Key Takeaways
- The Fifth Circuit Court of Appeals will rehear United States v. Squire en banc, potentially challenging federal gun law significantly.
- Curtis Squire argues under the Commerce Clause that Congress lacks authority to criminalize simple gun possession since it doesn’t involve interstate commerce.
- Justice Clarence Thomas’s recent concurrence in another case prompted the Fifth Circuit to reexamine the constitutionality of § 922(g).
- Judge Stephen Higginson warns a ruling against this statute could limit Congress’s commerce power and affect various federal laws.
- The case will likely go to the Supreme Court, impacting future firearm regulations if the Fifth Circuit rules against § 922(g).
Estimated reading time: 4 minutes
NEW ORLEANS, LA — The full Fifth Circuit Court of Appeals voted Monday to rehear United States v. Squire en banc, vacating a June panel opinion and setting up what could become the most consequential challenge to federal gun law in decades.
Here’s the surprising part. The case is no longer really about the Second Amendment.
Curtis Squire was convicted under 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute, after police found a handgun in his New Orleans home. His prior convictions include heroin trafficking and burglary. On June 2, a three-judge panel rejected his Second Amendment challenge, holding that history supports disarming drug traffickers based on dangerousness.
His petition for rehearing shifted the fight to different ground: the Commerce Clause. Squire argues Congress never had the constitutional authority to criminalize simple gun possession in the first place, because a firearm sitting in a Louisiana home is not interstate commerce.
That argument has been dead on arrival in every federal circuit for thirty years. The Fifth Circuit itself held in 2001 that the constitutionality of § 922(g) “is not open to question.”
What changed? A few weeks ago, Justice Clarence Thomas wrote a solo concurrence in United States v. Hemani asking lower courts to reexamine whether § 922(g) actually fits within Congress’s commerce power. Monday’s order shows a majority of the Fifth Circuit’s active judges are ready to take him up on it.
Judge Stephen Higginson dissented from the grant, warning the court is reaching far beyond gun law. He noted that § 922(g), unlike the school-zone statute the Supreme Court struck down in Lopez in 1995, contains an explicit interstate commerce element, and that Squire admitted in his plea that the gun and ammunition crossed state lines.
Higginson wrote that a ruling against the statute “would mark the start of a new, severely contracted Commerce Clause era.” He listed the fallout: federal possession bans on explosives and biological weapons, financial regulations, intellectual property law, and endangered species protections all rest on the same commerce power. He also asked whether prohibited persons from other circuits could “flood the Gulf Coast to rearm themselves.”
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For gun owners, this case cuts in an interesting direction. Nobody is shedding tears for a heroin trafficker. But the Commerce Clause is the constitutional hook Congress uses for nearly every federal firearm statute on the books. If the en banc court holds that Congress overstretched that power with § 922(g), the reasoning would put a hard ceiling on what future Congresses can do, including national registration schemes and possession bans that gun control groups push every session.
The federal government has enforced § 922(g) on the theory that any gun that ever crossed a state line is fair game for federal regulation forever. That is a breathtaking claim of power, and it deserves the scrutiny it is finally getting.
The en banc court will set a briefing schedule and hear oral argument on a date to be fixed. Whatever the Fifth Circuit decides, this one is almost certainly headed to the Supreme Court. I’ll be tracking it.
