The U.S. Court of Appeals for the First Circuit on Nov. 13 vacated a New Hampshire federal judge's dismissal of Thomas Marshall's Second Amendment lawsuit and sent it back to the district court to decide the merits of his challenge to the federal background-check system that blocked his gun purchase. The court did not decide whether the federal ban on gun possession by people with certain prior convictions is unconstitutional as applied to Marshall, and it found he had not shown standing to challenge criminal enforcement of the possession ban based on his stated plan to own a gun.
According to his complaint, Marshall was convicted of drunken driving in Massachusetts in 1997 and 2005, under a statute that allows up to two and a half years in prison. He moved to New Hampshire in 2023 and tried to buy a firearm. According to the opinion, a letter from the New Hampshire State Police Permits and Licensing Unit said he was denied because a background check found his convictions were federal disqualifiers under 18 U.S.C. 922(g)(1), which bars people convicted of crimes punishable by more than a year in prison from possessing firearms.
Marshall sued Attorney General Todd Blanche, the directors of the ATF and FBI, and the United States in June 2024, and U.S. District Judge Paul Barbadoro dismissed the complaint in June 2025. Barbadoro concluded that a 2011 First Circuit decision, United States v. Torres-Rosario, still bound him and left room only for challenges to convictions that were "so tame and technical," and he found Marshall's repeated drunken driving did not qualify.
Writing for a panel of Chief Judge David Barron and Judges Sandra Lynch and Lara Montecalvo, Barron held that Torres-Rosario no longer controls. The court cited its Sept. 16, 2026, decision in United States v. Levasseur, which requires courts to apply the Supreme Court's Bruen framework, including a review of whether the regulation fits the nation's historical tradition of firearm regulation. Barbadoro had not done that analysis, so the panel remanded for him to do so.
The panel also ruled on standing, which the parties had agreed Marshall had. It found that his complaint did not allege that he intends to possess a firearm that has crossed state or national lines, the only kind the statute makes it a crime for him to possess. That gap, the court said, meant he could not bring a pre-enforcement challenge to criminal enforcement based on his plan to possess a gun. The opinion noted that at least 30 federally licensed firearms manufacturing facilities operated in New Hampshire in 2023. It saw no reason to disturb the district court's finding that he has standing to seek relief from the federal background check system that blocked his purchase, and it left open whether his purchase-based allegations support standing against criminal enforcement.
The court also pointed to a new Justice Department process, in federal regulations at 28 C.F.R. 107.1 through 107.80, under which prohibited people can apply to have their firearm rights restored. The parties disagree about how that process bears on Marshall's claim, and the panel left that question to the district court. A footnote says the government told the court in February 2026 that the attorney general had granted relief to 22 individuals. The panel said Marshall has not agreed to pause his appeal to use the process, and it did not say whether he has applied.
Kyle Singhal of Hopwood & Singhal PLLC represented Marshall. Joshua K. Handell of the Justice Department was among the lawyers for the government.
