeiture—all concern theft, fraud, or deceit. The government avers that
the modern and historical laws both advance a common goal of eliminating
traffic in illicit goods, and that is true in a sense: Legislatures have deemed
both stolen horses and vials of drugs unlawful items. But extracting the gov-
ernment’s proposed maxim from those historical laws—that legislatures can
severely punish any individual caught with illicit goods—hinges on engaging
in an unduly high level of generality. Under the government’s theory, Con-
gress could outlaw the possession of any quotidian object and then claim that
all those caught possessing it lose their Second Amendment rights forever.
We “must be careful not to read a principle at such a high level of generality
that it waters down the right,” Rahimi, 

 (Barrett, J., concur-
ring), and “a shifting benchmark” such as possession of any item deemed
illicit “should not define the limits of the Second Amendment,” Diaz,

. 10
        In short, the government’s proffered historical analogues are not “rel-
evantly similar” to the modern state and federal drug-trafficking laws under-
lying Kimble’s predicate felony convictions. Bruen, 

. The gov-
ernment is not required to identify “a historical twin” to justify modern-day
gun regulations. 

. But its contention—that historical laws severely

        _____________________
        10
           See also United States v. Jackson, 

, 660 (8th Cir. 2024) (Stras, J.,
dissenting from the denial of reh’g en banc) (questioning what would happen if a legislature
made the failure to return a library book a felony). Under the government’s theory, if a
state enacted such a law, anyone caught with an overdue library book could be disarmed for
life because such a book would now be contraband. Detective Bookman’s passion for bring-
ing library scofflaws to justice notwithstanding, we are skeptical that Jerry Seinfeld could
suffer such a fate consistent with the Second Amendment. See Seinfeld: The Library Cop
(NBC         television      broadcast      Oct.      16,      1991),       available     at
https://www.youtube.com/watch?v=D9tP9fI2zbE.




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                                  No. 23-50874


punishing recipients of stolen goods or counterfeit securities justifies lifetime
disarmament for individuals today convicted of selling illicit drugs—
stretches the analogical reasoning prescribed by Bruen and Rahimi too far.
See Connelly, 

.

                                       2.
       The government next reasons that the nation’s history establishes a
tradition of disarming those whose past criminal conduct evinces a special
danger of misusing firearms. Kimble’s record of drug trafficking, the govern-
ment avers, underscores that he is the sort of dangerous individual that
legislatures have long disarmed. We agree.
       The Second Amendment allows Congress to disarm classes of people
it reasonably deems dangerous, and § 922(g)(1)’s prohibition on gun posses-
sion by individuals convicted of drug-trafficking felonies enacts such a dis-
armament regime consistent with Bruen’s “why” and “how” test.
       Class-wide disarmament accords with both history and precedent.
“[G]overnments in England and colonial America long disarmed groups that
they deemed to be dangerous.” United States v. Williams, 

(6th Cir. 2024). Because “[s]uch populations, the logic went, posed a funda-
mental threat to peace and thus had to be kept away from arms . . . govern-
ments labeled whole classes as presumptively dangerous.” 

 We acknowl-
edged that history in Connelly, 

, concluding that the “undeni-
able throughline” in our nation’s history is that “Founding-era governments
took guns away from those perceived to be dangerous.” Further, “history
and tradition support Congress’s power to strip certain groups of” the right
to bear arms. Diaz, 

 (emphasis added) (quoting Kanter v.
Barr, 

 (7th Cir. 2019) (Barrett, J., dissenting)). In short,
“Congress is entitled to make categorical judgments.” Vidal v. Elster,




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                                         No. 23-50874

, 319 (2024) (Barrett, J., concurring in part). 11
        But that is not the end of the analysis. Although Congress can label
certain classes of people—such as felons—dangerous, courts cannot grant
those determinations blanket deference because the “shifting benchmark” of
felony status “should not define the limits of the Second Amendment.”
Diaz, 

. 12 Instead, judges must determine whether the gov-
ernment has identified a “class of persons at the Founding who were ‘dan-
gerous’ for reasons comparable to” those Congress seeks to disarm today.
Connelly, 

. In other words, the question before us is a familiar
one: Is a law that disarms for life individuals with drug-trafficking felonies
consistent with the nation’s history of firearm regulation?
        Once again, history and precedent suggest the answer is yes. The gov-
ernment invokes much of the same historical evidence that it did in Connelly
to support its view that “persons whom Congress deems ‘dangerous’ can
have their Second Amendment rights stripped,” Connelly, 117 F.4th at 277—
namely, English laws disarming political and religious dissidents and Ameri-
can statements and practices suggesting that dangerous individuals could
lose their Second Amendment rights. 13 We rejected those analogies in Con-
        _____________________
        11
          See also Range v. Att’y Gen. United States, 

