First Circuit Revives New Hampshire Man's Challenge to Federal Gun Ban Over Two DUI Convictions

On November 13, 2026, the First Circuit revived a New Hampshire man’s Second Amendment challenge to the federal law that bars him from owning a gun because of two drunk-driving convictions, ruling that the 2011 precedent the trial court relied on no longer controls. The three-judge panel’s 35-page opinion in Marshall v. Blanche, No. 25-1721, vacates the dismissal of Thomas Marshall’s suit and sends it back to the District of New Hampshire for a full analysis under the Supreme Court’s Bruen framework.

Marshall was convicted in Massachusetts of driving under the influence in 1997 and again in 2005. The offense carries up to two and a half years in prison, so each conviction counts as a crime punishable by more than a year under 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute. He moved to New Hampshire in 2023 and tried to buy a firearm that year. New Hampshire State Police told him the FBI had denied the purchase because of the two convictions. In June 2024 he sued the attorney general, the ATF director and the FBI director, seeking a declaration that the statute violates his right to keep and bear arms and an injunction against its enforcement against him. He told the court he intends to buy and keep a handgun and a long gun for self-defense at home.

U.S. District Judge Paul J. Barbadoro dismissed the complaint in June 2025. He held that the First Circuit’s 2011 decision in United States v. Torres-Rosario, which largely foreclosed as-applied challenges to the statute, remained binding, and that Marshall’s “repeated drunk driving” was not the kind of tame and technical offense that decision left room to exempt.

Chief Judge David Barron, writing for a panel that included Judges Sandra Lynch and Lara Montecalvo, said that reasoning no longer holds. In United States v. Levasseur, decided September 16, 2026, the court applied Bruen’s two-step test to an as-applied challenge to the same statute, asking first whether the Second Amendment’s text covers the conduct and then how and why the regulation burdens the right. “At least in light of our decision in Levasseur, we no longer think that Torres-Rosario controls,” the panel wrote. Because the trial court never undertook that why-and-how analysis, the First Circuit remanded for it to do so. Levasseur himself lost: the court affirmed his conviction, holding that a methamphetamine possession felony put him among people who can be disarmed.

Much of the opinion turns on standing, which the panel raised on its own after oral argument and ordered supplemental briefing on. The court held that Marshall’s bare intent to possess “a firearm” does not give him standing to attack the statute’s criminal possession ban. Section 922(g)(1) reaches only firearms that have been shipped or transported in interstate or foreign commerce, and Marshall never alleged that the gun he wants fits that description. The panel noted that New Hampshire had at least 30 federally licensed firearms manufacturing facilities in 2023, so a gun bought there need not have crossed a state line. “Simply put, § 922(g)(1) does not make it a crime, even arguably, for Marshall to possess any firearm just because it is one,” Barron wrote, adding that while the Second Amendment is not a second-class right, “it also is not a preferred one.”

Marshall does have standing, the court said, to challenge the use of his record in the federal background check system that blocked his purchase. That claim goes back to the district court, which must decide it under Bruen and consider the Justice Department’s new rights-restoration process under 28 C.F.R. Part 107, which lets prohibited persons apply to the attorney general to regain their firearm rights. The government told the court in a February 11 letter that the attorney general had granted relief to 22 people. Marshall has not agreed to pause his appeal to apply, and the parties dispute whether the process forecloses his claim. The panel also flagged that restrictions on commercial sales may raise different historical questions from a ban on mere possession, a point it left for the trial court.

Kyle Singhal of Hopwood & Singhal argued for Marshall. Joshua K. Handell of the Justice Department argued for the government. Attorney General Todd Blanche and ATF Director Robert Cekada were substituted as defendants for their predecessors. The Supreme Court on November 9 declined to hear Holloway v. Brown, a challenge to Washington’s state ban on gun possession after two DUI misdemeanors, so Marshall’s case is now among the few testing a DUI-based federal prohibition after Bruen.