Reported / Citable
Background
Frederick Jerrell Penn, Jr. accumulated two prior felony convictions in Texas state court — a 2021 guilty plea to Prohibited Weapon resulting in two years’ confinement, and a 2023 guilty plea to Theft of Firearm resulting in six months’ confinement. In October 2025, a federal grand jury indicted Penn under 18 U.S.C. § 922(g)(1) and § 924(a)(8) for unlawful possession of a firearm as a convicted felon.
On April 10, 2026, Penn moved to dismiss the indictment on three constitutional grounds: (1) that § 922(g)(1) exceeds Congress’s Commerce Clause authority; (2) that the statute is unconstitutionally vague under the void for vagueness doctrine; and (3) that the statute violates the Second Amendment in light of the Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
The Court’s Holding
Judge Mark T. Pittman denied the motion to dismiss in its entirety. On the Commerce Clause challenge, the court found the argument foreclosed by settled Fifth Circuit precedent consistently upholding § 922(g)(1) as a valid exercise of congressional commerce power, including United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013), and United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001). Penn himself conceded that binding Fifth Circuit authority opposed his position, and he offered no contrary binding authority.
On the vagueness challenge, the court similarly found it foreclosed by recent Fifth Circuit decisions rejecting identical arguments, including United States v. Bonner, 159 F.4th 338 (5th Cir. 2025), and United States v. Landrum, 2026 WL 621047 (5th Cir. Mar. 5, 2026). On the Second Amendment challenge, the court held that Bruen‘s historical-tradition test does not invalidate § 922(g)(1), noting the long colonial and founding-era history of disarming felons and non-law-abiding persons, and that both Heller and Bruen expressly left longstanding felon-disarmament prohibitions undisturbed. The court further ruled that Penn’s facial challenge was foreclosed by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), and United States v. Contreras, 125 F.4th 725 (5th Cir. 2025).
Key Takeaways
- All three of Penn’s constitutional challenges to § 922(g)(1) — Commerce Clause, vagueness, and Second Amendment — were denied, with the court finding each foreclosed by controlling or highly persuasive Fifth Circuit precedent.
- The court reaffirmed that Bruen‘s historical-tradition framework does not undermine felon-in-possession statutes, pointing to colonial-era laws disarming felons and the Supreme Court’s own statements in Heller and Bruen that such prohibitions remain valid.
- A facial challenge to § 922(g)(1) under the Second Amendment is foreclosed in the Fifth Circuit so long as at least one constitutional application of the statute exists, per Diaz and Contreras.
- Defendants who concede that binding circuit precedent forecloses their arguments face an uphill battle absent a circuit split or intervening Supreme Court authority.
Why It Matters
This decision reflects the continuing failure of post-Bruen Second Amendment challenges to § 922(g)(1) in the Fifth Circuit. Despite Bruen‘s reformulation of the constitutional test for firearm regulations, federal courts across the circuit have consistently held that the historical record supports disarming convicted felons, and the Fifth Circuit’s decisions in Diaz and Contreras have effectively closed the door on facial challenges to the statute.
For practitioners, the case underscores that defendants challenging § 922(g)(1) on Second Amendment grounds in the Fifth Circuit must pursue narrower as-applied arguments rather than facial challenges, and must be prepared to distinguish or overcome a substantial body of circuit precedent. The decision also signals that district courts in the Northern District of Texas will continue to apply existing circuit authority unless and until the Supreme Court addresses the felon-disarmament question directly.