The Fifth Circuit Court of Appeals has issued a number of strong decisions in support of the Second Amendment in recent years, including the Hemani decision upheld by the Supreme Court that ruled the federal ban on gun possession for “unlawful drug users was unconstitutional as applied to a Texas man who regularly used marijuana.
Now the appellate court may be ready to whittle away at Section 922(g)(1)’s prohibition on gun possession for those convicted of a crime punishable by more than one year in prison. The court has granted a request for en banc review filed by the attorneys for Peter Villa Cordova, who pled guilty to possessing a gun after convictions for, among other things, drug possession and evading arrest or detention with a motor vehicle.
The Fifth Circuit is taking a case en banc that upheld a conviction under the felon gun ban for someone who did not serve any time in prison for the underlying offense.
Judge Oldham concurred in the panel opinion while saying the circuit’s 922(g)(1) precedent “was wrong on the… pic.twitter.com/jrT8vLZBla
— Firearms Policy Coalition (@gunpolicy) September 14, 2026
The three-judge panel that originally heard Cordova’s appeal upheld his conviction on the grounds that evading arrest in a motor vehicle can pose a “credible threat to the physical safety of others.” While Judge James Ho, a member of the panel, concurred with the conviction, he did so by noting some issues with the statute.
To begin with, § 922(g)(1) makes it a crime to possess a firearm for anyone convicted of any felony, so long as the person has been convicted of a crime that is “punishable by imprisonment for a term exceeding one year.”
Moreover, § 922(g)(1) contains no time limit. So it imposes a lifetime ban on the possession of a firearm. And it does so even if the person has never been sentenced to serve a single day in prison.
So it’s not difficult to imagine how, depending on the circumstances,§ 922(g)(1) could present serious constitutional questions.
Ho pointed out that Cordova was convicted a decade before the events of this case, and was never sentenced to serve any prison time. Even his term of probation had ended roughly seven years before he was found in possession of a firearm in violation of § 922(g)(1). At the same time, Ho pointed out that Cordova failed to “provide any legal authority or analysis indicating that this ten-year lapse raises concerns under the Second Amendment,” and that the case “does not present a challenge to lifetime disarmament under § 922(g)(1).”
Ho’s colleague Judge Andrew S. Oldham also had concerns about the Cordova case. In fact, he takes issue with the Fifth Circuit’s view of the Second Amendment altogether, calling it “historically bankrupt.”
Particularly unfortunate among our mistakes is a case called United States v. Diaz, 116 F.4th 458 (5th Cir.2024), which is the accidental font of all our felon-in-possession precedent. Diaz was wrong on the day it was decided. And it gets more wrong with each passing day. At best, it has led panels (as here) to gloss over doctrinal complications. And at worst, it has led to nonsensical interpretations of the Second Amendment and tortured applications to 18 U.S.C. § 922(g)(1).
Diaz involved an individual who was pulled over for a traffic stop where police discovered a pistol, methamphetamine, counterfeit Xanax, and heroin in the possession of Ronnie Diaz, Jr. Diaz was charged with possessing a gun as a convicted felon since he had previous convictions for theft and burglary of a motor vehicle.
The Fifth Circuit upheld Diaz’s conviction under 922(g)(1) after determining that, at the time of the Founding, some states punished theft by imposing death as a sentence. The panel did note, though, that other appellate courts like the Third Circuit had determined that “Founding-era governments punish[ing] some nonviolent crimes with death does not suggest that the particular (and distinct) punishment at issue—lifetime disarmament—is rooted in our Nation’s history and tradition.”
As Oldham explained in his concurrence, the Fifth Circuit then rationalized 922(g)(1)’s application to Diaz by citing “two unadopted proposals that obliquely referenced disarming criminals” and concluding that those represented a national tradition of disarming thieves.
You might reasonably think such thin non-evidence from unadopted proposals in just two States would show the right to keep and bear arms was not limited to law-abiding citizens. But the Diaz panel reached the opposite conclusion—it only explained that the proposals “help to illuminate the ‘public understanding’ of the Second Amendment,” and that such “illumination” meant § 922(g)(1) was constitutional. Ibid. The Diaz panel also looked to four “going armed” laws that prohibited people from menacing others with firearms. Id. at 470–71.Because those laws punished some conduct with disarmament, Diaz asserted that § 922(g)(1)’s disarmament scheme was also permissible.
Oldham argued that there were multiple reasons to “jettison Diaz,” though he too concurred that even without that precedent Mr. Cordova’s actions demonstrated his “dangerousness,” and he could therefore be lawfully disarmed.
It looks like Oldham may soon get his wish about the Diaz case. The fact that a majority of judges on the Fifth Circuit have now agreed to revisit the case indicates that they take some issue with either the conclusion that Diaz can rightfully be prosecuted under Section 922(g)(1) or how the district court (and the three judge panel) reached that conclusion.
The en banc court may very well conclude that Cordova proved his dangerousness by evading police while he was behind the wheel while taking Oldham’s position that a dangerousness analysis needs to take place rather than being assumed solely because of his felony conviction. The court could also, though, concur with Judge Ho’s position that a lifetime ban on possessing firearms presents “serious constitutional problems” and take a broader stance challenging 922(g)(1). Either way, the court’s decision to rehear Cordova en banc indicates that some type of revision of Fifth Circuit precedent is on the table, and in a way that should provide more recognition of the fundamental importance of our Second Amendment rights.
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