, 255–67 (3d Cir. 2024)
(Krause, J., concurring) (cataloguing categorical disarmament laws from the English
Restoration to the American Gilded Age).
        12
            See also Folajtar v. Att’y Gen. of the United States, 

 (3d Cir. 2020)
(Bibas, J., dissenting) (noting that because “extreme deference gives legislatures unreview-
able power to manipulate the Second Amendment by choosing a label,” courts “must not
reflexively defer to that label when a fundamental right is at stake”).
        13
          See, e.g., City of London Militia Act 1662, 13 & 14 Car. 2, c. 3, § 13 (English law
disarming potential dissidents); An Act for Constituting a Council of Safety (Oct. 11,
1777), 1777 N.J. Laws ch. 40, § 20, p. 90 (New Jersey law permitting the disarmament of
those deemed dangerous); 2 Bernard Schwartz, The Bill of Rights: A Documen-
tary History 665 (1971) (proposed amendment presented at the Pennsylvania ratifying
convention stating that “no law shall be passed for disarming the people or any of them




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                                       No. 23-50874


nelly because marihuana users like the defendant in that case were not “dan-
gerous” for reasons comparable to those targeted by the government’s prof-
fered analogues. See id. at 278.
        But the government’s analogues are a closer fit for drug traffickers
than for occasional drug users. The English history invoked by the govern-
ment suggests that while “good subjects” retained their rights to keep and
bear arms, those judged “dangerous to the Peace of the Kingdom” could be
disarmed. 14 The American colonies similarly empowered officials to “take
from such Persons as they shall judge disaffected and dangerous to the pres-
ent Government, all the Arms, Accoutrements and Ammunition which they
own or possess.” 15 The constitutional ratification debates also reflected the
understanding that legislatures could disarm dangerous persons. As Justice
Barrett has observed, the Pennsylvania and Massachusetts ratifying conven-
tions convey that “the scope of founding-era understandings regarding cate-
gorical exclusions from the enjoyment of the right to keep and bear arms . . .
is about threatened violence and the risk of public injury.” Kanter, 

 (Barrett, J., dissenting). That same concern “animated English and


        _____________________
unless for crimes committed, or real danger of public injury from individuals”). English
history is relevant because the Second Amendment “was not intended to lay down a novel
principle but rather codified a right inherited from our English ancestors.” Heller, 

 (quotations omitted).
        14
          See Diarmuid F. O’Scannlain, Glorious Revolution to American Revolution: The
English Origin of the Right to Keep and Bear Arms, 

, 401–
405 (2019) (explaining that the Militia Act of 1662, which permitted the seizure of arms
from those dangerous to the public safety, “continued unabated” even after England’s
Glorious Revolution); see also Rahimi, 

 (invoking the Militia Act of 1662 as
evidence of the government’s ability to disarm the dangerous).
        15
           An Act for Constituting a Council of Safety (Oct. 11, 1777), supra note 13. See
also Williams, 

 (citing that law and concluding that, for the American col-
onists, “disarming dangerous loyalists was a necessary strategy to preserve order”).




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                                       No. 23-50874


early American restrictions on arms possession.” 

        The “undeniable throughline” that Connelly recognized in our
history—that “Founding-era governments took guns away from those per-
ceived to be dangerous,” Connelly, 117 F.4th at 278—accords with (g)(1)’s
rationale for disarming Kimble. Like legislatures in the past that sought to
keep guns out of the hands of potentially violent individuals, Congress today
regards felon drug traffickers as too dangerous to trust with weapons.
        That supposition is well supported by caselaw. The Supreme Court
has long recognized “that drugs and guns are a dangerous combination.”
Smith v. United States, 

 (1993). 16 This circuit has also cred-
ited testimony that “drugs and guns are commonly found together and that
drug dealers use guns to protect their business because of the inherent violence
of the trade.” United States v. Yanez Sosa, 

 (5th Cir. 2008)
(emphasis added). Other circuits have similarly acknowledged that “drug
dealing is notoriously linked to violence.” United States v. Torres–Rosario,

 (1st Cir. 2011) (citations omitted). 17 For those reasons,
numerous judges and scholars have suggested that disarming drug dealers
under (g)(1) “makes sense because their past crimes were inherently danger-


