Supreme Court Denies DOJ in Fifth Circuit Felon Gun Ban Case

Last updated October 2026 · By Nick Hall, tracks federal firearms prohibitions and Second Amendment petitions at the Supreme Court for USA Gun Shop readers

Quick take: The Supreme Court on October 5 turned down the Justice Department’s petition in the Hembree case, so a Fifth Circuit ruling stands: the federal felon gun ban can’t be applied to a man whose only felony was simple possession of methamphetamine. The denial sets no national precedent, and the ruling binds federal courts in Texas, Louisiana and Mississippi only.

• Ruling: On October 5, 2026 the Supreme Court denied the government’s petition for certiorari in United States v. Hembree (No. 25-1219), and the order records no dissent.
• Court: The decision left in place is a January 27, 2026 Fifth Circuit opinion by Judge Stephen A. Higginson, with Judges Willett and Engelhardt on the panel, reversing Charles Hembree’s conviction under the federal felon-in-possession statute, 18 U.S.C. 922(g)(1).
• Why it matters: The Fifth Circuit’s holding that a single simple drug possession felony does not support permanent federal disarmament stays on the books in Texas, Louisiana and Mississippi.
• What’s next: Johnson v. United States (No. 26-270), a nonviolent felon’s petition out of the Tenth Circuit, is on the Court’s October 9 conference list.

Most cert denials are one line in a long order list, and this one is too. What makes it worth reading is who was asking: the United States lost in the Fifth Circuit, went to the Supreme Court and got turned away. And the ask was smaller than the headlines suggest. I read the order list, the docket, the government’s petition, Hembree’s opposition brief and the Fifth Circuit opinion. Here’s what’s actually in them.

Table of Contents

What the October 5 Order List Actually Says

The entry sits on page 34 of the October 5 order list, under the heading for certiorari denied. It reads, in full: “The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.”

That’s all of it. No opinion, no explanation, and no justice recorded as dissenting or sitting out. Other entries on the same list do note a justice who would have granted review or who took no part, so the silence here is the Court’s own.

The docket shows how long this one sat. Solicitor General D. John Sauer filed the petition on April 24, 2026, Hembree’s lawyers got two extensions and filed their opposition on June 29, and the case was distributed on July 15 for the September 28 conference.

A cert denial is not a ruling on the merits. The Court said as much back in 1923: “The denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” It does not mean the justices think the Fifth Circuit got it right, and it creates no Supreme Court precedent.

What Charles Hembree Was Convicted Of

Charles Hembree has one felony on his record. The Fifth Circuit describes it as “a 2018 conviction for simple possession of methamphetamine” in Mississippi state court.

In 2022 a federal grand jury in the Southern District of Mississippi charged him with possessing a firearm as a convicted felon. The district court’s order says the indictment covered a Rohm .22 LR pistol and 87 rounds of ammunition, held between October 30, 2020 and March 8, 2021.

Hembree moved to dismiss, arguing that Section 922(g)(1) violates the Second Amendment as applied to him after Bruen. The district court denied the motion on December 1, 2023. He then pleaded guilty under a plea agreement that kept his right to appeal that one issue.

The sentence was six months in prison and three years of supervised release, which the Fifth Circuit notes was below the guidelines range.

Why the Fifth Circuit Reversed in United States v. Hembree

The Fifth Circuit opinion runs on the circuit’s own method. Since its 2024 Diaz decision, the court goes felony by felony, asking whether the government can show a historical tradition of disarming people for that particular kind of conviction. It looks at the predicate conviction and not at the rest of a defendant’s history.

Some predicates already fail that test for the defendant. The opinion lists theft, violence and possessing arms while on parole as categories that doom a challenge, and an earlier panel added drug trafficking. Simple possession was new, “a matter (or, rather, predicate) of first impression.”

