A Supreme Court petition argues that the practice of allowing a court to determine dangerousness based on a preponderance of the evidence runs afoul of the Fifth Amendment.
In June of last year, in United States v. Hemani, the Court spoke with a single voice: Americans cannot be deprived of their Second Amendment freedoms or charged with illegal firearm possession solely because they use marijuana or other drugs that are federally prohibited. The ruling complicated enforcement of 18 USC 922(g)(3), which makes it a felony for an “unlawful user” of any controlled substance to receive or possess a firearm. It also opened the door to relief for individuals already convicted under that statute whose bases rested only on the statutory elements.
The decision in Hemani did not close the door to Section 922(g)(3) prosecutions when prosecutors present extra evidence showing that a defendant poses a public-safety danger. However, before Hemani, prosecutors rarely pursued such evidence. The current issue is how federal courts should handle those prior convictions: should they be erased, or should prosecutors be allowed another opportunity to offer proof that would satisfy Hemani‘s newly articulated standard? A petition pending before the Supreme Court from Alexander Ledvina, an Iowa cannabis user who received a four-year state sentence after his 2023 conviction under Section 922(g)(3), spotlights a jurisdictional split on this pivotal question.
Ledvina, who authored the petition himself, has drawn unusual attention because the Trump administration appears engaged. On August 3, Solicitor General D. John Sauer asked for additional time to file a response, with a deadline now set for this Friday.
Having been jailed since his June 2023 arrest, Ledvina was released from federal custody in Memphis on July 6, aided by expanded “good conduct” and “earned” time credits enacted by the FIRST STEP Act of 2018. He still faces three years of supervised release and bears a felony record that undermines his economic prospects and permanently bars firearm ownership.
The Eighth Circuit Court of Appeals, which encompasses Iowa, had already recognized Second Amendment concerns with Section 922(g)(3) even before Hemani. In United States v. Veasley (2024), the court rejected a facial challenge to the provision, holding that the defendant had failed to prove it unconstitutional in all of its applications. But in United States v. Cooper (2023), the court declared that Cooper—who admitted to owning a Glock 20 and smoking marijuana three to four times weekly—should have a chance to argue that Section 922(g)(3) is unconstitutional as applied to him, thereby vacating LeMarr Cooper’s conviction and sending the matter back for further consideration. Ledvina received a parallel reply the next month. In United States v. Ledvina, the court vacated his Section 922(g)(3) conviction and remanded the case to the district court so it could address his as-applied challenge, while leaving intact a related conviction under Section 924(a)(1)(A) for making a false statement on a form that a federally licensed gun dealer must keep. Ledvina had checked “no” on the question whether he was an unlawful user of drugs when purchasing a pistol in July 2022.
Ledvina believes the Eighth Circuit should have vacated both convictions. He also contends that the court’s handling of as-applied challenges to Section 922(g)(3) rests on a flawed premise: it permits the government to buttress the evidence it used to obtain a conviction after the fact. The court’s approach also enables a judge to render necessary findings to sustain a prosecution based on a preponderance of the evidence, a standard far weaker than the proof beyond a reasonable doubt required for a conviction.
Like Cooper, Ledvina’s conviction rested on stipulated facts following a bench trial. U.S. District Judge C.J. Williams concluded those facts sufficed to prove beyond a reasonable doubt that Ledvina violated Section 922(g)(3). Yet those facts did not include evidence of dangerousness, which Hemani requires. At sentencing, the judge relied on a preponderance of the evidence to credit additional allegations, including a claim that Ledvina accidentally discharged a firearm while in the company of someone using cocaine.
Even though those allegations had not been proven at trial, they nonetheless influenced Ledvina’s punishment. When the case returned to Williams, the Eighth Circuit was effectively inviting him to revisit those claims—this time to reject Ledvina’s as-applied challenge—without requiring the government to prove them beyond a reasonable doubt.
In Veasley, the Eighth Circuit concluded that Section 922(g)(3) aligns with this nation’s historical tradition of firearm regulation, applying the Bruen framework from the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. The court found two “relevantly similar” historical analogies: confinement of the mentally ill and criminal prohibitions on arming to frighten the people.
The Supreme Court rejected the first analogy in Hemani. Although the justices did not address the second, the Eighth Circuit has conceded that Section 922(g)(3) is not automatically comparable to founding-era “going armed” statutes, because those laws targeted the use of a firearm to terrorize rather than mere possession. They required an active, threatening use of a firearm, not simply possession.
Nevertheless, the Cooper decision broadly aligned with the pattern the Court later articulated in Hemani: a Section 922(g)(3) conviction can be constitutional if the defendant poses a danger to others.
For the Eighth Circuit, the key questions remained: Did marijuana use render Cooper “mentally ill and dangerous”? Did he “induce terror,” or pose a credible threat to others’ safety with a firearm? If the answers were not definitively yes, or if the court lacked a new analogue the Bruen framework had missed, the court suggested the Bruen test had not been satisfied and a remand was necessary for those determinations. Ledvina’s case followed a similar path, with the court urging Williams to determine whether Ledvina’s marijuana use made him act as someone “mentally ill and dangerous” or able to instill fear or threaten others’ safety with a weapon. A parallel approach surfaced in United States v. Striplin last July, which also involved a bench trial based on stipulated facts.
The same month, United States v. Baxter presented a contrasting stance. The Eighth Circuit did not deem a remand necessary here. Baxter, another defendant, was convicted by a judge on stipulated facts indicating a violation of Section 922(g)(3). Yet the court held, applying a preponderance standard, that Baxter’s status as a gang member who allegedly carried a pistol during a confrontation and fled from the police indicated a danger to others.
