United States v. Schnur: Fifth Circuit confirms § 922(g)(1) constitutionally applies to felons with violent or theft predicates—even when the predicate offense did not involve a firearm

Introduction

In United States v. Schnur, the U.S. Court of Appeals for the Fifth Circuit reaffirmed, and meaningfully clarified, the constitutionality of the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), under the Supreme Court’s text-and-history framework from New York State Rifle & Pistol Association v. Bruen. The court held that Congress may disarm a person with Schnur’s criminal history—aggravated battery causing great bodily harm (2016), robbery (1994), and burglary (1996)—because his prior offenses align with historical traditions of disarming dangerous individuals and severely punishing theft at the Founding. Notably, the panel made clear that the violent predicate need not itself involve a firearm for § 922(g)(1) to be constitutionally applied.

The case arises from the arrest of Jeremy Jason Schnur, a multi‑felon who was found in possession of a loaded 9mm pistol in a Biloxi casino parking garage. He brought an as-applied Second Amendment challenge to § 922(g)(1). The district court denied the motion, and after a bench trial based on stipulations, convicted him and imposed a 78‑month sentence. On appeal, the Fifth Circuit reviewed de novo and affirmed. Judge Douglas authored the opinion; Judge Higginson concurred separately to caution against turning every § 922(g)(1) prosecution into a predicate‑by‑predicate historical inquiry and to highlight cross‑circuit deference to the Supreme Court’s assurances that felon dispossession is permissible.

Summary of the Opinion

Applying Bruen’s two‑step test, the court first accepted that the Second Amendment’s “plain text” covers Schnur’s conduct—he is among “the people,” and possession of a firearm is core conduct. The burden therefore shifted to the Government to demonstrate that disarming Schnur is consistent with the Nation’s historical tradition of firearm regulation.

The panel identified two independent historical justifications that each sustain § 922(g)(1) as applied to Schnur:

Violent-crime tradition: Drawing on United States v. Bullock and United States v. Isaac, the court held that Founding‑era “going armed” and affray laws aimed at “mitigat[ing] demonstrated threats of physical violence” justify disarming individuals convicted of violent crimes. Schnur’s aggravated battery conviction—requiring intentional or knowing infliction of great bodily harm—places him within the class of “dangerous” persons historically disarmed, even though his violent offense did not involve a firearm.
Theft tradition: Relying on United States v. Diaz, the court held that Founding‑era laws treated theft as a serious felony often punishable by death or estate forfeiture; modern dispossession of convicted thieves therefore fits within historical tradition. Schnur’s robbery and burglary convictions independently foreclose his as‑applied challenge.

Because either line of historical tradition suffices, the Fifth Circuit affirmed the denial of the motion to dismiss and the judgment of conviction.

Analysis

Precedents Cited and How They Shaped the Decision

District of Columbia v. Heller (2008): Recognized an individual right to keep and bear arms while emphasizing the right is “not unlimited” and acknowledging the permissibility of “longstanding prohibitions.” Schnur relies on this baseline limitation to frame the inquiry.
New York State Rifle & Pistol Ass’n v. Bruen (2022): Supplies the controlling two‑part framework—(1) if the Second Amendment’s plain text covers the conduct, it is presumptively protected; (2) the Government must then show the regulation is consistent with the Nation’s historical tradition. Schnur rigorously adheres to this method.
United States v. Rahimi (2024): Upheld § 922(g)(8) (domestic‑violence restraining orders) by analogizing to Founding‑era “going armed” and affray laws that imposed forfeiture of arms or imprisonment to prevent threats of physical harm. Schnur imports Rahimi’s core insight: disarming those who pose a clear threat of violence is historically grounded.
United States v. Diaz (5th Cir. 2024): Held § 922(g)(1) constitutional as applied to a defendant with a theft predicate, reasoning that Founding‑era theft was a capital or estate‑forfeiture offense—severe sanctions that make modern dispossession historically comparable. Diaz also recognized that felons are among “the people,” placing the burden on the Government at step two. Schnur extends Diaz to robbery and burglary and uses Diaz’s “a fortiori” logic: if car theft supports dispossession, violent felonies certainly do.
United States v. Bullock (5th Cir. 2024) (per curiam): Reversed a dismissal of a § 922(g)(1) indictment where predicates were aggravated assault and manslaughter, holding that violent-crime predicates align with historical disarmament of dangerous persons.
United States v. Isaac (5th Cir. 2024) (unpublished): Denied an as‑applied challenge by a defendant with aggravated assault with a deadly weapon, emphasizing the historical practice of barring weapon misuse to harm or menace others. Schnur quotes Isaac’s “fits easily” language and its “a fortiori” reliance on Diaz.
Borden v. United States (2021): Construed “violent felony” under ACCA to require purposeful or knowing force, not mere recklessness. Schnur cites Borden to underscore that Florida aggravated battery requires intentional or knowing causation of great bodily harm—bolstering the predicate’s violent character.
United States v. Contreras (5th Cir. 2025): Observes that history reflects multiple reasons to disarm felons, including threats to public safety and the orderly functioning of society. Schnur uses this to support disarmament beyond firearm‑involved violence.
Range v. Attorney General (3d Cir. 2023) (en banc) (concurring opinion), vacated 2024: Cited for the proposition that Reconstruction‑era laws sought to keep arms from those who threatened the orderly functioning of society, reinforcing the safety‑and‑order rationale.
United States v. Williams (6th Cir. 2024): Recognizes that legislatures may disarm groups they believe dangerous and that violent crime strongly evidences dangerousness. Schnur cites Williams in support of its dangerous‑individual principle.
Standard‑of‑review authorities: United States v. Howard and United States v. Clark (5th Cir.) (de novo review for preserved constitutional challenges), and Garner v. U.S. Department of Labor (5th Cir.). A footnote explains that de novo review renders alleged district‑court analytic missteps harmless.
Concurring citations: Judge Higginson references Lewis v. United States (1980) (no collateral attack on the validity of predicate convictions in § 922(g) prosecutions) and highlights cross‑circuit decisions (Jackson, Langston, Hunt, Vincent, Hester) reflecting deference to the Supreme Court’s repeated assurances that felon disarmament is constitutional, cautioning against an unwieldy predicate‑by‑predicate regime.

