UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Thomas Marshall
v. Case No. 24-cv-00191-PB-AJ Opinion No. 2025 DNH 067 U.S. Attorney General, et al.
MEMORANDUM AND ORDER
Thomas Marshall has filed a complaint seeking declaratory and
injunctive relief against the United States, the Attorney General, the
Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
and the Director of the Federal Bureau of Investigation (FBI). He asserts that
the Second Amendment bars the defendants from using 18 U.S.C. § 922(g)(1),
the federal felon-in-possession ban, to prevent him from possessing firearms
based solely on his convictions for operating a motor vehicle while under the
influence (OUI). Because I conclude that Marshall’s claim is precluded by
First Circuit precedent, I grant the defendants’ motion to dismiss for failure
to state a claim.
I. BACKGROUND
Marshall has two Massachusetts convictions for OUI: a 1997 first-
offense conviction, Doc. 1-1, and a 2005 second-offense conviction, Doc. 1-2.
Both OUI offenses are classified as misdemeanors under Massachusetts law even though they carry maximum prison sentences of two-and-a-half years. 1
Mass. Gen. L. ch. 90, § 24.
Marshall moved to New Hampshire in 2023 and later applied to
purchase a firearm at a licensed retailer. Doc. 1 at 7-8. While performing a
background check on Marshall, the New Hampshire State Police conducted a
routine background investigation and learned of Marshall’s OUI convictions.
Accordingly, it denied his application because he is barred from possessing a
firearm by § 922(g)(1). Doc. 1-4.
II. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim, a plaintiff
must allege facts sufficient to “‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if it pleads
1 Massachusetts law distinguishes between first-offense OUI and second- offense OUI convictions. See Mass. Gen. L. ch. 90, § 24. First offenses are punishable by a fine, a term of imprisonment no longer than two-and-a-half years, or both. Second offenses are punishable by a minimum fine of $600 and a term of imprisonment lasting no less than sixty days but no more than two- and-a-half years. Id. In Massachusetts, felonies are crimes subject to either capital punishment or a term of imprisonment served in a state prison. See id. ch. 274, § 1. First- and second-time OUI offenders serve their sentences in state “houses of correction,” rather than in state prisons. Id. ch. 90, § 24. As such, both relevant offenses here are misdemeanors under state law.
2 “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
Where, as here, the alleged facts are not in dispute, “[a] suit will be
dismissed if the complaint does not set forth factual allegations, either direct
or inferential, respecting each material element necessary to sustain recovery
under some actionable legal theory.” United States ex rel. Hutcheson v.
Blackstone Med., Inc., 647 F.3d 377, 384 (1st Cir. 2011) (internal quotation
marks and citation omitted).
III. ANALYSIS
Before turning to defendants’ arguments for dismissal, I first explain
how § 922(g)(1) affects Marshall’s firearm rights. I then describe the Supreme
Court’s recent Second Amendment jurisprudence, the circuit split that has
developed over how to apply those precedents, and our own circuit’s rulings
addressing Second Amendment challenges to § 922(g)(1).
A. Section 922(g)(1)
Section 922(g)(1) makes it unlawful for any person who has been
convicted of “a crime punishable by imprisonment for a term exceeding one
year” to possess a firearm. 18 U.S.C. § 922(g)(1). Although § 922(g)(1) is
commonly referred to as the felon-in-possession law, it also applies to persons
with misdemeanor convictions that carry maximum sentences of more than
two years. See id. § 921(a)(20)(B) (defining “crimes punishable by a term of
3 imprisonment exceeding one year” to exclude a misdemeanor conviction only
if the maximum sentence is two years or less). Marshall is subject to §
922(g)(1) because his OUI convictions carry maximum sentences of more than
two years.
Federal law gives a person two ways to regain his firearm rights
following a qualifying conviction. Section 921(a)(20) provides:
Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Id. Section 925(c) also authorizes the United States Attorney General to
restore a person’s firearm rights
if it is established to [her] satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.
Id. § 925(c). Marshall asserts that neither § 921(a)(20) nor § 925(c) currently
provides him with a viable path to recover his firearm rights. Doc. 1 at 7, 13.
B. The Second Amendment
The Second Amendment reads: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.” U.S. Const. amend. II. In 2008, the
4 Supreme Court construed the Second Amendment to confer an individual
right to bear arms. District of Columbia v. Heller, 554 U.S. 570, 592.
