United States v. Clark
Facts
Clark was on probation for a Louisiana felony conviction of aggravated assault with a firearm when he was found possessing another firearm. He was then indicted under § 922(g)(1) for being a felon in possession. In the district court, he argued that § 922(g)(1) was unconstitutional as applied to him under Bruen, and also raised Fifth Amendment and Commerce Clause challenges. His plea agreement waived appeal except for a direct appeal of the district court’s order regarding his Bruen motion to dismiss.
Issue
Whether § 922(g)(1), as applied to Clark, violates the Second Amendment where his predicate felony was aggravated assault with a firearm and he possessed a firearm while on probation. Also, whether Clark could pursue his Fifth Amendment equal protection challenge despite his appeal waiver.
Rule
Under the Bruen framework, courts first ask whether the Second Amendment’s plain text covers the individual’s conduct; if so, the government must show that the regulation is consistent with the Nation’s historical tradition of firearm regulation. In the Fifth Circuit, as-applied challenges to § 922(g)(1) fail where the defendant’s criminal history falls within recognized categories such as violence, and where the defendant possessed a firearm while on probation or similar release status. An appeal waiver bars an appeal when it is knowing and voluntary and, by its plain language, covers the issue raised.
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Under the Fifth Circuit majority's reasoning, which is the strongest basis for rejecting Marcus's as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(1)?