Same Court, Same Day: Where the Third Circuit Drew the § 922(g)(1) Line

Two opinions came down from the en banc Third Circuit on October 13, 2026, and the second relies on the first throughout. In United States v. Bost, a criminal appeal, the court affirmed a conviction under 18 U.S.C. § 922(g)(1), the statute that bars anyone convicted of a crime punishable by more than a year in prison from possessing a firearm. In Williams v. Attorney General, a civil action for a declaratory judgment, it affirmed a judgment that the same statute violates the Second Amendment as applied to a man whose only predicate was a drunk-driving conviction.¹

Read together, the two decisions give the district courts a starting point: the elements of the predicate conviction. They do not give them a finished test. And the judges who supplied the two majorities were not the same judges, which matters for anyone trying to predict the cases in between.

ITwo convictions

In 2002 James Bost carjacked a woman, “threatening to kill the driver unless she gave him money.” He pleaded guilty in Pennsylvania to terroristic threats and criminal conspiracy, along with false imprisonment and simple assault. The first two are first-degree misdemeanors punishable by up to five years in prison, and one element of the terroristic-threats offense is “a threat to commit any crime of violence with intent to terrorize another.” Years later, United States Marshals found him next to a couch with a stolen .38 caliber pistol on it. Indicted under § 922(g)(1) and § 922(j), he moved to dismiss on Second Amendment grounds, lost, and pleaded guilty, reserving the right to appeal.²

Edward Williams’s predicate was a 2005 conviction for driving at Pennsylvania’s “[h]ighest rate of alcohol,” his second offense, which made it punishable by up to five years. He was sentenced to between ninety days and two years and served the sentence in home confinement. In 2015 his lawyer told him that the conviction barred him from possessing firearms; he divested himself of his guns and sued for a declaration that § 922(g)(1) was unconstitutional as applied to him. The district court granted him summary judgment, and the United States appealed.³

IIThe common starting point

Bost states the principle in its first sentence: “The right to keep and bear arms has limits, and this is one: Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality.” Judge Bibas’s opinion for the court then answers the two questions that analogical reasoning under Bruen asks. Why may the government disarm? Because “disarming physically dangerous people serves public safety,” so “§ 922(g)(1) is constitutional insofar as it disarms convicts who pose a risk of physical violence from misusing guns.” How? Historically, through a judgment about the particular person: “Individualized judgment was the norm.” The court also set aside a 2025 panel decision on the question: Pitsilides v. Barr “is no longer our touchstone.”⁴

The holding follows: “We hold that some predicate crimes (like Bost’s conviction for terroristic threats) demonstrate a prima facie risk of physical violence from misusing guns and that those convicted of such crimes may presumptively be disarmed based on those convictions alone.” On a motion to dismiss, “courts must look only at the predicate crime that supports the § 922(g)(1) prosecution in the first place.” Some predicates “speak for themselves”; violent and threatening offenses suffice, and the predicate need not have involved a gun. Others “speak for themselves in the other direction: They are not even physically dangerous, let alone violent.” Bost’s conviction was in the first group.⁵

Judge Matey’s opinion for the court in Williams reached the same starting point by a longer historical route. It found no enduring custom behind a categorical ban, given “the novelty of forever restricting all felons from possessing firearms for lawful purposes”: the ban’s current form dates from 1961, and “[t]he late entrance of a regulation tying felonies to gun possession disproves any longstanding customary contraction of the liberty codified in the Second Amendment.” The label alone settles nothing: “simply pointing to Williams’s felony because it is labeled ‘felony’ does not do.” So the court looked to the elements of the predicate offense, clarified where necessary by the Shepard documents, and stated the consequence: “If the predicate offense lacks threats or violence, then the predicate crime was likely never disarmable.”⁶

Williams’s offense “plainly does not contain threatening or violent elements.” The government’s analogy to laws against habitual drunkards, the one on which it rested its case, failed on both of Bruen’s questions. As to why, the court relied on the Supreme Court’s statement in Hemani that those laws sought not “to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation.” As to how, most of the historical laws confined habitual drunkards for months or a few years, and those released were restored to their rights. And on this record, the court held, “Williams poses no present physical danger from the use of a firearm, or anything else.”⁷

IIIWho joined what

The opinions were filed by two benches of fourteen judges that were not identical. Judge Chung sat in Williams but not in Bost; Judge Fisher sat in Bost but not in Williams. Bost had first been argued to a panel in April 2025 and was reargued en banc on February 11, 2026, the day Williams was argued. The headings of the opinions record each judge’s position, and the table reproduces them without characterization.⁸

In Williams the Chief Judge concurred in Parts I–III.B.2 of Judge Matey’s opinion and dissented from Part III.B.3. In Bost Judge Bibas filed the opinion of the court “except as to Section II.B”; Judge Mascott declined to join Parts II.B and III. Counting from the headings, the judgment in Williams was affirmed by eight votes to six and the judgment in Bost by twelve to two; the opinions do not state the count.

