“Dual-Trigger” Disarmament after Bruen: Violence or Probation Status Suffices – A Commentary on United States v. Clark (5th Cir. 2025)

Introduction

United States v. Clark, decided on 21 August 2025 by the Court of Appeals for the Fifth Circuit, is the latest installment in the post-New York State Rifle & Pistol Association v. Bruen jurisprudence on 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute. Ernest Quintez Clark, already on Louisiana probation for aggravated assault with a firearm, pleaded guilty to possessing a firearm while a convicted felon. On appeal he asserted that permanent disarmament violated the Second Amendment, equal protection, and the Commerce Clause. The Fifth Circuit, per Judge Jerry E. Smith, affirmed. The court crystallised a “dual-trigger” rule: a § 922(g)(1) conviction survives an as-applied Second Amendment attack if either of two conditions is met: (1) the predicate offense is violent, or (2) the defendant possessed a gun while on post-conviction supervision (probation, parole, or supervised release). This commentary unpacks the ruling, its reasoning, and its prospective influence.

Summary of the Judgment

• Second Amendment Claim (As-Applied): The court held that disarming Clark comports with the Nation’s historical tradition because (a) aggravated assault with a firearm is a paradigmatic violent crime warranting disarmament and (b) Clark possessed the gun while on probation, independently fatal to his challenge.
• Equal Protection Claim: Dismissed as barred by Clark’s plea-agreement appeal waiver; even if reached, existing precedent forecloses it.
• Commerce Clause & Facial Bruen Challenge: Conceded as foreclosed by precedent (Alcantar and Diaz).
• Holding: “Disarming violent felons and those in possession of a firearm while on probation accords with the Nation’s history and tradition of firearm regulation.” Conviction affirmed.

Analysis

A. Precedents Cited and Their Influence

1. District of Columbia v. Heller, 554 U.S. 570 (2008) – Introduced the individual right to keep and bear arms yet recognised historical limits.
2. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) – Provided the two-step “text & history” test for firearms regulations. Clark’s challenge is assessed under this framework.
3. United States v. Rahimi, 602 U.S. 680 (2024) – Confirmed that historical tradition supports disarming individuals who threaten or misuse firearms, serving as the Supreme Court backdrop for violent-felon analysis.
4. Fifth Circuit trio on violent felons:
   • United States v. Bullock, 123 F.4th 183 (5th Cir. 2024)
   • United States v. Isaac, 2024 WL 4835243 (5th Cir. 2024)
   • United States v. Schnur, 132 F.4th 863 (5th Cir. 2025)
   These cases laid groundwork that aggravated assault or similar violence “dooms” an as-applied challenge.
5. United States v. Contreras, 125 F.4th 725 (5th Cir. 2025) – Held that firearms possession while on supervision is historically disqualifying; Clark extends and reinforces this reasoning.
6. Plea-waiver authority: United States v. Higgins, Portillo-Munoz.

B. The Court’s Legal Reasoning

1. Step One – Covered Conduct: Possessing a firearm is plainly within the Second Amendment’s text.
2. Step Two – Historical Analogue: The government must show a longstanding tradition of disarming comparably situated persons. The panel found two independent analogues:
   • Violent Felony Analogy: From English common-law “dangerous affray” statutes through 19th-century American bans, violent misuse of weapons has triggered disarmament. Aggravated assault with a firearm epitomises such misuse.
   • Supervision/ Probation Analogy: Historical surety and good-cause laws limited arms-bearing by those deemed dangerous or unwilling to keep the peace. Modern probation parallels these temporary civil disabilities.
   Either analogue suffices; together they extinguish Clark’s claim.
3. Record-Based Rationale: Although the government emphasised violence below, it could rely on probation status on appeal because Second Amendment analysis is “a legal, not factual, inquiry into text and history.” Presentence Report (PSR) and plea stipulations established probation.
4. Plea-Agreement Boundaries: By expressly preserving only the Bruen as-applied issue, Clark waived equal-protection arguments; the court enforced the waiver.

C. Potential Impact

• Cementing the “Dual-Trigger” Rule: After Clark, any § 922(g)(1) defendant falling into either category (violent predicate or possession while on supervision) faces almost insurmountable odds in an as-applied Bruen challenge within the Fifth Circuit.
• Government Litigation Strategy: Prosecutors may now emphasise supervision status as an alternative historical anchor, relieving pressure to litigate the exact nature of a prior conviction.
• Plea-Waiver Drafting: Clark underscores the precision courts give to waiver clauses; defendants must negotiate carve-outs deliberately.
• Inter-Circuit Dynamics: Other circuits (e.g., Third, Seventh) are split on how broadly violent-felon bans comport with Bruen. Clark adds persuasive authority for a wider historical scope and could influence eventual Supreme Court consolidation.
• Supervision-Based Disabilities: The ruling may spill into other rights (voting, Fourth Amendment protections) where courts assess the constitutional consequences of being on probation or supervised release.

Complex Concepts Simplified

• As-Applied vs. Facial Challenge: A facial challenge claims a law is unconstitutional in all scenarios. An as-applied challenge admits the statute is generally valid but unconstitutional as to a specific person or circumstance.
• Bluen Two-Step Test:
  1. Does the regulated conduct fall within the Second Amendment’s text?
  2. If yes, is the regulation consistent with historical firearm laws?
  No balancing of governmental interest is permitted.
• Presentence Report (PSR): A document prepared for sentencing, detailing the defendant’s background. It can be referenced on appeal when uncontested.
• Appeal Waiver: A clause in a plea agreement where the defendant limits future appellate rights. Courts enforce such waivers if they are knowing, voluntary, and unambiguous.

Conclusion

United States v. Clark fortifies the Fifth Circuit’s post-Bruen edifice by confirming that either violent criminal history or possession during probation suffices to uphold felon-disarmament under § 922(g)(1). The decision tightens the window for successful as-applied Second Amendment challenges and signals that historical inquiry can rely on multiple, independent analogues. Equally important, Clark warns defense counsel about the exacting construction of appeal waivers. As national courts grapple with Bruen’s historical-tradition mandate, Clark’s “dual-trigger” framework will likely resonate far beyond the Fifth Circuit, shaping the constitutional boundaries of firearm regulation for years to come.