1. Supreme Court Precedent
The Supreme Court based its conclusion in Heller on a careful analysis
of the text of the Second Amendment, its historical background, and
contemporaneous understandings of constitutional language. Id. at 576-619.
But in announcing this new interpretative method, the Court also
cautioned—without grounding its statement in detailed historical analysis—
that “nothing in [the] opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and qualifications on
the commercial sale of arms.” Id. at 626-27. At the same time, it
characterized these types of firearm laws as “presumptively lawful.” Id. at
627 n.26. Two years later, in a decision incorporating the Second Amendment
against the states, the Court reiterated its “cast doubt” dictum. See
McDonald v. City of Chicago, 561 U.S. 742, 786 (2010).
Since then, the Second Amendment landscape has evolved. In 2022, the
Supreme Court handed down its opinion in New York State Rifle & Pistol
Association v. Bruen, 597 U.S. 1 (2022). Bruen builds on Heller and specifies
that, when the government seeks to regulate people or arms covered by the
5 plain text of the Amendment, it “must then justify its regulation by
demonstrating that it is consistent with the nation’s historical tradition of
firearm regulation.” Bruen, 597 U.S. at 24. To be sure, the Second
Amendment “is neither a regulatory straightjacket nor a regulatory blank
check.” Id. at 30. Bruen thus requires the government to identify “a well-
established and representative historical analogue” but it need not find a
“historical twin.” Id. (emphasis in original) “[E]ven if a modern-day
regulation is not a dead ringer for historical precursors, it still may be
analogous enough to pass constitutional muster.” Id. The Bruen Court did not
repudiate its earlier dicta in Heller and McDonald regarding certain
longstanding regulations. Nor did it suggest how the analytical method it
used to resolve Bruen could be employed when considering presumptively
valid firearm restrictions such as felon-in-possession laws.
The Supreme Court clarified Bruen in United States v. Rahimi, 602
U.S. 680 (2024). There, the Court rejected a facial Second Amendment
challenge to 18 U.S.C. § 922(g)(8), the statutory provision criminalizing the
possession of a firearm by a person subject to a domestic violence restraining
order. In rejecting a facial challenge, the Court emphasized that “[§] 922(g)(8)
applies only once a court has found that the defendant ‘represents a credible
threat to the physical safety’ of another.” Id. at 699 (quoting § 922(g)(8)). But
in making that observation, the Court also went out of its way, in an echo of
6 its earlier “cast doubt” dictum, to state: “We do not suggest that the Second
Amendment prohibits the enactment of laws banning the possession of guns
by categories of persons thought by a legislature to present a special danger
of misuse.” Id. at 698. And, at the same time, the Court restated its position
in Heller that laws banning the possession of firearms by felons and the
mentally ill are “presumptively lawful.” Id. at 699 (internal quotation marks
and citation omitted).
2. The Circuit Split
Courts of appeal have struggled in attempting to apply Heller, Bruen,
and Rahimi to challenges to § 922(g)(1). The Fourth, Eighth, Ninth, Tenth,
and Eleventh Circuits have determined that neither Bruen nor Rahimi
disturb the legality of § 922(g)(1)’s categorical ban on felons possessing
firearms. See United States v. Hunt, 123 F.4th 697, 700 (4th Cir. 2024);
United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. May 9, 2025);
United States v. Duarte, No. 22-50048, 2025 WL 1352411, at *1, *4 (9th Cir.
May, 9, 2025); Vincent v. Bondi, 127 F.4th 1263, 1265-66 (10th Cir. 2025);
United States v. Cole, No. 24-10878, 2025 WL 339894, at *1, 3-4 (11th Cir.
Jan. 30, 2025). Among these, all but the Eighth Circuit conclude that Bruen
and Rahimi “support [prior circuit precedents] holding that § 922(g)(1)
constitutionally prohibits the possession of firearms by felons.” Duarte, 2025
WL 1352411, at *5; accord Hunt, 123 F.4th at 702; Vincent, 127 F.4th at
7 1265; Cole, 2025 WL 339894, at *3-4 (all citing pre-Bruen and Rahimi circuit
precedents as good law). But see Jackson, 110 F.4th (upholding the facial
validity of § 922(g)(1) without directly relying on pre-Bruen or Rahimi circuit
precedent).