Some consequences follow from the headings themselves. Four judges joined both opinions of the court in full: Judges Hardiman, Bibas, Porter and Matey. Part III of Bost, the holding about predicate crimes, had eight votes, Judge Bibas’s included, Judge Mascott having declined to join it; Section II.B, Judge Bibas’s survey of historical categorical bans, had seven and is not an opinion of the court. In Williams, the Chief Judge joined the analysis through Part III.B.2, which includes the treatment of the drunk-driving conviction, and dissented from Part III.B.3, on the administrative restoration process.⁹

The separate opinions show why the two majorities differ. Judges Phipps and Bove joined the Williams majority and dissented in Bost: in Judge Phipps’s view, “there is no historical analogue to justify the presumptive permanent disarmament effectuated by 18 U.S.C. § 922(g)(1),” and the statute is unconstitutional as applied even to Bost, “a felon who has repaid his debt to society.” Judges Shwartz, Krause and Restrepo went the other way in both cases. Judge Shwartz wrote “to emphasize my view that § 922(g)(1) constitutionally bans all felons from possessing firearms under Supreme Court precedent, history, and due process,” and in Williams would have vacated the judgment and directed dismissal without prejudice. Judge Freeman joined the Bost majority in full; in Williams, writing for herself and Judges Montgomery-Reeves and Chung, she parted from the majority “when it says a prior conviction is disarming on its face only if it involved violence or threats”; a recidivist conviction for driving at the highest blood-alcohol level, in her view, shows a credible threat to others through the use of “what can be a deadly weapon: a vehicle,” and she would have remanded for factfinding on Williams’s present danger. Judge Mascott concurred in Bost only “as applied to Mr. Bost’s individual violent record and not categorically to an entire class of offenses.” Judge Montgomery-Reeves joined all of Bost except Section II.B, which in her view “relies on repugnant and discriminatory laws and procedures.”¹⁰

IVWhat the court left open

The middle. Bost describes a spectrum and declines to fill it: “There may perhaps be a third, intermediate category,” of predicates that “may be closer calls.” “In the middle, it is possible that courts may have to draw more lines. But if so, we need not draw them today.” Williams placed one offense, a recidivist drunk-driving conviction, on the non-disarming side on the elements, over Judge Freeman’s view that it belongs on the other.¹¹

Whether the elements are necessary or only sufficient. Bost reserved the point in a parenthesis: “Here, the elements of the predicate crime are sufficient; we need not decide whether they are necessary or whether the facts admitted by a defendant, found by a jury, or supported by the weight of other evidence may also be considered.” Judge Shwartz predicted that this silence “will lead to chaos in the district courts.” The en banc order in Williams had asked the parties a closely related question: whether a court may consider “evidence beyond an individual’s predicate conviction(s), including, for example, other criminal convictions or conduct post-dating the predicate conviction.”¹²

The way out. “We need not address what, if anything, could later take a defendant out of that category,” Bost said of a defendant whose conviction places him among those who may presumptively be disarmed.¹³

The administrative route. Section 925(c) lets the Attorney General restore firearm rights, and after decades without funding the process has been revived. For a criminal defendant, Bost held, there is no exhaustion requirement: “we know of no other context in which a criminal defendant must first seek administrative permission before raising a constitutional defense in his criminal prosecution. We will not invent such a requirement here.” For civil plaintiffs like Williams, the opinions point in two directions. Judge Matey’s Part III.B.3 called the revived process “a slow trickle of relief available only upon invitation” and said that “no principles of ‘sound judicial discretion’ support holding a constitutional right in abeyance while the Government gradually comes into compliance.” The Chief Judge would hold that “exhaustion of the remedy now available under section 925(c) is required before an individual may file an as-applied civil action invoking the Second Amendment,” though he excused Williams. Judge Freeman, joined by Judges Montgomery-Reeves and Chung, wrote that “once the § 925(c) process is available, absent extraordinary circumstances, individuals should not be permitted to bypass that process.” And Judge Shwartz, joined by Judges Krause and Restrepo, agreed with the Chief Judge that individuals “must first exhaust their claims through the revitalized administrative process.”¹⁴

That last division deserves a count, and the Editor offers it as commentary on the opinions rather than as a holding. The seven judges of the Williams majority, Judge Matey included, stood behind Part III.B.3, which rejected an exhaustion requirement in Williams’s case in terms that are not limited to it. Seven others, the Chief Judge and Judge Krause, Judge Freeman with Judges Montgomery-Reeves and Chung, and Judge Shwartz with Judge Restrepo, said in the opinions they wrote or joined that future plaintiffs should ordinarily go to the Attorney General first. No opinion speaks for a majority on the rule for the next civil case.

VFor the litigator

Start with the elements. In the Third Circuit both majorities begin with the elements of the predicate offense and, to clarify them, the Shepard documents. A brief that argues the label “felony,” or the defendant’s general character, is arguing past both opinions.

Build the present-danger record anyway. The Williams majority did not stop at the elements. It relied on a record of more than twenty years without violence, steady employment, uncontested testimony about his drinking, and an expert examination. The government, which had conceded that the statute “raises constitutional concerns . . . when applied to persons who do not presently pose a danger if armed,” offered nothing to the contrary, and Judge Freeman would have remanded for exactly that evidence.¹⁵

Make the government answer “why.” The habitual-drunkard analogy failed in part because the government offered “no analysis on the ‘why’ of these laws.” Historical analogies without a stated purpose are the easiest kind to defeat.¹⁶

Decide about § 925(c) before filing. With no majority opinion on whether a civil plaintiff must apply to the Attorney General first, a declaratory-judgment complaint filed without an application invites the exhaustion fight. In a criminal case the question is settled in the defendant’s favor by Bost.

Count the bench. The judges who will hear the intermediate cases include judges who would uphold the statute for every felon and judges who would strike it even for Bost. The four who joined both opinions of the court in full are the center of gravity, and the next en banc case may not have the same fourteen.

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On one day the Third Circuit told its district courts how to begin a challenge to § 922(g)(1): with the elements of the conviction. It did not tell them how to finish one. The terroristic-threats case drew twelve votes for the judgment, and the drunk-driving case eight. The cases in between will be decided by a court that agreed on where to start and on very little else. §