        _____________________
        16
          See also Harmelin v. Michigan, 

 (1991) (Kennedy, J., concurring
in part and concurring in the judgment) (calling the contention that drug-trafficking crimes
are “nonviolent and victimless” “false to the point of absurdity”).
        17
          See also, e.g., United States v. Harper, 

 (7th Cir. 2014) (“[T]he
possession of a firearm by a felon in the context of another offense such as drug trafficking
is inherently more dangerous than mere possession absent such activity.”); United States
v. Barton, 

 (3d Cir. 2011) (“[O]ffenses relating to drug trafficking and
receiving stolen weapons are closely related to violent crime.”); United States v. Ruiz,

, 881 (8th Cir. 2005) (“Firearms are tools of the drug trade due to the dangers
inherent in that line of work.”); United States v. Diaz, 

 (7th Cir. 1988)
(“[T]he illegal drug industry is, to put it mildly, a dangerous, violent business.”).




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                                      No. 23-50874


ous.” Folajtar, 

 (Bibas, J., dissenting). 18
        The Legislative and Executive Branches also associate drug trafficking
with violence. In 1986, Congress added the term “drug trafficking crime” to
a related provision in § 922(g)(1)’s statutory scheme “to enhance the ability
of law enforcement to fight violent crime and narcotics trafficking.” 19 Before
that amendment, the provision had referenced only “a crime of violence,”
but on account of “confusion in the courts of appeals about whether drug
trafficking constituted a ‘crime of violence’ under the statute,” the White
House requested that Congress “amend the language of [18 U.S.C.] § 924 to
include drug crimes in light of the fact that criminals involved in drug traf-
ficking may often carry or use firearms during the commission of drug-related
felonies.” 20    Congress complied, and courts thereafter understood the
amended law as “an effort to combat the dangerous combination of drugs and
guns.” Muscarello v. United States, 

 (1998) (quotations
        _____________________
        18
           See also Williams, 

 (“A person convicted of a crime is ‘danger-
ous,’ and can thus be disarmed, if he has committed . . . a crime that inherently poses a
significant threat of danger, including . . . drug trafficking.”); C. Kevin Marshall, Why
Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 730 (2009)
(suggesting that drug trafficking crimes are “leading candidates” to be added to the cate-
gory of “crimes of violence” that have traditionally led to the perpetrator’s disarmament).
        19
           H.R. Rep. No. 99-495, at 1 (1986) (summarizing the purpose of the Federal
Firearms Law Reform Act of 1986). The amended provision established a mandatory mini-
mum sentence for “any person who, during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm.” 

(c)(1)(A).
        20
           Lynn Marsella, Something About Carry: Supreme Court Broadens the Scope of
18 U.S.C. 924(c), 

, 975 (1999) (quotation omitted).
John Bolton, the Assistant Attorney General at the time, requested that Congress amend
the law because a recent decision held that § 924(c) “was not intended to apply to narcotics
offenses.” 132 Cong. Rec. S. 7941 (1986) (letter from John R. Bolton to Sen. Bumpers)
(citing United States v. Diaz, 

 (2d Cir. 1985)). One Senator thus described
the amended law as “ma[king] clear Congress’s desire to ‘treat armed drug trafficking as
seriously as we do other armed felonies threatening public safety.’” Marsella, supra,
at 975–76 (quoting 131 Cong. Rec. S. 34124 (1985) (statement of Sen. D’Amato)).




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                                      No. 23-50874


omitted).
        In short, the Legislative, Executive, and Judicial Branches agree that
drug trafficking is an inherently dangerous activity, and Congress has re-
sponded to that threat by disarming convicted drug traffickers via
§ 922(g)(1). That decision does not violate the Second Amendment. Be-
cause Kimble’s predicate felony conviction “indicates that he poses a threat
to public safety and the orderly functioning of society,” his (g)(1) conviction
is “consistent with this Nation’s historical tradition of firearm regulation and
punishment of people who have been convicted of violent offenses.” Schnur,

 (quotation omitted). 21
                                          ***
        We “conclude only by emphasizing the narrowness” of our decision.
Daniels, 

. Kimble’s conviction accords with the Second
Amendment because Congress can categorially disarm individuals convicted
of violent felonies like drug trafficking. That conclusion does not depend on
an individualized assessment that Kimble is dangerous. We thus do not
embrace the view that courts should “look beyond” a defendant’s predicate
conviction “and assess whether the felon’s history or characteristics make
him likely to misuse firearms.” Contra Pitsilides v. Barr, 