“We conclude the district court did not err in denying Baxter’s motion to dismiss because the Government satisfied its burden by showing that Baxter’s conduct bore substantial similarity to the conduct prohibited by the Founding-era Terror of the People laws,” the court stated. “The Supreme Court’s most recent unanimous decision in Hemani does not compel a different result.”
How does that align with the broader jurisprudence? In the majority’s view, Justice Neil Gorsuch left open the possibility that “the government could bring a §922(g)(3) prosecution accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others.”
Gorsuch did not address what should happen when convictions were already in place without such individualized proof. The Eighth Circuit’s stance is that dangerousness can be proven after the fact by a preponderance of the evidence, which in some cases may require a new evidentiary hearing.
Therefore, the court held that the government must establish the facts necessary to show that Baxter’s conduct aligns with a historical analogue by a preponderance of the evidence. It agreed with the district court that adopting a preponderance standard does not violate Baxter’s due process rights because determining whether applying §922(g)(3) to him aligns with the nation’s historical tradition of firearm regulation is not an element of the crime.
In Baxter, the court believed the government had already presented enough evidence to meet that standard. In Ledvina’s and the other cases, it said the trial court should reconsider. But this approach enables the government to retroactively shore up a constitutionally flawed case with new allegations that it does not have to prove beyond a reasonable doubt.
The 8th Circuit’s approach does not appear to harmonize with Hemani. The Hemani case concerned Ali Hemani, a Texas resident who owned a pistol and acknowledged using marijuana several times weekly. After a judge dismissed the gun charge on Second Amendment grounds, the 5th Circuit upheld the decision, and the Supreme Court unanimously refused to revive the charge. Unlike the Ledvina scenario, neither the 5th Circuit nor the Supreme Court considered remanding the matter for further fact finding.
The Fifth Circuit did not deem remand necessary in United States v. Connelly, the 2024 case Hemani relied upon. That case involved a “non-violent, marijuana-using gun owner” charged under §922(g)(3). After determining that the prosecution failed the Bruen test, the Fifth Circuit affirmed the dismissal of the indictment.
Ledvina notes that the Fifth Circuit is willing to resolve as-applied challenges without remand, and the Seventh Circuit followed in United States v. Seiwert (2025). The Seventh Circuit is cited as joining the Fifth in resolving as-applied challenges without remanding for further findings.
By contrast, the Eighth, Third, and Tenth Circuits have remanded as-applied challenges to the district court to reexamine them under their newer tests and to make additional determinations. The Third and Tenth Circuits did so in reaction to pretrial motions to dismiss, while the Eighth has gone further by remanding even after trials to seek additional proof.
Ledvina argues that this practice is inconsistent with Hemani. “Rather than sending the case back for further factual development to see if the prosecution is permissible under an alternate test, the Court affirmed the dismissal on the factual record that existed at the time the motion was decided,” he writes. “If further fact-finding was unwarranted before trial in Hemani, it is even less appropriate after a trial has occurred.”
Ledvina contends that these remands violate the Fifth Amendment. He argues they amount to double jeopardy by giving the government a “second bite at the apple,” and they violate the Grand Jury Clause by allowing the government to “establish criminal liability on facts that were never charged in the indictment.” He also points to potential due process concerns and a violation of the Sixth Amendment right to a jury trial.
“Baxter approved a process in which facts necessary to establish criminal liability were determined by a judge in post-trial proceedings using a preponderance of the evidence standard,” Ledvina writes. “That procedure infringes the Fifth and Sixth Amendments by depriving the defendant of the jury’s role in determining all facts essential to punishment beyond a reasonable doubt.”
The Eighth Circuit has argued that this standard does not govern cases like Ledvina’s because the constitutionality of prosecuting under §922(g)(3) is not an element of the offense. Yet Hemani makes clear that such a prosecution collapses at the outset without individualized proof of dangerousness. In other words, going forward, the government cannot convict someone under §922(g)(3) unless its evidence extends beyond the statutory elements. Still, the Eighth Circuit maintains that prior convictions can be validated after the fact on evidence never presented at trial.
When government action increases a defendant’s punishment based on a particular fact, the Supreme Court in Ring v. Arizona (2002) held that the fact must be found by a jury beyond a reasonable doubt. The core inquiry, as refined in Apprendi v. New Jersey (2000), is whether the required finding exposes the defendant to greater punishment than the jury’s verdict authorized. The Court reaffirmed the principle in Erlinger v. United States (2024): the government must prove beyond a reasonable doubt to a unanimous jury the facts needed to sustain the punishment sought.
Under Hemani, dangerousness is a fact the government must prove to sustain punishment. The additional facts required to authorize the constitutional application of a statute fit squarely within this framework because they are essential to any punishment. Without them, applying the statute to the defendant would be unconstitutional.
What happens when a defendant agrees to a bench trial, as Ledvina did? He notes that defendants typically enter such arrangements knowing their liability will be determined within a fixed universe of facts set forth in the stipulation. They did not anticipate later post-trial fact-finding with new evidence and a lower standard of proof. This “bait and switch” undermines the defendant’s bargain and benefits the government at the defendant’s expense.
Ledvina argues that his case presents an ideal vehicle for definitively resolving the ongoing circuit split over as-applied challenges to §922(g)(3). Given the Hemani ruling, he predicts the Trump administration will resist.
