The Supreme Court on Monday, October 5, declined to hear the Justice Department's appeal in United States v. Hembree. The order leaves in place a federal appeals court ruling that the law barring people with felony convictions from having guns could not be used against a Mississippi man whose underlying felony was simple possession of methamphetamine.
The case was one of hundreds the justices turned away on the first order list of the new term, released after their private "long conference" on September 28, SCOTUSblog reported. As usual when it denies review, the Court gave no explanation.
What the Fifth Circuit decided
Charles Hembree was convicted in Mississippi state court in 2018 of possessing methamphetamine, a felony. In 2022, federal prosecutors charged him with being a felon in possession of a firearm. A judge rejected his argument that the charge violated the Second Amendment, and he pleaded guilty while keeping the right to appeal that issue. He was sentenced to six months in prison and three years of supervised release.
On January 27, a panel of the U.S. Court of Appeals for the Fifth Circuit reversed his conviction. Under the Supreme Court's test from the Bruen decision, the government carries what the panel called "the heavy burden to show that the challenged law is relevantly similar to laws that our tradition is understood to permit," according to the opinion.
Judge Stephen Higginson, writing for the panel, concluded that "the government did not meet its burden to prove that history and tradition support simple possession as a valid felony predicate." The court rejected comparisons to founding era laws that punished receiving a stolen horse, theft of mail and counterfeiting public securities. It also said an earlier Fifth Circuit ruling upholding the ban for drug traffickers did not settle a case built on possession alone.
The ruling was narrow. It did not strike down the felon gun law. It held only that the law was unconstitutional as applied to Hembree, and it declined to look at facts beyond his prior conviction, including the government's suggestion that he had dealt drugs. Judge Don Willett wrote a separate concurrence.
The Hemani connection
The government did not ask the justices for a full hearing. It asked them to hold the case until they decided United States v. Hemani and then send it back to the lower court.
The Court decided Hemani in June. It ruled that a federal law barring "habitual" drug users from having guns could not be used to prosecute a Texas man who used marijuana several times a week. CBS News reported that the result was unanimous and that the opinion did not reach other restrictions, including the ban on people convicted of felonies. Justice Neil Gorsuch stressed that the ruling was "a narrow one," SCOTUSblog noted at the time.
Hembree's lawyers argued that Hemani changed nothing for him because it "says nothing about nonviolent felons being categorically and permanently disarmed." By denying review outright instead of sending the case back, the Court left the Fifth Circuit's judgment standing.
What the denial does and does not mean
A denial of review is not a ruling on the merits, and it sets no national precedent. The Fifth Circuit decision binds federal courts in that circuit, but other appeals courts remain free to take a different view of felon gun cases built on nonviolent predicates.
That leaves the larger question open. The Supreme Court has now said that drug use alone, at least the kind at issue in Hemani, cannot justify automatic disarmament. It has not said whether a single nonviolent felony can. For defense lawyers, the Hembree ruling is a road map for as applied challenges that focus on what the prior conviction actually was, not on labels.
For a broader look at how gun laws play out in real cases, see our story on stand your ground, explained by three defense lawyers. It is the kind of case the Two Taps legal panel takes apart on the show.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