, 211–
12 (3d Cir. 2025) (quotation omitted). The relevant consideration is a defen-
dant’s “prior convictions that are punishable by imprisonment for a term
exceeding one year,” not unproven conduct charged contemporaneously

        _____________________
        21
          As should be clear from our review of the statutory text, history, and subsequent
construction of §§ 922(g)(1) and 924(c), our decision does not prescribe blanket deference
to Congress’s determination that anyone convicted of a felony is per se dangerous.
Although legislatures may be entitled to some deference as to where the line between
dangerous and nondangerous felonies is properly drawn, courts must “police the outer
bounds of proper legislative discretion.” See William Baude & Robert Leider, The General-
Law Right to Bear Arms, 

, 1511 n.264 (2024).




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                                 No. 23-50874


with a defendant’s (g)(1) indictment or prior conduct that did not result in a
felony conviction. Diaz, 

 (quotation omitted).
       Kimble’s predicate convictions for drug trafficking convey that he
belongs to a class of dangerous felons that our regulatory tradition permits
legislatures to disarm. On that basis, Kimble’s § 922(g)(1) conviction is
AFFIRMED.




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                                 No. 23-50874


       James E. Graves, Jr., Circuit Judge, concurring in part and in the
judgment.
       Based on the facts of Kimble’s case, I agree with the majority that
Kimble’s conviction should be affirmed. However, I disagree with the
majority’s determination that it need not conduct an individualized
assessment pursuant to his as applied challenge. Thus, I respectfully concur
in part and in the judgment.
       The majority affirms Kimble’s conviction “[b]ecause disarming drug
traffickers accords with the nation’s history and tradition of firearm
regulation.” In so doing, the majority states that it rejects the government’s
argument that Kimble’s predicate felony is analogous to Founding-era
felonies punishable by death or estate forfeiture because it stretches the
analogical reasoning prescribed by Bruen too far. Instead, the majority
accepts the government’s argument that drug trafficking is an intrinsically
dangerous or violent felony. The majority concludes that 

(g)(1) “is constitutional as applied to defendants with predicate felonies
for drug trafficking offenses because of the intrinsic violence of the drug
trade.”
       In its discussion of whether drug traffickers are a class of people
deemed dangerous and historically disarmed, the majority states that
“Congress today regards felon drug traffickers as too dangerous to trust with
weapons,” and sets out various cases as support for such a proposition. That
authority includes the following pre-Bruen cases:

•      Smith v. United States, 

 (1993). This case involved
       a conviction under 

(c)(1), rather than § 922(g)(1).
       The issue was whether the trade of an automatic weapon for cocaine
       was considered the use of a firearm during a drug trafficking crime for
       purposes of that statute. The portion quoted by the majority comes
       from the following sentence: “When Congress enacted the current




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                                       No. 23-50874


        version of § 924(c)(1), it was no doubt aware that drugs and guns are
        a dangerous combination.” Id. at 240. The Supreme Court further
        said that Congress would have no reason to intend for courts “to draw
        a fine metaphysical distinction between a gun’s role in a drug offense
        as a weapon and its role as an item of barter; it creates a grave
        possibility of violence and death in either capacity.” Id. The
        significant factor was a gun’s actual role in a drug trafficking offense.

•       United States v. Yanez Sosa, 

 (5th Cir. 2008). This
        case also involved a conviction for possession of a firearm(s) in
        furtherance of a drug trafficking crime under 

(c)(1)(A), rather than § 922(g)(1), and the actual presence of a
        gun(s) in a drug trafficking crime. 1 Id. at 198, 202. Significantly, this
        court also reiterated there that, “[t]he critical question, therefore, is
        whether a particular defendant possessed the firearm in furtherance
        of the drug trafficking offense, not whether drug dealers generally use
        guns to protect themselves and their drugs.” Id. at 202 (internal
        marks and citation omitted). Further, the portion quoted by the
        majority was actually the court’s recitation “in substance” of the
        testimony rather than the actual testimony. Id.

•       United States v. Torres-Rosario, 

 (1st Cir. 2011). While
        the First Circuit did say that “drug dealing is notoriously linked to
        violence,” this was also a case where the defendant was still dealing
        drugs, i.e., heroin and cocaine, which were found in the room with the
        loaded gun. 

.

