The Supreme Court declined the Justice Department’s bid to overturn a Fifth Circuit decision restoring gun rights after a simple meth possession conviction, a win for Second Amendment advocates.
On Monday, the high court refused to hear the Justice Department’s petition for review in the case of Charles Hembree, leaving in place a Fifth Circuit decision that reversed his conviction for possessing a firearm after a prior drug conviction. The refusal means the appeals court’s Second Amendment holding stands in Texas, Mississippi, and Louisiana.
The Daily Caller reported that the denial lets stand a January 27 ruling by a three-judge Fifth Circuit panel that found Hembree’s felon-in-possession conviction unconstitutional as applied. His underlying offense was a 2018 conviction for possession of methamphetamine, not a violent crime, and not, the panel said, something the government had tied to the drug trade with historical proof.
Federal law under § 922(g)(1), the long-standing ban on gun possession by people with felony convictions, was the statute at issue. The panel did not strike the law down for everyone. It held the ban could not be applied to Hembree on these facts.
That outcome fits a larger pattern of the Court choosing which gun and criminal cases it will fully air, including earlier docket fights over gun bans and border disputes as the term got underway.
Circuit Judge Stephen Higginson, an Obama appointee writing for a panel that also included two Trump appointees, put the burden squarely on prosecutors. The government had to show that history and tradition support treating simple possession as a valid felony predicate for stripping Second Amendment rights. It did not.
Higginson wrote for the court:
"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)."
The panel went further. It refused to treat mere possession as automatically part of the drug trade, and it rejected the government’s comparison to possession of other contraband.
Higginson continued:
"We decline to reach so far as to find possession to be part and parcel with the drug trade, and the government’s analogy to possession of contraband has been foreclosed. Accordingly, we are compelled to reverse Hembree’s conviction as unconstitutional as-applied."
Hembree’s 2018 meth possession conviction had been used to bar him from lawfully having a gun. The Fifth Circuit reversed that gun conviction. When the Justice Department sought Supreme Court review, the high court said no.
The Supreme Court’s orders list was brief and final. It granted Hembree leave to proceed without paying costs and denied the petition:
"The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied."
No explanatory opinion accompanied the denial. The Fifth Circuit decision remains the law in the circuit.
The Hembree fight did not arrive in isolation. It followed the Supreme Court’s ruling in Hemani v. United States, which struck down use of a gun charge because Ali Hemani was a regular marijuana user. That decision narrowed how far the government could go in using drug-related status to justify firearm prosecutions.
At the time of the Hembree appeal, the Justice Department asked the high court to send the case back to the Fifth Circuit in light of Hemani. Federal public defenders representing Hembree argued the opposite: that Hemani did not contradict the Fifth Circuit’s reasoning. The Supreme Court denied certiorari without adopting the government’s remand request.
Hemani’s attorney, Zachary Newland, had earlier explained the litigation strategy behind these challenges to the Daily Caller News Foundation. As-applied attacks, he said, force the government to justify the law against a specific person rather than defend it in every possible case.
Newland said:
"We made sure that we brought an as-applied challenge rather than a facial challenge, meaning an as-applied challenge is a challenge saying that the law is unlawful as applied to my client versus a facial challenge, which says it’s unlawful in every instance."
He added that the approach narrows the target and shifts the burden:
"So that’s one, you narrow the target there, right? And in some ways, you put it on the government rather than putting it on you."
That same “deny and move on” posture has shown up in other recent matters, including when the Court left a Pennsylvania judge’s suspension standing rather than reopen the fight.
Because the Supreme Court declined review, the Fifth Circuit’s as-applied holding controls in Texas, Mississippi, and Louisiana. In practical terms, that reduces the number of felony convictions, at least those resting on simple possession like Hembree’s meth case, that can automatically strip Americans in those states of Second Amendment rights under the federal felon gun ban.
The Firearms Policy Coalition flagged the denial on social media the day the orders list drew public notice, describing the Fifth Circuit’s ruling as a Second Amendment win against the felon gun ban as applied to a defendant whose underlying crime was possessing meth.
Gun-rights groups have long argued that § 922(g)(1) has been stretched far beyond violent offenders and true threats to public safety. Nonviolent drug possession predicates, they contend, turn a constitutional right into a paperwork trap. The Fifth Circuit demanded historical proof the government could not supply. The Supreme Court chose not to second-guess that demand.
Readers tracking the Court’s criminal and immigration docket have seen similar high-stakes denials and green lights elsewhere, from contempt fights to the path the justices cleared on ending TPS for Venezuelan migrants.
A cert denial is not a full-blown endorsement of every sentence in the lower-court opinion. It is a decision not to take the case. Still, the practical effect is clear: the Justice Department does not get a do-over in Hembree, the conviction stays reversed, and the Fifth Circuit’s history-and-tradition analysis remains binding inside the circuit.
The panel’s composition mattered for legitimacy on the right. Two Trump appointees joined Higginson’s opinion. This was not a lone ideological outlier. It was a cross-appointment majority telling federal prosecutors their historical case was too thin to justify applying the felon gun ban to simple meth possession.
Open questions remain outside the orders list. The public record summarized in coverage does not detail every fact of Hembree’s firearm possession charge, the names of the other two panel judges beyond Higginson’s authorship, or any separate concurrence or dissent. What is established is the holding, the statute, the predicate offense, the January 27 reversal, the government’s failed cert push, and the Monday denial.
Political fights over the Court’s future membership continue in parallel, with Democrats already signaling hardline blocks on future nominees if they retake the Senate. Those confirmation wars will shape who applies these precedents next. They do not change what the current Court did in Hembree: it left the gun-rights ruling alone.
When prosecutors reach for a blanket felony gun ban over simple possession, and cannot show the history to back it up, courts are right to say no, and the Supreme Court was right to let that answer stand.