In contrast, only three circuits have read Bruen and Rahimi to require
a departure from past circuit precedent rejecting Second Amendment
challenges to § 922(g)(1). In United States v. Diaz, 116 F.4th 458 (5th Cir.
2024), the Fifth Circuit used what it understood to be the analytical method
required by Bruen and Rahimi to reject the defendant’s as-applied challenge
to § 922(g)(1) because at least one of the defendant’s qualifying convictions
was for a charge that had been treated as a felony and was subject to severe
punishment at the time of the nation’s founding. Id. at 469-70. In United
States v. Williams, 113 F.4th 637 (6th Cir. 2024), the Sixth Circuit concluded
that Bruen and Rahimi require that a person subject to disarmament
pursuant to § 922(g)(1) be “given an opportunity to make an individualized
showing that he himself is not actually dangerous.” Id. at 662-63. But
because the defendant in Williams had been unable to prove that he was not
dangerous, the court concluded that his challenge had been properly rejected
by the district court. Id.
The Third Circuit is the only appellate court that has relied on Bruen
and Rahimi to determine that the Second Amendment bars a person subject
8 to § 922(g)(1) from being disarmed. In Range v. Attorney General, 124 F.4th
218 (3rd Cir. 2024) (en banc) (Range II), that court held that the Second
Amendment entitles a person subject to § 922(g)(1) to file a declaratory
judgment action where the government must make a showing that the “our
Republic has a longstanding history and tradition of depriving people like
[the plaintiff] of their firearms.” Id. at 232. Because the plaintiff’s only felony
conviction in Range II was for making a false statement to obtain food
stamps, a nondangerous offense, the court determined that the Second
Amendment barred the government from using § 922(g)(1) to disarm him. Id.
3. The First Circuit
Our circuit addressed the constitutionality of § 922(g)(1) in the wake of
Heller and McDonald but before Bruen and Rahimi in United States v.
Torres-Rosario, 658 F.3d 110 (1st Cir. 2011). The panel began its analysis by
rejecting a possible facial challenge to § 922(g)(1) based on the Supreme
Court’s statements in Heller and McDonald that neither opinion “cast doubt
on such longstanding regulatory measures as prohibitions on the possession
of firearms by felons.” Id. at 112-13 (internal quotation marks omitted).
Because, however, both opinions also characterized felon-in-possession laws
as only “presumptively lawful,” the First Circuit recognized that the Supreme
Court may have intended to leave open the possibility of future as-applied
challenges based on “yet to be developed qualifications.” Id. at 113. The court
9 then identified two types of potential as-applied challenges that the Supreme
Court might recognize in the future. First, it suggested that “the Supreme
Court may be open to claims that some felonies do not indicate potential
violence and cannot be the basis for applying a categorical ban.” Id. Second, it
briefly considered the further possibility that the Supreme Court “might even
be open to highly fact-specific objections.” Id. The court did not expand on the
latter possibility given that “such an approach, applied to countless
variations in individual circumstances, would obviously present serious
problems of administration, consistency and fair warning.” Id. The court then
summarily rejected the defendant’s as-applied challenge to § 922(g)(1)
without determining whether the Second Amendment requires an offense-by-
offense analysis because the defendant’s drug distribution convictions
doomed his challenge even “assuming arguendo that the Supreme Court
might find some felonies to be so tame and technical as to be insufficient to
justify the ban.” 2 Id.
2 In the wake of Bruen and Rahimi, the Seventh Circuit took a similar approach to the issue. See United States v. Gay, 98 F.4th 843, 846-47 (7th Cir. 2024). In United States v. Gay, the Seventh Circuit left the door open to future offense-based challenges to § 922(g)(1) but concluded that, even assuming such as-applied challenges were operable, “that assumption does not assist” a defendant who had twenty-two prior felony convictions, including aggravated battery of a peace officer and possession a weapon while in prison. Id.
10 The circuit’s most recent consideration of a Second Amendment
challenge to § 922(g)(1) followed the issuance of Bruen and Rahimi but
reviewed the issue only for plain error because the defendant had not
presented his Second Amendment argument to the district court. United
States v. Langston, 110 F.4th 408 (1st Cir. 2024). After describing the
analytical process used by the Supreme Court in Bruen and Rahimi, the court
concluded that “the legal test from Rahimi does not ‘compel’ the conclusion
that § 922(g)(1) is unconstitutional under the Second Amendment as applied
to defendants with Langston’s criminal history as charged in the indictment.”