•       Folajtar v. Att’y Gen. of the United States, 

 (3d Cir.
        2020) (Bibas, J. dissenting). As acknowledged by the majority, it relies
        on a statement from the dissenting opinion. Further, this case
        involved a challenge to the application of 

(g)(1) to an


        _____________________
        1
        Sosa also had a count for possession of a firearm by an illegal alien under 

(g)(5) and 924(a)(2).




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                                No. 23-50874


      individual convicted of tax fraud. Regardless, a post-Bruen Third
      Circuit case is discussed below.

•     Harmelin v. Michigan, 

 (1991). The majority
      references a separate opinion in which Justice Kennedy called the
      contention that drug trafficking crimes are nonviolent “false to the
      point of absurdity.” 

 (Kennedy, J., concurring in part and
      concurring in the judgment). This statement was in reference to a
      defendant’s Eighth Amendment disproportionate sentence claim
      when he was convicted of possession with intent of over 1.5 pounds of
      pure cocaine which would yield some “32,500 and 65,000 doses.” 

      Also, Justice Kennedy went on to discuss how “drug users” commit
      crime to buy more drugs or “because of drug-induced changes in
      physiological functions, cognitive ability, and mood,” etc. 

 This
      pertains to additional discussion below regarding this court’s attempt
      to distinguish between drug users and drug traffickers.

•     United States v. Harper, 

 (7th Cir. 2014). The reference
      is to the statement that, “the possession of a firearm by a felon in the
      context of another offense such as drug trafficking is inherently more
      dangerous than mere possession absent such activity.” 

. The
      remainder of that sentence said: “[A]nd that such a pairing elevates
      the danger of such firearm being actually used.” 

 In other words,
      possessing a firearm while committing a drug trafficking offense is
      inherently more dangerous than merely possessing a firearm or even
      merely possessing drugs. It is the “pairing” that “elevates the
      danger.” 

•     United States v. Barton, 

 (3d Cir. 2011). The
      reference is to the statement that “offenses relating to drug trafficking
      and receiving stolen weapons are closely related to violent crime.” 

      Notwithstanding that Barton had both drug and gun convictions, the
      court also significantly reiterated that “[t]o raise a successful as-
      applied challenge, Barton must present facts about himself and his
      background that distinguish his circumstances.” 

 Additionally, a
      post-Bruen Third Circuit case is discussed below.




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                                   No. 23-50874


•      United States v. Ruiz, 

, 881 (8th Cir. 2005). The majority
       references a statement that “[f]irearms are tools of the drug trade due
       to the dangers inherent in that line of work.” Id. But the context of
       the statement reveals that multiple guns and ammunition were
       discovered during searches of various locations pursuant to a drug
       trafficking case. The court was analyzing whether the evidence of the
       guns should be excluded based on arguments that they had no
       connection to the drug activity. Id.

•      United States v. Diaz, 

 (7th Cir. 1988). The relevant
       conviction in this case was use of a firearm in relation to the
       commission of a drug trafficking crime in violation of § 924(c)(1).
       These pre-Bruen cases neither provide controlling authority nor are
they sufficiently similar to provide persuasive authority for the majority’s
conclusion that it need not conduct an individualized assessment. The
majority also cites Williams, 

, which was post-Bruen. However,
the quoted portion must be read in context. In that case, the Sixth Circuit
reiterated that “history reveals that legislatures may disarm groups of people,
like felons, whom the legislature believes to be dangerous—so long as each
member of that disarmed group has an opportunity to make an individualized
showing that he himself is not actually dangerous.” 

 (emphasis
added). The court went on to say:
               A person convicted of a crime is “dangerous,” and can
       thus be disarmed, if he has committed (1) a crime “against the
       body of another human being,” including (but not limited to)
       murder, rape, assault, and robbery, or (2) a crime that
       inherently poses a significant threat of danger, including (but
       not limited to) drug trafficking and burglary. An individual in
       either of those categories will have a very difficult time, to say the
       least, of showing he is not dangerous.
Williams, 

 (emphasis added to reflect that even someone
convicted of a drug trafficking offense would have the opportunity to show




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                                      No. 23-50874


he is not dangerous). The Sixth Circuit there also said that “district courts
need not find a ‘categorical’ match to a specific common-law crime to show
that a person is dangerous.” Williams, 

. Instead “district
courts should make fact-specific dangerousness determinations after taking
account of the unique circumstances of the individual, including details of his
specific conviction.”        

