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5TH CIRCUIT UPHOLDS FELON-IN-POSSESSION CONSTITUTIONALITY AS APPLIED TO DEFENDANT WITH VIOLENT PAST

The 5th Circuit last week upheld the constitutionality of 18 USC § 921(g)(1)’s felon-in-possession statute as applied to a defendant with a prior aggravated battery conviction.

Comparing the battery offense to Colonial era “armed and affray” laws, the Circuit ruled that the 2nd Amendment permits disarming people like the defendant, Jeremy Schnur.

The 5th said Jeremy’s “violent aggravated battery conviction is analogous to, and arguably more dangerous than, the ‘prototypical affray [which] involved fighting in public,’ the precursor to the ‘going armed’ laws punishable by arms forfeiture… These affray and going armed laws were intended to “mitigate demonstrated threats of physical violence similar to that displayed by Schnur when he perpetrated the aggravated battery offense [and] supports a tradition of disarming individuals like Schnur pursuant to § 922(g)(1), whose underlying conviction stemmed from the threat and commission of violence.”

The 5th’s approach continues to suggest that those with nonviolent felonies in their background cannot be held subject to the felon-in-possession statute consistent with the 2nd Amendment. This approach has been adopted by the 3rd Circuit in Range v. Atty General and suggested by the 6th Circuit in United States v. Williams. The same question is currently on en banc review in the 9th Circuit’s United States v. Duarte.

United States v. Schnur, Case No. 23-60621, 2025 U.S. App. LEXIS 7030 (5th Cir. March 26, 2025)

– Thomas L. Root