Full Opinion

United States Court of Appeals For the Eighth Circuit ___________________________ No. 25-2532 ___________________________ United States of America Plaintiff - Appellee v. Eric Gaten Defendant - Appellant ____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________ Submitted: September 21, 2026 Filed: November 4, 2026 ____________ Before GRUENDER, KELLY, and KOBES, Circuit Judges. ____________ KOBES, Circuit Judge. Missouri police found Eric Gaten with a gun once in 2020 and twice in 2022. The Government charged him with three counts of violating 18 U.S.C. § 922(g)(1). Section 922(g)(1) makes it illegal for a felon—someone who was convicted of a crime punishable by a term of imprisonment exceeding one year—to knowingly possess a firearm that was in or affected interstate commerce. See United States v. Harris, 964 F.3d 718, 723 (8th Cir. 2020). Gaten moved to dismiss the indictment, arguing § 922(g)(1) is an unconstitutional infringement of his Second Amendment right to keep and bear arms. He also said § 922(g)(1) violates the Fifth Amendment’s guarantee of equal protection because it can treat two convicted criminals who did the same thing differently. The district court 1 denied Gaten’s motion. We affirm. We review the district court’s decision to deny Gaten’s motion to dismiss the indictment de novo. United States v. Anderson, 771 F.3d 1064, 1067 (8th Cir. 2014). We also review challenges to the constitutionality of a federal statute de novo. Id. at 1066. Gaten’s first argument is that § 922(g)(1) unfairly burdens his Second Amendment right to keep and bear arms and so is unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Gaten concedes that this argument is “foreclosed by circuit precedent,” but he wants to preserve it for further review. Gaten is correct that his first argument fails. In United States v. Jackson, we held that “§ 922(g)(1) is not unconstitutional” as applied to the similarly situated defendant in that case because the law is “consistent with the Nation’s historical tradition of firearm regulation.” 110 F.4th 1120, 1125–26 (8th Cir. 2024). We further held that “there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).” Id. at 1125. That cut off as-applied constitutional challenges to the statute based on the Second Amendment. Then, in United States v. Cunningham, we held more broadly that § 922(g)(1)’s “longstanding prohibition on possession of firearms by felons is constitutional.” 114 F.4th 671, 675 (8th Cir. 2024). That foreclosed facial constitutional challenges to the statute based on the 1 The Honorable John A. Ross, United States District Judge for the Eastern District of Missouri, adopting the report and recommendation of the Honorable John M. Bodenhausen, United States Magistrate Judge for the Eastern District of Missouri. -2- Second Amendment. Together, Jackson and Cunningham dispose of Gaten’s first argument, something we cannot revisit here. Anderson, 771 F.3d at 1066–67. Gaten’s alternative argument is that § 922(g)(1) runs afoul of the Fifth Amendment, which the Supreme Court held “contains within it the prohibition against denying to any person the equal protection of the laws.” United States v. Windsor, 570 U.S. 744, 774 (2013). The way Gaten sees it, the law’s method of deciding what felonies count for being a “felon” in possession of a gun is incompatible with the Fifth Amendment’s promise of equal protection. See 18 U.S.C. § 921(a)(20) (“What constitutes a [qualifying felony conviction] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.”). He argues that because one state may punish an act as a misdemeanor while another state might punish the same act as a felony, § 922(g)(1) treats similar people differently depending on where they were convicted. He says this means that § 922(g)(1) “burdens a fundamental right in explicitly unequal terms.” To the extent Gaten is bringing an as-applied challenge to § 922(g)(1)’s constitutionality under the Fifth Amendment, his guilty plea bars him from doing so. See United States v. Deng, 104 F.4th 1052, 1054 (8th Cir. 2024), cert. denied, 145 S. Ct. 348 (Mem.) (2024). But we read his brief as also making a facial challenge, which “survive[s] a guilty plea,” so we will consider its merits. United States v. Nunez-Hernandez, 43 F.4th 857, 860 (8th Cir. 2022). “A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications.” Bucklew v. Precythe, 587 U.S. 119, 138 (2019). The Supreme Court has deliberately “made facial challenges hard to win.” Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024). To prevail, Gaten would need to “establish that no set of circumstances exists under which [§ 922(g)(1)] would be valid.” United States v. Charles, 159 F.4th 545, 546 (8th Cir. 2025) (emphasis added) (quoting United States v. Rahimi, 602 U.S. 680, 693 (2024)). -3- Gaten does not show that § 922(g)(1) is unconstitutional in every case. His argument depends entirely on comparing various state laws and is limited to situations where a criminal could have been a misdemeanant if convicted in one state but was convicted in another that made them a felon. Under this theory, there is no equal protection violation if a crime is a felony in all 50 states because there would be no relevant disparity. Gaten himself was previously convicted of selling cocaine base, which is a felony in every state. Because § 922(g)(1) “is constitutional as applied to the facts of [Gaten’s] own case,” the law “survives [his] facial challenge.” Rahimi, 602 U.S. at 693, 700. Affirmed. ______________________________ -4-