The Fifth Circuit Court of Appeals voted Monday to rehear a felon-in-possession case that could strip Congress of the authority it has relied on for decades to prosecute millions of Americans for gun possession, following a pointed call from Justice Clarence Thomas to rethink the constitutional foundation of one of the most-used federal gun statutes on the books.
The case, United States v. Squire, started as a fairly routine Second Amendment challenge. Curtis Squire, a convicted felon with a lengthy criminal record including drug trafficking and firearms convictions, was charged under 18 U.S.C. Section 922(g) after police found a handgun in his New Orleans home during a search warrant execution tied to a shooting investigation. The gun was never linked to the shooting. State charges were dropped. But federal prosecutors went ahead under the felon-in-possession statute because of Squire’s prior record.
What should have been a narrow case has now become something far larger.
The full Fifth Circuit voted to rehear the case en banc, just weeks after Thomas issued a concurrence in United States v. Hemani urging lower courts to examine whether Congress even has the power to enact Section 922(g) in the first place. His argument: the Commerce Clause gives Congress authority to regulate the buying and selling of goods crossing state lines. It does not give Congress a blank check to criminalize simple possession of a firearm just because that firearm once crossed a state line years earlier.
“Congress cannot regulate the possession of every thing that ever traveled across state lines,” Thomas wrote in Hemani. He warned that reading the Commerce Clause that broadly risks turning it into “a general police power of the sort retained by the States.”
Thomas concluded that courts “should revisit the constitutionality of Section 922(g).”
The Fifth Circuit’s decision to take up Squire signals that at least some judges agree the question is worth asking. The court sharply divided on the move, however. Judge Stephen Higginson dissented with force, warning that the case has drifted far beyond its Second Amendment origins into territory that could unravel federal criminal law wholesale.
“Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons?” Higginson asked in his dissent.
To be clear: this case is not about letting violent felons walk free. The practical question of whether dangerous people should be allowed to have guns is separate from the constitutional question of whether Congress actually had the authority to criminalize it this way. Those are two different arguments, and courts are now being asked to separate them.
Section 922(g) has been the backbone of federal gun prosecutions for decades. The federal government leans on it constantly, and not just for cases like Squire’s. It covers felons, domestic violence misdemeanants, fugitives, drug users, and others. If the Fifth Circuit rules that Congress lacked Commerce Clause authority to enact it, the consequences would extend well beyond New Orleans.
