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First Circuit, Marshall v. Blanche: standing and the Bruen framework in an as-applied challenge to § 922(g)(1)

On November 13, 2026, the First Circuit vacated the dismissal of a Second Amendment challenge to the federal felon-in-possession statute brought by a man with two prior DUI convictions. The court held he lacked standing to challenge criminal enforcement based on intended possession, but had standing as to background-check denials, and remanded for analysis under Bruen.

CourtNovember 13, 20264 min readThe Constilumen record

What happened

On November 13, 2026, the United States Court of Appeals for the First Circuit decided Marshall v. Blanche, No. 25-1721. Thomas Marshall, whose two Massachusetts convictions for driving under the influence were punishable by up to two and a half years in prison, brought a Second Amendment challenge to 18 U.S.C. § 922(g)(1) as applied to him, after a firearm purchase he attempted in New Hampshire in 2023 was denied following a federal background check. The District of New Hampshire dismissed the complaint, holding that the circuit's pre-Bruen decision in United States v. Torres-Rosario (2011) remained binding. The First Circuit vacated that judgment and remanded.

Chief Judge Barron wrote the opinion for a unanimous panel that also included Judges Lynch and Montecalvo. There was no separate concurrence or dissent.

What the opinion says

Standing based on intended possession. The court held that Marshall had not shown Article III standing for a pre-enforcement challenge to the criminal enforcement of § 922(g)(1) based on his stated intent to possess a firearm. Applying the "arguably proscribed" test of Susan B. Anthony List v. Driehaus, it reasoned that the statute reaches only a firearm that has been shipped or transported in interstate or foreign commerce, and that the complaint did not allege, expressly or impliedly, an intent to possess such a firearm. In the court's words: "Simply put, § 922(g)(1) does not make it a crime -- even arguably -- for Marshall to possess any firearm just because it is one. It makes it a crime for him to possess one that has been shipped or transported in interstate or foreign commerce." The court added that "while the Second Amendment is not a 'second-class right,' ... it also is not a preferred one."

Standing based on the denied purchase. The court agreed with the district court that Marshall has standing to seek forward-looking relief against the use of the federal background check system to bar him from buying a firearm on the basis of his convictions.

The merits framework. The court held that Torres-Rosario no longer controls: "at least in light of our decision in Levasseur, we no longer think that Torres-Rosario controls." It stated that an as-applied challenge to § 922(g)(1) is evaluated under the framework of New York State Rifle & Pistol Ass'n v. Bruen, and remanded for the district court to undertake the "why and how" analysis described in United States v. Rahimi. It did not decide the Second Amendment question itself.

Matters left for remand. The court directed the district court to consider the Department of Justice's new process for restoring firearm rights under 18 U.S.C. § 925(c) and 28 C.F.R. §§ 107.1-80, noting that the parties "dispute whether this restoration process on its own forecloses Marshall's as-applied challenge." It also observed that a challenge to background-check enforcement "might raise distinct issues from a criminal prohibition on the mere possession of a firearm," while stating that it did "not purport here to address whether that is the case." It left to the district court whether the purchase-based allegations give standing to challenge § 922(g)(1)'s criminal prohibition independently, and any questions about the scope of equitable relief.

The court concluded: "we vacate the District Court's judgment and remand for additional proceedings consistent with this opinion."

Where it sits in the record

The opinion applies the Second Amendment framework the Supreme Court set out in District of Columbia v. Heller (2008), New York State Rifle & Pistol Ass'n v. Bruen (2022) and United States v. Rahimi (2024). It relies on the First Circuit's September 2026 decision in United States v. Levasseur and cites the Third Circuit's October 2026 en banc decision in Williams v. Attorney General on standing. In discussing § 922(g)'s commerce element, it cites the Supreme Court's 2026 decision in United States v. Hemani and United States v. Lopez (1995).

Sources

Record updates report what happened and take no side. Signed analysis is kept apart, in Positions. Published November 15, 2026.

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