Key Takeaways
- The Supreme Court declined to hear the case United States v. Hembree, upholding a Fifth Circuit ruling on the unconstitutionality of the felon-in-possession statute for a man convicted of simple drug possession.
- The Fifth Circuit found that the government failed to justify a permanent gun ban based on Charles Hembree’s felony for meth possession, emphasizing the burden of proof lies with the government.
- Hembree’s case highlights the distinction between state and federal rules on firearm possession, as federal laws can override state permits.
- The court’s decision continues to impact how similar cases are treated within the Fifth Circuit, requiring historical justification for gun bans related to drug offenses.
Estimated reading time: 5 minutes
WASHINGTON, DC — The Supreme Court on Monday, October 5, 2026, declined to hear United States v. Hembree, leaving in place a Fifth Circuit decision that the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is unconstitutional as applied to a Mississippi man whose only felony was simple possession of methamphetamine.
In February I covered Federal Appeals Court Tosses Felon Gun Ban Based on Meth Possession, when the Fifth Circuit handed down the ruling. What has changed since then is that the Justice Department petitioned the Supreme Court to review it, as reported by Townhall, and the Court said no, so the appeals court decision stands. “As applied” is the phrase that matters. The Fifth Circuit did not strike § 922(g)(1) off the books. It held that the government could not justify using the statute against this particular man with this particular record.
According to the Fifth Circuit’s January 27, 2026 opinion, Charles Hembree was convicted in 2018 in Mississippi state court of possession of methamphetamine. In 2022 a federal indictment charged him under § 922(g)(1) with possessing a firearm as a convicted felon. His lawyers moved to dismiss, arguing the statute violated the Second Amendment as applied to him in light of Bruen. The district court denied the motion on December 1, 2023. Hembree then pleaded guilty under a plea agreement that waived nearly every appeal right but reserved the Bruen question. The district court sentenced him below the guidelines range to six months in prison followed by three years of supervised release. Six months in federal custody, with a nonviolent possession conviction as the only reason he was barred from having a gun. That is the case the Fifth Circuit took up.
A panel of Judges Higginson, Willett, and Engelhardt reversed the conviction, with Judge Stephen Higginson writing and Judge Don Willett concurring separately. Because Hembree preserved his challenge in the motion to dismiss, the court reviewed it de novo, meaning it decided the constitutional question fresh instead of deferring to the district judge. The opinion lays out his argument in one sentence: the government “has not and cannot prove that disarming Hembree based on his conviction for possession of methamphetamine fits within this country’s traditional regulation of firearms.” Relying on its 2024 decision in United States v. Diaz, which the Supreme Court also declined to review, the panel agreed. In the line Townhall quoted from the opinion, “the government did not meet its burden to prove that history and tradition support simple possession as a valid felony predicate.” The predicate is the prior conviction that triggers the ban in the first place, and the court found the government could not tie this one to any historical tradition of disarmament. As I noted in February, the government tried to liken Hembree’s offense to mail theft and counterfeiting, crimes punished severely in the 18th century, and the panel rejected the comparison because those crimes involved fraud and theft, not personal drug use.
Under Bruen the burden sits on the government, not the citizen. The Fifth Circuit did not ask whether Hembree was a sympathetic defendant. It asked whether the government could produce history justifying a permanent gun ban for simple drug possession, and the government could not. Hembree also raised a facial challenge, a vagueness claim, and a Commerce Clause argument for the first time on appeal, but the preserved as-applied challenge is the one that carried the reversal.
The denial lands four months after Hemani. In June, per Townhall, the Court held that the federal law barring habitual drug users from having guns violated the Second Amendment as applied to a Texas man who said he uses marijuana a few times a week. Justice Neil Gorsuch stressed that “[i]n many respects, this case is a narrow one,” and he noted the Court was not addressing the law “disarming individuals convicted of felonies (often including drug-related ones).” Hembree was the Court’s first clean opportunity to address exactly that, and it passed.
A denial is not a ruling. The justices did not say the Fifth Circuit got it right; they said they would not look. Other circuits remain free to go the other way, and the question of who § 922(g)(1) can constitutionally reach stays unsettled nationally. Inside the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, prosecutors now have to come to court with history, not just the statute, before convicting someone whose only felony is simple possession.
More from USA Carry:
There is a practical layer here for anyone who carries. The federal ban sits on top of state permit rules, and the two do not always line up. My state-by-state concealed carry permit information covers the state side, but a prior conviction can end your right to possess a firearm at the federal level no matter what your state permit says. Hembree served his six months before an appeals court said the conviction never should have happened. Knowing your own legal status is part of the mindset, and this case shows the line is still being drawn in court.
I will continue tracking how courts apply Hembree and when the Supreme Court finally takes up the felon-in-possession question it set aside in Hemani.
