5th Circuit on the Gun Possession “Dangerousness” Bandwagon – Update for September 5, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

5TH CIRCUIT SUGGESTS 922(g)(1) CAN’T APPLY TO NONVIOLENT OFFENDERS

Earnest Clark was on probation for a state aggravated assault with a gun charge when he was caught with yet another gun. He challenged his conviction for being a felon-in-possession (18 USC § 922(g)(1)) as violating his 2nd Amendment rights.

Last week, the 5th Circuit upheld his conviction but in a way that provides a roadmap for such “as-applied” challenges. (An “as-applied” challenge argues that while the F-I-P statute may not always violate the 2nd Amendment, it does violate the 2nd Amendment as it is applied to the individual facts of the defendant’s case).

The 5th agreed that Ernie’s conduct – possessing a gun – was plainly covered by the 2nd Amendment. However, the Circuit held, disarming him was consistent with the nation’s historical tradition of firearm regulation. Ernie’s predicate felony of aggravated assault with a firearm was a violent crime. The appellate court ruled that disarming people with violent criminal histories is consistent with historical tradition. Even if Ernie’s offense involved only negligent discharge of a firearm, it still fell “within the tradition” of disarming people who menace others with firearms or disrupt public order.

What’s more, the 5th held, Earnest possessed the gun while on probation, and § 922(g)(1) is constitutional when applied to those who possess firearms while on probation or supervised release.

The case strongly suggests that, consistent with the 2nd Amendment, someone with a nonviolent conviction who is not on probation cannot be convicted of F-I-P. What’s more, the decision advances the national trend of drawing a constitutional line between violent and nonviolent predicate offenses in F-I-P cases.

United States v. Clark, Case No. 24-60531, 2025 U.S.App. LEXIS 21452 (5th Cir. August 21, 2025)

~ Thomas L. Root