On January 27, in United States v. Hembree, the Fifth Circuit held that the federal felon firearm ban (18 USC 922(g)(1)) based on a conviction for simple possession of methamphetamine violates the Second Amendment. Coincidentally, on March 2 the Supreme Court will hear oral argument in another case that came from the Fifth Circuit, United States v. Hemani, which concerns whether the federal firearm ban by an unlawful user of drugs (18 USC 922(g)(3)) violates the Second Amendment.
The opinion by Judge Higginson, joined by Judge Willett and Judge Engelhardt, is rendered with the backdrop that the Fifth Circuit has upheld the felon-in-possession ban facially, but has recognized the viability of as-applied challenges. Given that the government sustained its burden to show the ban's facial constitutionality, it argued that the burden shifted to Hembree to demonstrate its unconstitutionality as applied to him. The court relegated that argument to a footnote citing Rahimi: "It is the government's burden to demonstrate that the challenged regulation is 'relevantly similar to laws our tradition is understood to permit.'"
While "in some instances, we have remanded to allow party presentation of history and discussion of intervening caselaw before the district court," here "the government provided robust historical discussion in its briefing and specifically 'offer[ed] analogues to other felonies,' for our review as well." It's a good sign that litigants have learned to proffer what they deem to be the historical analogues required by Bruen, given the initial criticisms of the text-history method that lawyers and judges are incapable to doing anything more than analysis of means-ends scrutiny.
