Drug Conviction as Lifelong Firearms Disqualifier

 U.S. v. Hembree (5th Cir. 2026):

Defendant–Appellant Charles Hembree was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).  He has a single predicate felony conviction: a 2018 conviction for simple possession of methamphetamine.  On appeal, Hembree challenges whether § 922(g)(1) is unconstitutional as applied to him and raises various constitutional challenges to his conviction.  For the reasons explained below, we find Hembree’s conviction unconstitutional as applied and reverse the district court’s conviction. 

This is because under the Bruen standard, there is no tradition under U.S. law of disarming persons for drug abuse.

The government acknowledges that illegal drug possession was “a problem that the [founding-era legislatures] did not perceive” but anchors on the Supreme Court’s statements in Rahimi, which were echoed by our court in Diaz, that “a ʻdead ringer’ for or ʻhistorical twin’ to past regulations” is not required to “pass constitutional muster.”  Instead, the government argues, “what matters is whether founding-era legislatures would have understood their powers to include the ability to pass such a law.”  The government highlights that our court “in Diaz pointed to two aspects of [historical] tradition: laws severely punishing certain crimes at the time of the founding and laws disarming persons who pose a danger with firearms.” Following that approach, the government draws on two bodies of law to justify its use of methamphetamine possession as a predicate felony for § 922(g)(1).  First, it points to “[h]istorical laws authorizing severe punishment for knowing possession of contraband,” arguing that these laws “show that permanent disarmament of those convicted of possessing illicitly obtained goods today, like Hembree, is consistent with the Second Amendment.”  Examples offered by the government include laws punishing the knowing receipt of a stolen horse, the theft of mail, and the counterfeiting and forgery of public securities with death.  Next, it points to “[h]istorical laws disarming dangerous people” and argues that “[d]rug crimes are inherently dangerous, even in situations where a defendant has ʻonly’ been convicted of ʻmere’ drug possession like Hembree, because the possession of narcotics entails the dealing with and enriching of drug traffickers.”  The government further urges that “the facts of the underlying case demonstrate the dangerous nature of narcotics,” but the only facts it points to beyond the mere fact of Hembree’s felony conviction are the facts of the present § 922(g)(1) case.4 Hembree takes a narrower view of the historical analogue.  He cites that, until a century ago, “there was virtually no effective regulation of narcotics in the United States.”  David T. Courtwright, A Century of American Narcotics Policy, in Treating Drug Problems: Volume 2, 1 (Dean R. Gerstein & Henrick J. Harwood, eds., 1992).  Hembree reasons that the “federal government did not even begin criminalizing non-medical drug use until the early Twentieth Century” and opium and other substances were legal.  Further, Hembree posits that “[i]t was not until 1906 that the Pure Food and Drug Act first required that certain substances, such as alcohol, cocaine, and heroin, be accurately labeled, Pub. L. 59-384, 34 Stat. 768, 770 (repealed 1938), and the first ban on possession and distribution came about a decade later.”  Under Diaz, he argues that § 922(g)(1) can only be constitutionally applied to a defendant if “his disqualifying convictions would have been subject to [harsh felony] punishments in the Founding Era.”  Because “conduct similar to possession of methamphetamine was not even criminal, much less subject to the death penalty or forfeiture of estate,” at the Founding, Hembree argues that the government has not met its burden of proving that disarming him is within the tradition of regulations and punishment at the Founding. 

The government argued that drug dealing is an inherently dangerous crime, but Hembree's conviction was for possession, not dealing.