The government offered two historical analogies. One was Founding-era laws that severely punished knowing possession of contraband, such as receiving a stolen horse, mail theft and counterfeiting. The other was the tradition of disarming dangerous people, on the theory that drug possession feeds drug traffickers.

The panel rejected both. It found “that the government did not meet its burden to prove that history and tradition support simple possession as a valid felony predicate under § 922(g)(1).” And it would not treat possession as dealing: “We decline to reach so far as to find possession to be part and parcel with the drug trade.”

Prosecutors also pointed to an intent-to-distribute count in Hembree’s old indictment and to facts from the gun case itself. The court said its precedent limits it to the conviction he actually has.

Judge Don Willett joined and wrote separately. He questions whether the ban falls within Congress’s enumerated powers at all, a claim circuit precedent forecloses, and he put the result this way: “the Second Amendment suspenders hold, at least for Hembree.”

The Small Ask in the Government’s Petition

The petition runs four pages before the appendix. Its question presented asks whether Section 922(g)(1) “violates the Second Amendment as applied to respondent.”

But the Justice Department did not ask the Court to hear the case. It asked the Court to hold the petition until it decided United States v. Hemani, the challenge to the separate ban on gun possession by unlawful drug users, and then, if appropriate, to vacate the Fifth Circuit’s judgment and send the case back for another look.

Hemani came down on June 18, 2026. The Court held that prosecuting a regular marijuana user under Section 922(g)(3) was inconsistent with the Second Amendment, and the opinion says, “In many respects, this case is a narrow one.” It expressly did not address Section 922(g)(1).

Hembree’s federal public defenders filed their brief eleven days later. Its introduction lands a jab: “The government does not argue that the decision below is wrong.” The rest argues that Hemani changed nothing for a man disarmed for life over a possession conviction.

The brief also says the Court had already refused the same hold-and-remand request in three other Fifth Circuit cases this year, where the old convictions were for attempted marijuana cultivation, failure to pay child support, and gun possession as an unlawful drug user. By that count, Hembree makes four.

What the Hembree Denial Does Not Do

It does not make this the rule nationwide. The Fifth Circuit hears appeals from federal courts in Louisiana, Mississippi and Texas, and nowhere else.

The opinion itself maps the other side. It says the Second, Fourth, Eighth, Ninth, Tenth and Eleventh Circuits have held the ban constitutional as applied to all felons, while the Third and Sixth allow as-applied challenges and look at how dangerous the individual is. A defendant in the Tenth Circuit is living under different law than one in the Fifth.

It does not help most felons inside the Fifth Circuit either. People with convictions for theft, violence or drug trafficking still lose there, and the opinion notes the trafficking rule has been extended to possession with intent to distribute.

And it does not touch state law. The ruling is about one federal statute, so state felon-in-possession laws, including Mississippi’s own gun laws, are where they were on October 4.

For anyone with a record, the practical takeaway is small and unhappy: this is not a permission slip. Judge Higginson’s own footnote flags the felony-by-felony approach as “posing an issue of notice for Americans with a prior felony conviction,” which is a polite way of saying you cannot know where you stand until a court tells you. Talk to a lawyer before you touch a gun.

What Happens Next for the Felon Gun Ban

The Fifth Circuit panel said it was bound by its precedent “pending further clarification from our full court to reconcile our incremental approach or from the Supreme Court to reconcile the circuit split.” Neither has happened.

The next chance is close. Johnson v. United States, the Tenth Circuit petition from a man whose only felony is a marijuana grow conviction, is set for the October 9 conference, and unlike the government in Hembree’s case, that petitioner is asking the Court to take the question and answer it. A conference is not a grant, and I am not going to guess at the outcome.

One more denial from the same list. The Court also turned down Johnson v. Jacobson (No. 26-255), the carry reciprocity petition against Minnesota, in the long run of cases denied without comment. A different Johnson, and a different fight.

One line on page 34. No reasons given. In three states, the Fifth Circuit’s answer is the one that counts for now.

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