Legal Reasoning

Step One—Plain text: The court reiterates Fifth Circuit precedent that felons are among “the people” protected by the Second Amendment and that firearm possession falls within the amendment’s plain text. This avoids narrowing the textual scope to “law‑abiding” persons at step one and places the historical burden squarely on the Government.

Step Two—Historical tradition: The Government met its burden by pointing to two well‑developed historical lines.

Violent-offender disarmament:
- Using Rahimi, the court anchors its analysis in the Founding‑era “going armed” and affray traditions that authorized arms forfeiture and imprisonment to prevent and punish menacing, violent conduct. The court reasons that violent felonies are “relevantly similar” to those historic offenses in both justification (mitigating threats of physical violence) and burden (temporary loss of arms to prevent misuse).
- Bullock and Isaac establish within the Fifth Circuit that violent‑crime predicates constitutionally justify dispossession. Schnur’s aggravated battery—an intentional or knowing infliction of great bodily harm—squarely marks him as dangerous. The opinion expressly dispels any suggestion that the historical tradition requires the predicate violent offense to involve a firearm; violent misuse of force is sufficient. The court also notes Schnur brandished a taser in the underlying incident, underscoring the menace even absent a firearm.
Severe punishment of theft:
- Diaz canvassed colonial and Founding‑era laws to show theft was a felony often punishable by death or estate forfeiture, making modern dispossession historically comparable. Schnur’s robbery and burglary convictions independently suffice to sustain § 922(g)(1) under Diaz’s rationale, a point the court reinforces by citing subsequent Fifth Circuit applications (Collette, Charles) and by noting Quiroz’s discussion in the § 922(n) context.

The panel also adds texture with two doctrinal refinements:

Dangerousness and social order: Citing Contreras and the Range concurrence, the court frames historical disarmament as tied to protecting public safety and the “orderly functioning of society”—a rationale not limited to firearm‑involved violence and compatible with Diaz’s theft analysis.
Elements and facts: While the opinion confirms the aggravated battery predicate meets “crime of violence” elements (under Borden), it also recounts the underlying conduct (a brutal beating with a taser present). This indicates that, in the as‑applied Second Amendment context, courts may consider both the legal character of the offense and its real‑world facts when assessing dangerousness—a point the concurrence flags as potentially requiring clearer guidance if adopted systematically.

The Concurring Opinion

Judge Higginson agrees the outcome follows from Diaz and Bullock but cautions against reading Diaz to mandate a Bruen‑style, predicate‑by‑predicate historical analysis in every § 922(g)(1) case. He urges deference to the Supreme Court’s repeated assurances that felon dispossession is constitutional (as several circuits have done), noting Lewis’s prohibition on collateral attacks on predicate convictions and warning that, absent deference, courts will need to craft and communicate a workable dangerousness framework, including who decides it, how, and on what record. His concurrence highlights a developing inter‑circuit posture: while the Fifth Circuit has embraced detailed as‑applied analyses, other circuits have opted for categorical or deferential approaches pending further Supreme Court direction.

