Correctional Status as a Disarming Condition: The Fifth Circuit Confirms State Probation Forecloses § 922(g)(1) As‑Applied Second Amendment Challenges

Introduction

In United States v. Zinnerman, No. 24-30310 (5th Cir. Apr. 2, 2025) (per curiam) (unpublished), the Fifth Circuit reaffirmed, and meaningfully extended, its post‑Bruen Second Amendment jurisprudence governing 18 U.S.C. § 922(g)(1). Against the backdrop of the Supreme Court’s historical‑tradition method announced in New York State Rifle & Pistol Ass’n v. Bruen and clarified in United States v. Rahimi, the panel held that a defendant’s correctional status—here, state felony probation—disposes of an as‑applied challenge to the felon‑in‑possession statute. The court also reiterated that Fifth Circuit precedent forecloses facial attacks on § 922(g)(1).

The case arose from a traffic stop that escalated into a chase and the recovery of a stashed handgun. The defendant, Joseph Anthony Zinnerman, Jr., a convicted felon, moved to dismiss his felon‑in‑possession indictment as unconstitutional under the Second Amendment (citing Bruen) and under the Commerce Clause. The district court denied the motion. On appeal, he pursued Second Amendment challenges—both facial and as‑applied. The Fifth Circuit affirmed.

Summary of the Opinion

Facial challenge: Foreclosed by the Fifth Circuit’s published decision in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), which held that applying § 922(g)(1) fits within the Nation’s historical tradition of firearm regulation under Bruen and Rahimi.
As‑applied challenge: Preserved and reviewed de novo. Rejected based on the defendant’s correctional status; because Zinnerman was on state felony probation when he possessed the firearm, his challenge is foreclosed by United States v. Contreras, 125 F.4th 725 (5th Cir. 2025), and United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025).
Diaz/Giglio harmony: The panel clarified there is no conflict. Diaz disregarded certain contemporaneous or non‑predicate offenses as “triggers” for disarmament; Giglio (and now Zinnerman) focus on the punishment component of the predicate felony—parole, probation, or supervised release—as an historically supported, temporary disarmament condition while the sentence is being served.
State versus federal supervision: It does not matter that Contreras and Giglio involved federal supervised release while Zinnerman involved state probation. The historical tradition applies equally to parole, probation, and supervised release.
Holding: AFFIRMED. The facial challenge fails under Diaz; the as‑applied challenge fails under Contreras and Giglio because a person still serving a sentence may be disarmed under the Second Amendment’s historical tradition.

Analysis

Precedents Cited and How They Shaped the Outcome

The opinion’s reasoning is built on a tight set of precedents that together map the Fifth Circuit’s post‑Bruen approach to felon‑in‑possession cases, especially where defendants remain under criminal justice supervision.

Bruen (597 U.S. 1 (2022)). Bruen replaced means‑end scrutiny with a historical‑tradition test: once conduct falls within the Second Amendment’s text, the government must show a historical analogue supporting the regulation. Although Bruen did not directly address felon‑in‑possession, it frames all modern Second Amendment challenges.
Rahimi (602 U.S. 680 (2024)). Rahimi applied Bruen and upheld firearm dispossession for those subject to domestic violence restraining orders, emphasizing a “tradition” of disarming dangerous persons and persons temporarily bound by lawful judicial restraints. The Fifth Circuit quotes Rahimi’s “fits neatly” turn of phrase when measuring modern regulations against historical analogues.
Diaz (116 F.4th 458 (5th Cir. 2024), cert. petition filed No. 24-6625 (Feb. 18, 2025)). Diaz is the Fifth Circuit’s controlling, published decision upholding § 922(g)(1), both facially and as applied in that case. Diaz anchors the court’s conclusion that facial challenges to § 922(g)(1) are foreclosed in this circuit. Importantly, Diaz explained that dismissed charges, misdemeanors, and contemporaneous conduct do not supply the historical “trigger” for disarmament. Zinnerman tried to leverage this point to argue that his parole/probation status was irrelevant; the panel disagreed, clarifying Diaz’s scope.
Contreras (125 F.4th 725 (5th Cir. 2025)). Contreras rejected an as‑applied challenge to § 922(g)(1) on the ground that the defendant was on supervised release—a component of his sentence—when he possessed the firearm. The panel embraced a historical tradition of “forfeiture” or temporary disarmament during sentence service.
Giglio (126 F.4th 1039 (5th Cir. 2025)). Giglio held expressly that the government may disarm persons “who continue to serve sentences for felony convictions” and endorsed the historical tradition supporting disarmament of those on parole, probation, or supervised release. It also rejected the argument that courts cannot consider supervised release simply because § 922(g)(1) does not mention it; the relevant point is that supervision is part of the punishment for the predicate felony.
Goins (6th Cir. 2024) (Bush, J., concurring) and Moore (3d Cir. 2024). Cited by Contreras and Giglio, these decisions support the principle that supervised release is part of a sentence, and that our tradition includes temporary disarmament as a consequence of punishment.
Johnson v. Owens (5th Cir. 2015) (unpublished). Recognizes that probation is comparable to supervised release, supporting the extension from federal supervised release to state probation.
Standards-of-review precedents: United States v. Howard, 766 F.3d 414 (5th Cir. 2014) (preserved constitutional challenges reviewed de novo), United States v. Hearns, 845 F.3d 641 (5th Cir. 2017) (what it means to preserve an argument), and United States v. Penn, 969 F.3d 450 (5th Cir. 2020) (preservation principles). These cases underpin the panel’s threshold ruling that Zinnerman preserved his as‑applied challenge.

