Affirming the Historical Tradition of Disarming Felons: § 922(g)(1) and the Bruen Framework

Introduction

United States v. Brown, No. 24-60490 (5th Cir. May 14, 2025), addresses whether 18 U.S.C. § 922(g)(1)—the federal prohibition on firearm possession by convicted felons—violates the Second Amendment as interpreted by New York State Rifle & Pistol Association v. Bruen (2022). Marcus Allen Brown, a Mississippi resident with prior felony convictions for burglary, drug possession, and unlawful firearms possession, was indicted for possessing a firearm in violation of §§ 922(g)(1) and 924(a)(2). Brown moved to dismiss under the Second Amendment, the Commerce Clause, void-for-vagueness doctrine, and equal protection, but the district court denied relief. He pleaded guilty, preserving only his Bruen‐based Second Amendment challenge. On appeal, the Fifth Circuit affirmed, rejecting both as-applied and facial Second Amendment attacks and finding other claims waived by plea agreement.

Summary of the Judgment

As-Applied Second Amendment Challenge: The court applied the two-step Bruen framework. It concluded that the conduct (felon in possession) is covered by the Amendment’s text and that disarming felons with burglary convictions aligns with the Founding‐era tradition of firearm regulation (notably, colonial burglary was often a capital offense).
Facial Second Amendment Challenge: Following United States v. Diaz, the court held that Brown cannot show § 922(g)(1) is invalid in all applications.
Other Constitutional Claims: Commerce Clause, vagueness, and equal protection arguments were forfeited by Brown’s voluntary plea waiver, which reserved only the right to appeal the district court’s Bruen‐based order.
Decision: The Fifth Circuit affirmed the district court’s judgment in full.

Analysis

1. Precedents Cited

Bruen (597 U.S. 1, 2022): Established the two-step framework requiring (1) that the Second Amendment’s plain text cover the regulated conduct and (2) that the regulation aligns with the Nation’s historical tradition of firearm regulation.
United States v. Schnur (132 F.4th 863, 5th Cir. 2025): Applied Bruen to uphold § 922(g)(1) against as-applied challenges based on colonial capital‐punishment analogies.
United States v. Diaz (116 F.4th 458, 5th Cir. 2024): Held that § 922(g)(1) survives facial Second Amendment attack and is consistent with Founding‐era theft and burglary punishments.
United States v. Quiroz (125 F.4th 713, 5th Cir. 2025): Distinguished permanent disarmament (§ 922(g)(1)) from temporary disarmament (§ 922(n)) but upheld both under historical analogies to capital punishment for burglary.
United States v. Salerno (481 U.S. 739, 1987): The standard for facial challenges (“no set of circumstances” test).
Other Fifth Circuit precedent on plea‐waiver enforceability and Commerce Clause/equal protection challenges to § 922(g)(1).

2. Legal Reasoning

The court began with Bruen’s two-step test:

Textual Coverage: § 922(g)(1) regulates “possess[ion of] a firearm” by someone convicted of a felony punishable by more than one year—clearly within the Amendment’s textual scope (“keep and bear Arms”).
Historical Tradition: The government demonstrated that Founding‐era legal codes disarmed persons convicted of serious crimes, including burglary, often punishable by death. The court found a “relevantly similar” tradition supporting permanent disarmament:
- Colonial and early state laws routinely prescribed capital or transportation penalties for burglary and theft.
- If capital punishment was permissible to deter burglary, then disarming convicted burglars permanently is a lesser restriction in the historical continuum.

Applying these principles, the court held Brown’s as-applied challenge fails. It then rejected his facial attack under the Salerno standard, as § 922(g)(1) is valid in many applications. Finally, the court enforced Brown’s plea waiver, precluding his Commerce Clause, vagueness, and equal protection arguments.

3. Impact

This decision reinforces several key points for future litigation:

Felon-in-possession laws, even as permanently disarming statutes, remain constitutional under Bruen when historical analogues—especially capital punishment statutes for burglary and theft—are identified.
The Bruen framework is robustly applied: textual coverage plus historically consistent tradition, without requiring perfect analogues or unanimity in every jurisdiction.
Facial Second Amendment attacks face the high bar set by Salerno; litigants must identify a total lack of valid applications.
Plea agreement waivers will continue to foreclose collateral constitutional challenges not expressly reserved, emphasizing the importance of precise drafting and recordkeeping at plea colloquy.

Complex Concepts Simplified

Bruen Two-Step Test: A method for evaluating gun regulations: (1) Does the Second Amendment’s text cover the challenged conduct? (2) If so, is the regulation consistent with the historical tradition of firearms laws?
As-Applied vs. Facial Challenge: An as-applied challenge claims a law is unconstitutional in the specific facts at hand; a facial challenge claims a law is always unconstitutional in any context.
Historical Analogy: Courts seek “relevantly similar” laws from the founding era—e.g., disarming or punishing burglars—to justify modern regulations.
Plea Waiver: A contractual surrender of appeal rights. Courts enforce waivers if they are knowing, voluntary, and clearly cover the claims at issue.

Conclusion

United States v. Brown reaffirms the constitutionality of federal felon-in-possession restrictions under the Bruen framework. By anchoring § 922(g)(1) in Founding-era analogues—where burglary and theft could trigger capital punishment—the Fifth Circuit demonstrates that permanent disarmament of serious felons resonates with America’s historical tradition of firearm regulation. The decision also underscores that plea waivers, when properly executed, effectively bar collateral challenges. Brown thus cements a clear precedent: § 922(g)(1) survives both as-applied and facial Second Amendment scrutiny, ensuring that felons with significant criminal histories may be disarmed in the modern regulatory landscape.