Two cases raise Commerce Clause and Second Amendment issues.
On September 14, the Fifth Circuit granted rehearing en banc in United States v. Cordova, a Second Amendment challenge to the lifetime felon gun ban, 18 U.S.C. § 922(g)(1). That followed the July 20 en banc rehearing grant in United States v. Squire, a challenge to the same prohibition under the Commerce Clause. These matters probe whether Congress possessed the authority in the first place, and if so, whether that authority is permissible to exercise?
As I noted previously, Squire presents “a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home in light of our Nation’s historical tradition of firearm regulation.” As Senior Judge Edith Brown Clement explained in the opinion, “our historical tradition supports disarming drug traffickers based on their dangerousness….” That issue, together with Squire’s Commerce Clause challenge, was deemed foreclosed by circuit precedent. Section 922(g)(1) requires as an element that the person did “possess [a firearm] in or affecting commerce,” or did receive a firearm “which has been shipped or transported in interstate or foreign commerce.”
Earlier attempts to curb Congress under the Commerce Clause included U.S. v. McFarland (2002), in which the evenly divided, en banc Fifth Circuit left in place a district court ruling upholding the Hobbs Act, 18 U.S.C. § 1951, as applied to a defendant who robbed local convenience stores with no interstate-commerce nexus. Relying on the Supreme Court’s rulings in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent.
Squire’s petition for rehearing en banc is limited to whether the gun ban falls within the Commerce Clause. Beginning with U.S. v. Lopez (1995), he contends, the Supreme Court has held that “while the Commerce Clause permits regulation of economic activities that substantially affect interstate commerce, it does not authorize plenary federal regulation of noneconomic activity, including mere firearm possession.”
When the petition was granted, Judge Stephen A. Higginson wrote a dissent, stating: “In the context of § 922 convictions alone, such a holding would raise several immediate questions. Can felons from the other eleven circuits now flood the Gulf Coast to rearm themselves? … More broadly, what would come of the countless other federal statutes hinging on Congress’s well-settled commerce authority?”
Turning to the Cordova matter, the per curiam opinion highlighted felony convictions for drug possession, which may not count in the same way anymore, and for evading arrest with a motor vehicle. The Second Amendment challenge was readily dismissed: “Given that ‘vehicular pursuits’ are ‘often catastrophic,’ Cordova’s choice to use a car to escape pursuit evidences his dangerousness…. Cordova’s actions posed a risk to his fellow citizens and demonstrate that he presents a credible threat to the physical safety of others.” Yet two judges on the panel joined only in the judgment.
Judge James C. Ho framed his concurrence with an opening assertion: “The right to keep and bear arms under the Second Amendment is a fundamental civil right, comparable to other provisions of the Bill of Rights.” The felon gun ban “imposes a lifetime ban on firearm possession. And it does so even if the individual has never been sentenced to spend a single day in prison.” Cordova himself had not been sentenced to any prison time. The Supreme Court in Rahimi held only that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” In a concurrent view, Justice Gorsuch noted that “[w]e do not resolve whether the government may disarm an individual permanently.” Judge Ho concluded by reiterating that the ban “disarms individuals for the rest of their lives, regardless of whether the individual has been convicted of a violent crime or spent a single day in prison,” but that “this case does not present a challenge to lifetime disarmament under § 922(g)(1).”
Also concurring in the judgment, Judge Andrew S. Oldham opened with: “The Second Amendment reflects a fundamental, God-given right that long predates our Nation’s Founding….” Describing Fifth Circuit precedent based on U.S. v. Diaz (2024) as “historically bankrupt,” he colorfully wrote: “Rather than join the White Rabbit for another journey into our circuit’s § 922(g)(1) Wonderland, it is time to say enough is enough. Diaz must go.” He criticized Diaz for asking whether an offense was punishable by death at the founding—a premise never used to justify depriving a convicted person of constitutional rights—and for relying on two initial, unsuccessful arguments at the founding of the Constitution (you have to consult Diaz to find them—the Dissent of the Minority in Pennsylvania (1787) and Samuel Adams’ failed proposal for an arms guarantee in the Massachusetts convention (1788)).
Most of Judge Oldham’s opinion traces the history of how the right to keep and bear arms came to be. Regardless of the justifications offered for disarming certain groups, “all agreed that the legality of disarming seventeenth-century Englishmen depended on dangerousness.” He concludes:
As this analysis shows, assessing a defendant’s as-applied challenge to § 922(g)(1) requires a historical lens. It demands looking beyond a single predicate conviction and considering whether the individual is dangerous. That approach aligns with the long English and American history of disarming dangerous individuals. Cordova’s criminal history and characteristics demonstrate that he is dangerous. I would rely on that dangerousness analysis, rather than Diaz’s incoherent legal standard, to find that Cordova’s constitutional challenge fails.
With that, the Fifth Circuit granted Cordova’s petition for rehearing en banc. His convictions were not for offenses as trivial as a welfare-fraud conviction from Range v. Attorney General U.S. (3d Cir. 2024).