The Court’s Legal Reasoning

The panel’s reasoning unfolds in three steps: facial challenge, preservation, and as‑applied challenge on the merits.

Facial challenge. Relying on Diaz, the court summarily rejects the facial attack. Diaz held that application of § 922(g)(1) “fits neatly” within the Nation’s historical tradition under Bruen/Rahimi; therefore, a facial claim (which requires showing the statute is unconstitutional in all its applications) cannot succeed in the Fifth Circuit.
Preservation and standard of review. The government argued that Zinnerman failed to preserve an as‑applied challenge because his motion below only gestured at it. The panel reviews the record and finds preservation. Two points matter:
- The motion expressly stated that § 922(g)(1) is unconstitutional “as applied to Mr. Zinnerman.”
- The district court promptly engaged the as‑applied issue and ruled on it. Because the trial court had a fair opportunity to resolve the as‑applied claim, preservation is satisfied and de novo review applies.
As‑applied challenge on the merits. The core dispute is whether, given his non‑violent drug felonies, historical tradition allows disarming Zinnerman. The panel does not engage the non‑violence argument because a different, dispositive fact controls: Zinnerman was on state felony probation when he possessed the firearm.
- Contreras and Giglio. These Fifth Circuit decisions hold that the Second Amendment permits the government to disarm individuals still serving part of their criminal sentence—whether labeled supervised release, parole, or probation—because historical “forfeiture” laws temporarily disarmed offenders during their sentence.
- Diaz is not to the contrary. Diaz’s instruction to disregard certain contemporaneous or dismissed charges as a basis for disarmament does not preclude considering the defendant’s correctional status. Correctional status is part of the punishment for the predicate felony and falls within the accepted historical analogue of temporary disarmament during sentence service.
- State versus federal supervision does not matter. Giglio and Contreras involved federal supervised release, but the court cites authority equating state probation with federal supervised release for these purposes and expressly extends the principle to state probation.
- Other government arguments (e.g., violent conduct, domestic violence misdemeanors) are unnecessary to reach. The probation status alone is dispositive.

Impact and Future Litigation

Although unpublished, the opinion consolidates the Fifth Circuit’s approach and conveys several practice‑critical lessons.