Impact and Implications

Violent predicate need not involve firearms: Schnur extends Bullock by squarely holding that violent felonies without firearm use (here, aggravated battery causing great bodily harm) still justify dispossession under § 922(g)(1). The historical touchstone is dangerousness, not weapon type.
Diaz’s theft rationale is robust and independent: Robbery and burglary provide a separate, self‑standing basis to uphold dispossession, reinforcing that property‑felony predicates will typically foreclose as‑applied challenges in the Fifth Circuit.
As‑applied challenges in the Fifth Circuit will be difficult where any violent or theft predicate exists: Defense litigants with such records face an uphill climb. The court’s “a fortiori” reasoning from Diaz (if car theft qualifies, violent felonies certainly do) tightens the analytical net.
No temporal limitation: The opinion relies on decades‑old Illinois robbery and burglary convictions (1994, 1996) without suggesting recency as a constitutional variable. The statute’s text contains no look‑back limit, and the panel imposes none.
Record scope and procedure remain developing: The majority’s recounting of underlying facts, alongside elements analysis, and the concurrence’s call for clearer guidance foreshadow future procedural debates about how district courts should conduct dangerousness analyses (e.g., permissible materials, finder of fact, burdens of proof).
Cross‑circuit context and pending Supreme Court activity: The concurrence notes widespread circuit deference to felon dispossession and references a pending cert petition from Diaz. Further Supreme Court clarification could unify approaches—either endorsing categorical felon disarmament or prescribing a calibrated as‑applied framework.
Practice pointers:
- For the Government: Build the historical record through either or both lines—violent‑offender disarmament and Founding‑era theft punishments. Where possible, document the predicate’s elements and salient facts.
- For the Defense: Viable as‑applied challenges are most plausible where predicates are non‑violent and non‑theft regulatory felonies, and where personal history substantially undercuts any dangerousness inference. Even then, Diaz’s breadth is a significant hurdle in the Fifth Circuit.

Complex Concepts Simplified

As-applied vs. facial challenge:
- As‑applied: Attacks the statute’s constitutionality as applied to a particular person or set of facts (e.g., a defendant with specified predicates).
- Facial: Argues a statute is unconstitutional in all (or virtually all) applications. Schnur is as‑applied.
Bruen’s two-step test:
- Step 1: Does the Second Amendment’s plain text cover the person’s conduct? If yes, protection is presumed.
- Step 2: The Government must show the regulation is consistent with the Nation’s historical tradition of firearm regulation, typically through relevantly similar Founding/Reconstruction‑era analogues.
“Going armed” and “affray” laws: Early Anglo‑American laws penalizing public carriage of weapons in a threatening manner or public fighting, often by fines, imprisonment, or arms forfeiture. Rahimi revived these as apt analogues for modern measures that disarm individuals who threaten violence.
Dangerousness: A historical-and-functional concept capturing those who pose a material risk of violence or disorder. Courts often treat violent felonies as strong—sometimes dispositive—evidence of dangerousness.
“Crime of violence” (Borden): In federal sentencing contexts, an offense with the “use, attempted use, or threatened use of physical force” against another and at least a knowing or purposeful mental state. Florida aggravated battery qualifies because it requires intentionally or knowingly causing great bodily harm.
“A fortiori”: Latin for “with stronger reason.” If the law permits disarmament for a less severe predicate (e.g., theft), it follows a fortiori that disarmament is permissible for a more severe predicate (e.g., aggravated battery).
Nolle prosequi (“nolle prossed”): A prosecutor’s formal decision to discontinue a charge. Schnur’s 2016 Florida burglary and petit theft charges were nolle prossed, though he pleaded to aggravated battery and a lesser improper-exhibition offense.
De novo review: The appellate court decides the constitutional question anew, without deference to the district court’s reasoning. In Schnur, this mooted claimed analytic missteps below.

Conclusion

United States v. Schnur consolidates the Fifth Circuit’s post‑Bruen approach to § 922(g)(1). It does three things with notable clarity: (1) it reaffirms that felons fall within “the people,” thus placing the historical burden on the Government; (2) it confirms that violent felonies—even without firearm use—fit within the historic tradition of disarming dangerous persons; and (3) it endorses Diaz’s independent theft‑predicate rationale, holding that robbery and burglary likewise foreclose as‑applied challenges. Together, these strands make as‑applied Second Amendment challenges to § 922(g)(1) exceptionally difficult for defendants with violent or theft records in the Fifth Circuit.

Judge Higginson’s concurrence flags a live methodological tension: whether courts should continue crafting case‑specific historical analyses for each predicate, or instead hew to cross‑circuit deference to the Supreme Court’s assurances about felon disarmament. Until the Supreme Court speaks more definitively—especially with Diaz now at the certiorari stage—Schnur stands as a comprehensive template in the Fifth Circuit for upholding § 922(g)(1) where a defendant’s criminal history reflects either dangerous violence or historically serious property felonies. The key takeaway is straightforward: under Bruen, the longstanding traditions of disarming the dangerous and severely punishing thieves comfortably support dispossessing individuals with Schnur’s record.