   “Finally, when considering an individual's
dangerousness, courts may evaluate a defendant’s entire criminal record—
not just the specific felony underlying his section 922(g)(1) prosecution.” 

        Citing United States v. Daniels (Daniels II), 124 F.4th at 976, the
majority emphasizes “the narrowness” of its decision and concludes that
“Kimble’s conviction accords with the Second Amendment because
Congress can categorically disarm individuals convicted of violent felonies
like drug trafficking.” 2 The majority then states “[t]hat conclusion does not
depend on an individualized assessment that Kimble is dangerous. We thus
do not embrace the view that courts should ‘look beyond’ a defendant’s
predicate conviction ‘and assess whether the felon’s history or
characteristics make him likely to misuse firearms.’ Contra Pitsilides v. Barr,

 (3d Cir. 2025)) (quotation omitted).” The majority
further opines that the relevant consideration is simply the defendant’s
“‘prior convictions that are punishable by imprisonment for a term
exceeding one year,’ not unproven conduct charged contemporaneously with
a defendant’s (g)(1) indictment or prior conduct that did not result in a felony
        _____________________
        2
           In Daniels I, this court said “[w]e conclude only by emphasizing the narrowness
that holding” that Daniel’s conviction under § 922(g)(3) is “inconsistent with our ‘history
and tradition’ of gun regulation.’” United States v. Daniels (Daniels I), 

,
vacated and remanded, 

 (2024). On remand, this court concluded that
§ 922(g)(3) was unconstitutional as applied to Daniels unless the government was able to
show that he was disarmed for something other than occasional or habitual marijuana use.
Daniels II, 124 F.4th at 975. This court also reiterated the “narrowness” of the decision.
Id. at 976.




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                                 No. 23-50874


conviction.” (citing United States v. Diaz, 

 (5th Cir. 2024)).
But, in Diaz, this court was merely quoting the relevant statute in the initial
determination of whether there was a historical analogue, as follows: “For
the purposes of assessing Diaz’s predicate offenses under § 922(g)(1), we
may consider prior convictions that are ‘punishable by imprisonment for a
term exceeding one year.’ See § 922(g)(1).” Id. at 467. The Diaz court said
nothing about unproven or prior conduct, and it was not assessing whether
Diaz was dangerous.
       While the majority acknowledges its disagreement with the Third
Circuit in Pitsilides, it is also in disagreement with the Sixth Circuit, as
discussed above in Williams. The majority cites no authority in support of
rejecting an individual assessment. The majority concludes that there is no
analogous Founding-era felony to support disarmament. Further, violence is
not an element of possession with intent. Yet the majority then makes the
blanket determination that drug trafficking is an intrinsically dangerous
felony, and § 922(g)(1) is “constitutional as applied to defendants with
predicate felonies for drug-trafficking offenses because of the intrinsic
violence of the drug trade.” Then as support, the majority largely relies on
pre-Bruen cases involving both drugs and guns, except for the post-Bruen
cases that say there should be an individual assessment that considers the
record in determining dangerousness that it now explicitly rejects.
       As the majority acknowledges, this court concluded that 

(g)(3) could not constitutionally apply to a defendant based solely on
“habitual or occasional drug use.” See United States v. Connelly, 

 (5th Cir. 2024). In other words, marijuana users and possessors are
not necessarily dangerous. Typically, the determination of whether an
offense is possession or possession with intent simply comes down to the
amount of drugs. There is no basis for a conclusion that drug users and
possessors are categorically not “intrinsically dangerous” but drug



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                                 No. 23-50874


possessors with intent categorically are “intrinsically dangerous.” The cases
involving drug users often involve weapons.          Users of illicit drugs are
criminals who often associate with other criminals, like the drug traffickers
they keep in business, and they often do things that criminals do that cause
danger – just like Justice Kennedy discussed in Harmelin as referenced above.
They also have just as much reason, if not more, to protect their stash as a
drug trafficker.
       Further, there occasionally are cases involving people who were
convicted of possession with intent offenses that did not involve a weapon or
any violence. An example might be a situation where a young person, who
has never been violent and was not armed, accepted a job to drive a car from
one location to another without knowing it contained a hidden compartment
full of drugs. That young person could then be disarmed for life without any
chance of ever proving he was not a danger. Yet, a habitual drug user who
continues to keep the drug traffickers in business would not be disarmed for
life. There is no basis for such a disparity. For these reasons, I disagree with
the majority’s rejection of an individual assessment of dangerousness. Thus,
I respectfully concur in part and in the judgment.




                                      24