Bright‑line rule for those under supervision. In the Fifth Circuit, defendants on parole, probation, or supervised release when they possess a firearm face an almost categorical barrier to as‑applied Second Amendment challenges to § 922(g)(1). The court roots this in the historical tradition of temporary disarmament as a component of punishment.
State supervision treated the same as federal supervision. By extending Contreras/Giglio to state probation expressly, the panel removes any doubt that the same rule governs whether supervision is imposed by federal or state authorities.
Diaz remains the linchpin for facial challenges. Diaz forecloses facial attacks on § 922(g)(1) in the Fifth Circuit. Counsel should be aware that a petition for certiorari is pending in Diaz (No. 24‑6625), and any Supreme Court action could alter the landscape; but for now, Diaz controls.
Clarification of Diaz’s scope. The court’s reconciliation of Diaz and Giglio matters. Diaz’s admonition to ignore dismissed, misdemeanor, or contemporaneous offenses as “triggers” does not prevent courts from considering the defendant’s ongoing sentence status. That status is part of the predicate felony’s punishment and historically supports temporary disarmament.
Preservation guidance. A bare assertion of an “as‑applied” challenge can suffice if the district court addresses and rules on it. Still, best practice is to develop the factual record and specific grounds for the as‑applied claim to avoid plain‑error review disputes.
Unresolved terrain. The opinion leaves for another day the scope of as‑applied challenges by non‑violent felons who have fully completed their sentences and are no longer under supervision. Diaz addressed the statute’s constitutionality and found it could be applied consistent with history, but post‑Bruen as‑applied litigation for fully discharged, non‑violent offenders remains a live issue in various courts.
Charging and sentencing strategy. Prosecutors can be confident that possession while on any form of criminal justice supervision will defeat as‑applied Bruen challenges in the Fifth Circuit. Defense counsel should focus as‑applied arguments, if any, on defendants who have fully completed their sentences and can marshal historical evidence distinguishing their circumstances from historically disarmed classes.

Complex Concepts Simplified

Felon‑in‑possession, § 922(g)(1). A federal crime prohibiting firearm possession by anyone convicted of a felony (generally, a crime punishable by more than one year of imprisonment).
Facial vs. as‑applied challenges. A facial challenge argues a law is unconstitutional in all its applications; an as‑applied challenge argues that applying the law to a specific person or set of facts is unconstitutional.
Bruen’s historical‑tradition test. Courts first ask whether the Second Amendment’s text covers the conduct; if so, the government must show the regulation is consistent with the Nation’s historical tradition of firearm regulation. Courts seek “relevantly similar” historical analogues, not exact twins.
Temporary disarmament and forfeiture laws. Historical sources reflect that individuals could be temporarily disarmed as part of punishment or restraint during the service of a sentence or under judicial control, supporting modern disarmament of probationers, parolees, and those on supervised release.
Parole, probation, and supervised release. All are forms of community‑based supervision:
- Probation: court‑imposed supervision often in lieu of incarceration (commonly a state function).
- Parole: conditional early release from incarceration, subject to supervision and conditions.
- Supervised release: federal post‑imprisonment supervision that is part of the sentence.
For Second Amendment analysis in the Fifth Circuit, all three are treated as “serving a sentence.”
Standards of review. De novo review means the appellate court decides the legal issue afresh. Plain‑error review is deferential and applies to unpreserved claims; it generally requires a clear or obvious error that affected substantial rights and seriously affects the fairness of the proceedings.
Contemporaneous versus predicate offenses. Diaz instructs courts not to use separate, contemporaneous conduct (e.g., misdemeanors committed at the same time) as the historical “trigger” for disarmament under § 922(g)(1). By contrast, the punishment associated with the predicate felony (including supervision) remains directly relevant.

Conclusion

United States v. Zinnerman is a concise but consequential confirmation of the Fifth Circuit’s trajectory in post‑Bruen felon‑in‑possession cases. It cements three propositions.

Facial challenges to § 922(g)(1) are foreclosed by Diaz in the Fifth Circuit.
As‑applied challenges fail where the defendant is on parole, probation, or supervised release at the time of possession; historical tradition supports temporary disarmament while serving a sentence, and that principle applies equally to state and federal supervision.
Diaz and Giglio coexist: courts disregard contemporaneous or non‑predicate offenses as triggers, but may and should consider correctional status because it is part of the predicate felony’s punishment and has strong historical pedigree.

Although unpublished, the opinion synthesizes controlling authorities and extends them expressly to state probation. For practitioners, it offers both a roadmap and a warning: in the Fifth Circuit, correctional status at the time of firearm possession will almost invariably foreclose an as‑applied Second Amendment attack on § 922(g)(1). The larger, unresolved questions—especially challenges by fully discharged non‑violent felons—await further development and, potentially, guidance from the Supreme Court as it considers petitions like Diaz.