Id. at 419. In reaching this conclusion, the court attached special weight to
the Supreme Court’s repetition in Rahimi of its dictum from Heller that
felon-in-possession laws were “presumptively lawful.” Id. at 420.
C. Marshall’s Argument
Marshall argues that the analytical framework for evaluating Second
Amendment claims set forth in Bruen and Rahimi requires that this Court
sustain his as-applied challenge to § 922(g)(1). 3 Defendants respond that
3 Although the government has not challenged Marshall’s standing to sue, I have an independent obligation to ensure that Marshall’s suit satisfies the requirements of Article III. Article III requires that a litigant allege facts sufficient to support injury in fact, redressability, and traceability in order to be heard in federal court. See Conservation L. Found., Inc. v. Acad. Express, LLC, 129 F.4th 78, 86 (1st Cir. 2025) (citing Spokeo Inc. v. Robins, 578 U.S. 330, 338 (2016)). Marshall frames his injury as his inability to purchase a
11 Marshall’s challenge is foreclosed by the First Circuit’s pre-Bruen decision in
Torres-Rosario. I address these competing claims by first explaining why
Torres-Rosario remains binding precedent. I then turn to Marshall’s
argument that the Second Amendment does not permit § 922(g)(1) to be used
to disarm a person based solely on prior OUI convictions.
The Supreme Court made it clear that it was announcing a new
analytical framework for evaluating Second Amendment claims in Bruen. As
a general proposition, I recognize that inferior federal courts should adhere to
both the holdings of the Supreme Court and the “mode of analysis” used by
the court in reaching its decisions. See, e.g., Williams, 113 F.4th at 645
(revisiting Sixth Circuit precedent post-Bruen in light of the Supreme Court’s
new mode of analysis). But I am also mindful of the First Circuit’s directive
that “[u]ntil a court of appeals revokes a binding precedent, a district court
firearm at a licensed retailer in New Hampshire because his Massachusetts convictions caused him to fail a federally mandated background check. The background check process is the primary means through which the federal government keeps firearms out of the hands of people prohibited from possessing them under § 922(g). Seeking relief from this injury and arguing that the statute should not apply to him, Marshall asks this Court to enjoin the federal government from enforcing § 922(g)(1) and its derivative regulations against him. He also seeks declaratory relief under the Declaratory Judgment Act. Because the requested relief would redress Marshall’s inability to obtain a firearm, I conclude that he has standing to bring this suit. See Range v. Att’y Gen., 53 F.4th 262, 269 n.7 (explaining why a litigant who attempted to purchase a firearm in a situation similar to Marshall’s has standing under Article III).
12 within the circuit is hard put to ignore that precedent unless it has
unmistakably been cast into disrepute by supervening authority.” Eulitt v.
Maine, Dep’t of Educ., 386 F.3d 344, 349 (1st Cir. 2004), abrogation on other
grounds recognized by Carson v. Makin, 596 U.S. 767 (2022). Given the
Supreme Court’s repeated suggestions in Heller, McDonald, and Rahimi that
Second Amendment challenges to felon-in-possession laws require different
treatment than the laws at issue in those cases, it is not unmistakably clear
that our circuit’s precedents in this area have been cast into disrepute.
Accordingly, I agree with the Fourth, Ninth, Tenth, and Eleventh Circuits
that neither Bruen nor Rahimi provide a basis to disregard otherwise
controlling circuit precedent rejecting Second Amendment challenges to
§ 922(g)(1).
Finally, even if I were to take the offense-by-offense approach and
review the constitutionality of § 922(g)(1) as applied specifically to someone
with Marshall’s Massachusetts misdemeanor OUI convictions, the First
Circuit’s guidance in Torres-Rosario still charts a clear path to dismissal
because OUI is not an offense that is “so tame and technical as to be
insufficient to justify the [firearms possession] bar.” Torres-Rosario, 658 F.3d
at 113. Following the Supreme Court’s lead in Rahimi, courts taking an
offense-by-offense approach have looked at dangerousness as the relevant
heuristic: “A person convicted of a crime is ‘dangerous,’ and can thus be
13 disarmed, if he has committed [. . .] a crime that inherently poses a
significant threat of danger.” Williams, 113 F.4th at 663. Were the First
Circuit to require such an approach, the question here would be whether a
second-offense OUI conviction is a crime that is dangerous enough to support
disarmament.
An OUI second offense is, in and of itself, dangerous. Though
Massachusetts classifies the conduct as a misdemeanor, it is nonetheless
serious conduct of the type that places the misdemeanant in the category of
people who “present a credible threat to the physical safety of others.” See
Rahimi, 602 U.S. at 700. A second-offense OUI conviction suggests not just a
one-time mistake or blip but repeated disregard for the law and for the safety
of others. In this instance, Marshall was convicted of OUIs in Massachusetts
twice over the course of a decade. This ongoing reckless conduct is exactly the
type that poses a serious threat to the community. As the Supreme Court has
emphasized in its own opinions, “[d]runk driving is an extremely dangerous
crime.” Begay v. United States, 553 U.S. 137, 141 (2008), abrogated on other
grounds by Johnson v. United States, 576 U.S. 591 (2015); accord Virginia v.
Harris, 558 U.S. 978, 979-80 (2009) (Mem.) (Roberts, C.J., dissenting from
denial of writ of certiorari) (“There is no question that drunk driving is a
serious and potentially deadly crime.”).
14 Though fatalities in motor vehicle traffic crashes involving alcohol-
impaired drivers have been trending steadily downward since the 1980s,
recent data from the federal Department of Transportation suggest that the
dangers and risk are still significant. Compare Nat’l Highway Traffic Safety
Admin., Traffic Safey Facts, 2022 Data [hereinafter “2022 Traffic Data”],
with Nat’l Highway Traffic Safety Admin., Traffic Safety Facts 2004: A
Compilation of Motor Vehicle Crash Data from the Fatality Analysis
Reporting System and the General Estimates System, at 32 (including
statistics from 1982 to 2004). In 2022, 13,524 traffic fatalities, or thirty-two
percent of all fatalities, involved an alcohol-impaired driver. 2022 Traffic
Data, at 6.
Repeated drunk driving is not akin to making a false statement on a
food stamps application—the relatively tame and technical crime that the
Third Circuit found could not constitutionally give rise to disarmament. See
Range II, 124 F.4th at 231-32. Instead, repeated drunk driving is a serious
offense that poses a significant risk of danger to the safety of others. The fact
that states differ on how to penalize OUI offenders does not change the
reality of its dangerousness. See Holloway v. Att’y Gen., 948 F.3d 164, 175-76
(3d Cir. 2020), abrogation recognized by Range II, 124 F.4th. “All three
branches of the federal government have recognized” that repeated drunk
driving creates serious and imminent dangers. Id. at 175 (citing Birchfield v.
15 North Dakota, 579 U.S. 438, 465-66 (2016), to summarize the actions taken
by Congress and federal agencies, including the National Highway Traffic
Safety Administration, to combat the dangers of drunk driving).
In addition, research shows that there is an increased danger
associated with the use of firearms when alcohol is involved. See Doc. 7-1 at
33-35. The government in this case has marshaled significant evidence to
support this conclusion: Peer-reviewed scientific studies have found that a
significant percentage of homicides and suicides involve an acutely
intoxicated perpetrator. See Charles C. Branas, Alcohol Use and Firearm
Violence, 38 Epidemiologic Rev. 32, 36-37 (2016). In addition, at least one
study has identified an increased likelihood of arrest for violent crimes
among handgun purchasers with prior OUI-type convictions. See Rose M. C.
Kagawa et al., Association of Prior Convictions for Driving Under the
Influence with Risk of Subsequent Arrest for Violent Crimes Among
Handgun Purchasers, 180 J. of Am. Med. Ass’n: Internal Med. 35, 38 (2019).
This persuasive evidence underscores the dangers of allowing someone with
multiple alcohol-related convictions access to firearms. Even taking the
offense-by-offense approach entertained by the First Circuit in Torres-Rosario
16 as an eventual possibility, Marshall can be constitutionally disarmed because
of his underlying OUI convictions. 4
IV. CONCLUSION
For the reasons explained above, I grant defendants’ motion to dismiss.
See Doc. 7. The clerk shall enter judgment in accordance with this
memorandum and order and close the case.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
June 3, 2025
cc: Counsel of Record
4 According to Marshall’s complaint, his last OUI conviction occurred approximately 20 years ago. In explaining why OUI is a dangerous criminal offense, I do not mean to imply that Marshall remains a dangerous person under existing law, that is a judgment that is entrusted to the United States Attorney General by § 925(c).